Teach Judges to Think Like Scientists
The time has finally arrived for our nation's federal judges to temporarily remove their black judicial robes in order to get fitted for their new white laboratory coats. A recent Justice Department report revealing "extremely serious and significant problems" in the Federal Bureau of Investigation's crime laboratory has confirmed that no longer can federal judges rely upon top governmental scientific experts to present valid and unbiased expert testimony in cases involving complex scientific and technology-based issues. As a result, judges must now, more than ever, be prepared to critically evaluate the scientific expert testimony proffered by both parties in criminal and civil trials.
The report came as no surprise to many critics of our nation's criminal justice and tort systems who have repeatedly called for judicial reform in light of the numerous cases in which "junk science" has made its way into the courtroom and influenced unwary juries. Peter Huber, a leading critic of our nation's tort system and author of Galileo's Revenge: Junk Science in the Courtroom, has denounced plaintiffs' attorneys and their well-paid scientific experts for taking advantage of the system in order to make a killing, writing that "scientific humbuggery in court has become an immensely profitable business."
While most of the recent media attention has been focused on the flawed scientific practices in the FBI crime lab and the particular scientific experts who have given tainted expert testimony in numerous trials, little attention has been given to the role that federal judges play in determining the admissibility of scientific expert testimony.
For much of this century, judges have relied upon the general acceptance standard first articulated in 1923 in Frye v. United States. In Frye the court held that an expert's testimony "must be sufficiently established to have gained general acceptance in the particular field in which it belongs."
However, critics contended that the general acceptance standard prevented courts from giving consideration to recent scientific advances and novel scientific theories.
In 1975, Congress enacted the Federal Rules of Evidence to further clarify the standards for determining the admissibility of expert scientific testimony. In particular, Rule 702 stated that "If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise." However, there remained much uncertainty in the courts as to whether or not the Rules superseded the general acceptance standard.
In 1993, the U.S. Supreme Court finally addressed these crucial issues in Daubert v. Merrell Dow Pharmaceuticals, Inc. In the majority opinion written by Justice Harry Blackmun, the Court concluded that "'general acceptance' is not a necessary precondition to the admissibility of scientific evidence under the Federal Rules of Evidence, but the Rules of Evidence -- especially Rule 702 -- do assign the trial judge the task of ensuring that an expert's testimony both rests on a reliable foundation and is relevant to the task at hand." In particular, the Court stated that the trial judge must assess whether or not "the reasoning or methodology underlying the testimony is scientifically valid and whether that reasoning or methodology properly can be applied to the facts in issue."
In a part concurring, part dissenting opinion, Chief Justice Rehnquist stressed that while Rule 702 requires judges to assume the role of scientific gatekeepers, it does not impose on them "the obligation or authority to become amateur scientists to perform that role."
Although the Supreme Court expressed its utmost confidence in the abilities of federal judges to successfully fulfill their scientific gatekeeping duties, what led the Court to believe that a judge who received a bachelor's degree in political science has the inherent ability to sift through loads of complex statistical and experimental data from unpublished toxicological and epidemiological studies and make determinations as to whether or not the scientific methods employed by the expert are valid?
From where did the Court derive its confidence that if 10 federal judges with no formal scientific education under their belts were faced with assessing the validity of a novel scientific theory, there would be consistency amongst their judgments?
While many of us in the scientific community remain skeptical of the abilities of federal judges to carry out these gatekeeping duties, there are a number of resources which judges may turn to for assistance. In 1994 the Federal Judicial Center published a Reference Manual on Scientific Evidence which outlines the basic procedures for assessing the validity and reliability of an expert's testimony. The FJC and the National Judicial College have also sponsored seminars on topics such as adjudication of DNA evidence in criminal cases and Forensic, Medical, and Scientific Evidence.
The educational resources exist -- it is just a matter of requiring judges to actively participate in these and other programs which will further their scientific education and better prepare them for their challenging roles as scientific gatekeepers.
Certainly no one expects our nation's judges to show up for work in white lab coats. But perhaps for an hour or two each week judges can sport their coats while reading the latest issue of Science magazine, attending a seminar on toxicology, or taking a visit to the crime lab.