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Policy

Judging Science

As gatekeepers of science in court, judges must bridge the worlds of science and the law

by William G. Schulz
February 27, 2006 | A version of this story appeared in Volume 84, Issue 9

Justice
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Judges are the gatekeepers of scientific evidence in court, which underscores their need to understand scientific issues.
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Judges are the gatekeepers of scientific evidence in court, which underscores their need to understand scientific issues.

In court and among legal scholars, there is a phenomenon known as "the CSI effect"—the near-demand by jurors, inspired by the popular television series, to see scientific evidence in court. But the reality is, before a jury ever sees or hears scientific evidence, it first has to pass the scrutiny and deliberation of a judge.

In state and federal courtrooms, judges are the gatekeepers of scientific evidence. They decide in pretrial hearings what is excluded from court and what can be presented to a jury. And as the weight and complexity of scientific issues in court have increased—and they demonstrably have, say many legal scholars—the abilities and the needs of judges have become a focus of concern in both the legal and scientific communities.

The stakes are clear. A judge's decisions on scientific evidence can determine if a multi-million-dollar civil case settles, goes to a jury, or ends on a motion for summary judgment. In criminal proceedings, a judge's pretrial decisions on scientific evidence can be sufficient to exonerate or put a defendant behind bars. And once a case is decided, scientific evidence can influence the size of awards to plaintiffs or sway a judge's decision on criminal penalties, including the death penalty.

Case law guiding judges on expert and scientific testimony has underscored their responsibilities and their need to understand scientific issues. But a great deal of debate continues over just how much scientific knowledge judges must have and how they should wield these responsibilities.

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Credit: Photo By Louis Colussi
Domitrovich
Credit: Photo By Louis Colussi
Domitrovich

"I join colleagues in law, the academy, and forensic sciences, in recognizing that, increasingly, scientific and technical matters are in the courtroom and that, as Justice Stephen G. Breyer has written, 'the courts and the scientific community [must] build on the relationships that have already begun,'" said Shirley S. Abrahamson, chief justice of the Wisconsin State Supreme Court at a colloquium on forensic science and the law hosted late last year by the National Academy of Sciences (NAS) in Washington, D.C. Much of the discussion at the symposium concerned how to bridge the worlds of science and the law. But Abrahamson also pointed out a common barrier: "I am a lawyer and a judge in part because I didn't want to study science of any sort."

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Credit: Courtesy of Brooklyn Law School
Berger
Credit: Courtesy of Brooklyn Law School
Berger

"It's remarkable that NAS put together this colloquium," said discussant Margaret A. Berger, a law professor at the Brooklyn Law School and an expert on scientific evidence. "It's a situation that has not been looked at adequately in courts. In civil court, there's lots of pressure for courts to do something about scientific evidence. In criminal court, a defendant often loses because there is no real scrutiny of [forensic] science evidence."

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Credit: Courtesy of Nancy Gertner
Gertner
Credit: Courtesy of Nancy Gertner
Gertner

Indeed, judges routinely weigh many different kinds of scientific evidence on a variety of legal matters. Toxic tort and product liability cases might include mountains of epidemiological or environmental data. Patent suits might include testimony on chemical formulations or industrial processes and procedures. In medical malpractice suits, judges might be asked to consider the testimony of many different medical specialists, each with a different opinion. And there may be evidence and experts not easily labeled "scientific." But judges must decide that, too: Should they exclude the evidence before a trial begins or leave questions of credibility to cross-examination in front of a jury?

In New Orleans recently, U.S. District Court Judge Eldon E. Fallon ruled on the admissibility of testimony from a range of scientific experts presented by both sides in Evelyn Irvin Plunkett v. Merck & Co., Inc., one of several thousand cases involving the drug Vioxx included in federal multidistrict litigation proceedings. An MDL consolidates cases before a single federal judge for resolution of common procedural and evidentiary issues.

Fallon decided that he will allow almost all testimony from experts presented by plaintiffs and the defense. Plaintiffs claim injury, including death, from Vioxx; Merck has been battling similar suits around the country with mixed results.

Fallon's pretrial decision on the scientific evidence proffered by both sides is referred to as a Daubert analysis, so named for the Supreme Court's landmark 1993 decision in Daubert v. Merrell Dow Pharmaceuticals. Plaintiffs in that case alleged that they suffered birth defects caused by the morning sickness drug Bendectin taken by their mothers. The issue of expert testimony and how judges are to go about deciding what to admit into court was at the heart of the Supreme Court ruling.

