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USING FIELD METHODS - EXPERIENCES AND LESSONS: DEFENSIBILITY OF FIELD DATA Barton P. Simmons Chief, Hazardous Materials Laboratory Department of Toxic Substances Control 2151 Berkeley Way, Room 515 Berkeley, CA 94704 [email protected] SUMMARY One perceived obstacle to the use of field methods is the legal defensibility of field data. The standards which are used by the courts are quite different than the standards used in the environmental testing community. The rules on the acceptability of scientific evidence are different in federal courts than in some state courts. The federal rules were changed significantly by the Daubert v. Merrell-Dow decision handed down by the U.S. Supreme Court in 1993. In that decision, the Supreme Court gave judges considerable latitude to decide what evidence was relevant and reliable. California, on the other hand, still uses a standard based on “techniques which are generally accepted by the scientific community.” Neither the federal nor California standards for admissibility distinguish between analysis done in a fixed laboratory and analysis done in the field. Nor do the standards require adherence to methods approved by U.S. EPA or other standard-setting organizations. In one California case, People v. Hale, there were major deviations from the relevant EPA method, but an appeals court found that the deviations were harmless and allowed the data to be used. In order for data to be accepted as evidence, whether the data come from a fixed laboratory or the field, the technique may need to generally recognized in the scientific community (state standard), and must be shown to be relevant and reliable (federal standard). Once evidence has been accepted, the weight which is given to the evidence may depend on a variety of factors, including the training and experience of the personnel, the accuracy of the equipment, and the reliability of the method. The rules for the defensibility of field methods are no different than those for fixed laboratory methods. INTRODUCTION A real obstacle to the wider use of field methods is the perception that field data are legally less defensible than fixed laboratory data. To actually examine this perception, it is necessary to examine the actual legal standards which are used for scientific data. Although environmental scientists have their own standards for analysis, the actual standards for the legal defensibility of
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This note was uploaded on 08/06/2008 for the course ESM 235 taught by Professor Dunne during the Winter '08 term at UCSB.

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