Judging the Data
Prompted by recent U.S. Supreme Court rulings, judges are more actively weighing science on the scales of justice to decide for themselves whether new research is sound enough to be presented to a jury.
From homicide and rape cases to product liability claims and complex antitrust litigation, courtroom proceedings today increasingly hinge on nuances of new technology, science or medicine, according to a recent federal courts study commission.
Yet when it comes time to decide what scientific evidence should be admissible in court, judges have little more to guide them than the conflicting testimony of expert witnesses and unsolicited advice--in the form of amicus curiae briefs--from interested onlookers.
In frustration, a handful of judges are appointing their own neutral experts to help sort through a dizzying array of contentious technical questions that bedevil courts across the country:
Are repressed memories real? Can a diet pill cause heart damage? Do silicone implants affect the immune system? Are voice prints and lie detector tests reliable? What about evidence based on mitochondrial DNA? What kind of computer code belongs in an operating system? Is a frozen embryo a person?
In Massachusetts, a federal judge recently named a Harvard Medical School professor to serve as the court’s scientific “sounding board” in a genetic engineering dispute. In Michigan, a judge brought in a medical expert to testify about so-called partial-birth abortions--not on behalf of the defense or prosecution, but the court itself. In Washington, D.C., a judge enlisted a computer expert to dissect Microsoft software, while federal judges in Oregon and Alabama, overseeing breast implant litigation, each appointed an independent science panel to evaluate medical evidence at the edge of the unknown.
*
In formal remarks to a major gathering of scientists and in an open-ended discussion with reporters, U.S. Supreme Court Justice Stephen Breyer recently encouraged judges to seek their own independent experts in complex cases, effectively elevating the role of scientists in the courtroom.
“Scientific issues permeate the law,” Breyer said during a meeting of the American Assn. for the Advancement of Science in Philadelphia. “I believe [that] in this age of science we must build legal foundations that are sound in science as well as in law. The result, in my view, will further not only the interests of truth but also those of justice.
“The question,” he said, “is how you can get better science into the courtrooms.”
To that end, Breyer endorsed an experimental project being organized by the association’s national conference of scientists and lawyers. The project will make neutral scientific experts available to any federal judge trying to resolve a complex technical dispute.
The five-year pilot program, expected to begin within the year, arises from the belief that “junk science” is permeating the courts with novel, but unsupportable, legal claims.
“We have had a long concern about the quality of scientific testimony and experts in the courtroom,” said Deborah Runkle, the senior associate of the science group who is organizing the program.
“I don’t think scientists should be advocates for either side in a dispute. They should be advocates for good science,” she said. “In difficult cases, it will behoove judges to obtain their own experts, whose only loyalty is to the court.”
More than any esoteric technical disagreement, courtroom combatants may be wary of conflicts of interest that could bias the advice a scientist gives a judge. Indeed, lawyers for Microsoft recently moved to disqualify the computer guru employed by the judge in that antitrust case because he was, they argued, prejudiced against the company’s products.
Runkle said the science association will try to eliminate any experts offered in a particular case who would have obvious conflicts of interest with any of the parties involved. Should judges choose, she said, the group will make available a slate of neutral experts from which the court can pick. They could even solicit any concerns about possible conflicts in advance, to ensure that a court can trust its science advisor to be free from bias.
Despite the difficulties, Breyer said, it is increasingly important that judges find a better way to handle technical controversies, even though certainty can be as elusive in the realm of science as it is at the cutting edge of case law.
*
“I am perfectly aware that many questions do not have definite scientific answers, but still there are some scientific propositions that are somewhat better than others,” the justice said.
Breyer cautioned that his endorsement of independent experts was only a “nudge,” but it carried special weight because he is considered an expert on risk assessment in the courts. Indeed, he helped craft a key Supreme Court decision, announced in December, that reinforced the power of judges to block evidence not supported by science.
In a case that revolved around whether a judge could rightfully exclude unreliable scientific evidence, Breyer urged jurists to solicit help by using independent specialists in pretrial hearings, appointing special masters or hiring law clerks with special technical training.
The ruling reinforced a judge’s legal responsibility to serve as a gatekeeper in cases involving scientific disputes, with wide latitude in sorting through evidence “not to resolve the scientific matter, but to keep unsound, unhelpful, unreliable information away from the jury.”
Breyer said, “We must search for law that reflects an understanding of the relevant underlying scientific art.
“The search is not a search for scientific precision. . . . A judge is not a scientist, and a courtroom is not a scientific laboratory,” Breyer said.
“The law must seek decisions that fall within the outer boundaries that mark the scientifically sound--decisions that, roughly speaking, reflect the scientific ‘state of the art.’ ”
(BEGIN TEXT OF INFOBOX / INFOGRAPHIC)
Scientific Decisions
A handful of judges are appointing their own neutral experts to help sort through a dizzying array of technical questions that bedevil courts across the country.
*
Silicone Breast Implants
* Do silicone implants cause injury or illness? Inconsistent verdicts across the country lead federal judges in Alabama and Oregon to appoint scientific panels to examine scientific evidence. In Oregon, judge throws out 70 cases, with potentially far-reaching effects.
*
Mitochondrial DNA
* Pennsylvania judge rules that mitochondrial DNA, which contains only maternal genetic material, can be admitted as evidence in a criminal trial, but that testimony regarding mitochondrial DNA matching will be limited.
*
Product Safety
* In a 1993 product liability case, U.S. Supreme Court rules that admissible evidence must be both reliable and relevant, and places more responsibility on judges to act as “gatekeepers.”
*
Gene Patents
* Federal judge in Boston assigns a physician, an expert in molecular biology, to examine scientific evidence in patent infringement suit involving recombinant DNA technology.
*
Partial-Birth Abortions
* Federal judge in Detroit calls in a University of Michigan professor to examine medical evidence and advise the court of medical procedures and terminology. The judge overturns Michigan ban on so-called partial-birth abortions, saying it is “overbroad.”