Lawsuits
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A federal judge in New Orleans has ruled that scientific evidence proffered by both sides can be presented in consolidated Vioxx product liability cases in his courtroom.
Dec 27, 2004; Los Angeles, CA, USA; The popular arthritis drug Celebrex more than doubled heart attacks in people enrolled in a cancer-prevention study, Celebrex maker Pfizer announced. The large study was designed to see whether Celebrex could prevent colon cancer in people who'd had colon polyps. Those who took Celebrex had 2.5 times as many fatal and nonfatal heart attacks as those who did not take the drug. People enrolled in the trial, called the APC trial, are being told to stop taking their study medication. Celebrex is in the same family of drugs as Vioxx. Vioxx was pulled from the market after a colon cancer prevention trial found it increased the risk of heart attacks. Pfizer also makes Bextra, another drug in this family of drugs, called Cox-2 inhibitors. "Pfizer is taking immediate steps to fully understand the [APC study] results and rapidly communicate new information to regulators, physicians, and patients around the world," Pfizer CEO Hank McKinnell says in a news release. Pictured; Vioxx pill.
Mandatory Credit: Photo by Marianna Day Massey/ZUMA Press.
(©) Copyright 2004 by Marianna Day Massey
Credit: NewsCom/Zuma Press
A federal judge in New Orleans has ruled that scientific evidence proffered by both sides can be presented in consolidated Vioxx product liability cases in his courtroom.

As Judge Fallon wrote in his recent Vioxx ruling: "The Supreme Court set forth a nonexclusive list of factors to consider in determining the scientific reliability of expert testimony. These factors are whether the theory has been tested; whether the theory has been subject to peer review and publication; the known or potential rate of error; whether standards and controls exist and have been maintained with respect to the technique; and the general acceptance of the methodology in the scientific community."

At the NAS colloquium, Abrahamson said: "Daubert's basic holding is the judge must be persuaded by a preponderance of evidence that the basis for the expert testimony is valid or dependable. The issue about Daubert is whether it has judges in over their heads." She cautioned that Daubert might seem to cast judges themselves in the role of scientific experts.

In fact, Abrahamson continued, judges are confused about how to put Daubert into effect. "Daubert was supposed to relax the barriers to experts. That was the goal. It doesn't appear to be working that way."

Former U.S. District Court judge Fern M. Smith disagrees. She helped amend the federal rules of evidence upon which Daubert is based. Daubert, she says, "put more responsibility on judges. It made us the gatekeepers and requires us to take a serious look at scientific evidence."

While Daubert may have been a shock at first, she says most judges on the federal bench "have gotten used to the dividing line between our role and what should go to a jury. It slowed down a growing trend of junk science that was coming into court, especially in civil cases."

What's more, Smith says, "Daubert has had a significant consciousness-raising effect" that has extended to state courts, civil and criminal. Whether they have explicitly adopted the Daubert standard, "those courts are following what the Supreme Court had in mind with Daubert."

In California, for example, a closely watched case concerning scientific evidence—Antonio Aguilar, et al. v. ExxonMobil Corp., et al.—is pending before the state supreme court. The plaintiffs are more than 600 former and current Lockheed Corp. employees. They claim injury by multiple defendants for workplace exposure to organic solvents used for degreasing and cleaning.

Condemned
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A death row inmate in California could not persuade a judge that science would reveal possible evidence tampering in his case.
Mar 20, 2004; San Quentin, CA, USA; San Quentin is California's oldest and best known correctional institution. The prison includes a reception center for new commitments, a parole violator unit, general population units, and a minimum security work crew unit. The state's only gas chamber and death row for all male condemned inmates are located at San Quentin.
Mandatory Credit: Photo by Mark Richards/ZUMA Press.
(©) Copyright 2004 by Mark Richards
Credit: NewsCom/Zuma Press
A death row inmate in California could not persuade a judge that science would reveal possible evidence tampering in his case.

The issues before the court concern scientific expert testimony and the proper role of judges in evaluating that testimony for admissibility. California has not formally adopted the Daubert guidelines, but the court's opinion could change that or further elaborate on the current standard for scientific testimony in the state.

The Daubert decision "has strengthened judges' ability to deal with complex scientific evidence," says Joe S. Cecil, a legal scholar at the Federal Judicial Center (FJC) in Washington, D.C. Today, he says, "judges are being asked to evaluate evidence that even scientists regard as complex."

FJC is a research and education agency of the federal judicial system. Among other services, it provides continuing education for judges, including training on scientific evidence. Since 1994, the center has published a reference manual on scientific evidence for judges. Cecil says a new edition, prepared in collaboration with NAS, is in the works.

A survey of state court judges indicates some of the challenges they face because of Daubert (Law & Human Behavior 2001, 25, 433). According to the paper, "Many of the judges surveyed lacked the scientific literacy seemingly necessitated by Daubert. Judges had the most difficulty operationalizing falsifiability and error rate, with only 5% of the respondents demonstrating a clear understanding of falsifiability and only 4% demonstrating a clear understanding of error rate."

"At the time of the Daubert decision, there was considerable uncertainty about its effect on admissibility of scientific evidence," writes Cecil (Am. J. Public Health 2005, 95, S74). A 1998 survey of judges and attorneys, however, "indicated that judges were more likely to scrutinize expert testimony before trial and to limit or exclude proffered testimony compared with pre-Daubert litigation practice in 1991."

Not everyone thinks that Daubert has been applied successfully. Attorney Bert Black, who represents plaintiffs in product liability and commercial litigation lawsuits and who helped coordinate a friend-of-the-court brief on the Daubert case for the American Association for the Advancement of Science (AAAS) and NAS, says: "Judges are under pressure to look at [scientific evidence] closely, and sometimes they toss out evidence that probably should be admitted. Daubert has led to excluding more evidence than before, but it's not clear the exclusion is any less erroneous than prior decisions to let in questionable evidence. If the goal of Daubert was to bring science and the law into accord, it is not a success. It's elitist and wrong to think that judges are better than a jury at making scientific judgments."

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Credit: Photo By Mike Posey
Feldman
Credit: Photo By Mike Posey
Feldman

"Daubert is definitely misunderstood," says appellate attorney Robert S. Peck, president of the Center for Constitutional Litigation in Washington, D.C. "It's really become a barrier to considering newly developed scientific evidence." He says judges assume that there is only one appropriate approach to scientific questions, which can make it very difficult to get new science into court because it will not have been peer reviewed.

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Credit: Courtesy of Fern Smith
Smith
Credit: Courtesy of Fern Smith
Smith

But in criminal court, Daubert "is finally having an impact," Berger says. Some defense attorneys are using it to mount successful challenges to forensic science evidence. But such challenges can be expensive, and defendants, who are often poor, may have to pay for expert testimony while the government has its own experts and laboratories.

Smith agrees, to a point. "There has been a lot of scientific evidence in criminal cases accepted pretty much without challenge." She cites fingerprint evidence in particular, but also ballistics and even some DNA evidence. But in her court, at least, she says, defense attorneys could ask the court to pay for expert witness testimony in Daubert challenges.

It's a changing scene with regard to forensic science evidence, says Berger. "There is pressure from the scientific community" over the validity of some traditional forensic science. Fingerprints, handwriting analysis, ballistics, bullet lead analysis, eyewitness, serology, and psychological evidence, to name just a few, have all been challenged in court and elsewhere, and the "science," at least in some cases, has been found wanting.

Last fall, the Senate passed legislation authorizing funds for an independent Forensic Science Committee to be established at NAS. Its review will include the resources and needs of the forensic science community. "This Committee shall include members of the forensics community representing operational crime laboratories, medical examiners, and coroners; legal experts; and other scientists as determined appropriate," the legislation reads.

Meanwhile, such types of evidence continue to be proffered. For example, in December, U.S. District Court Judge Nancy Gertner in Boston, applying Daubert, allowed some testimony regarding ballistics evidence in a death penalty case, U.S. v. Darryl Green, et al. But she drew a clear line, refusing to allow a prosecution witness to testify that tool marks on shell casings can identify the casings as having been fired from a specific pistol. Investigators had linked the pistol to one of the defendants.

Gertner writes: "When liberty hangs in the balance—and, in the case of the defendants facing the death penalty, life itself—the standards should be higher than were met in this case, and than have been imposed across the country. The more courts admit this type of tool mark evidence without requiring documentation, proficiency testing, or evidence of reliability, the more sloppy practices will endure; we should require more."

In California recently, a Daubert decision to exclude forensic evidence appears to have helped seal the fate of a death row inmate at San Quentin State Prison, whose claims included evidence tampering. In Kevin Cooper v. Jill L. Brown (the prison warden), Cooper requested in U.S. District Court for the Southern District of California that his sentence be overturned. He had been convicted of the violent murders of two adults and two children and the attempted murder of a third child.

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Cooper asked the court to consider whether his blood was possibly planted by law enforcement personnel on a T-shirt found in the vicinity of the murders. The shirt also contained blood from some of the murder victims. Specifically, Cooper sought to demonstrate that his blood stain on the T-shirt carried high levels of the blood preservative EDTA. The argument was that high levels of the chemical meant it was at least possible that Cooper's blood on the shirt had come from a test tube rather than from Cooper's own body.

The court wrangled with both sides on just how to design and carry out a test that would meaningfully compare Cooper's blood on the shirt with EDTA-contaminated blood on control samples. At one point, there was an issue about which buffering solution to use in the tests, and Cooper's attorney told the judge that his expert "gave me a long discussion about it, and it was enough chemistry for me."

Finally, testing showed no elevated levels of EDTA in Cooper's blood on the T-shirt. But no matter the test results, the court ruled that such EDTA testing failed the Daubert test, citing a lack of peer review or published studies for EDTA testing. Cooper remains on death row.

Shoot-out
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A Massachussetts federal judge has ruled that some ballistics evidence in a death-penalty case does not pass scientific muster for presentation in her courtroom.
Feb 19, 2005; Toronto, CANADA; At the Centre of Forensic Sciences, a bullet is loaded on to a microscope for closer examination to compare scoring marks. Ontario police forces send firearms and other forensic evidence to the centre for study. But it can take police two yearsto get evidence back. 
Mandatory Credit: Photo by Hans Deryk/Toronto Star/ZUMA Press.
(©) Copyright 2005 by Hans Deryk/Toronto Star
Credit: NewsCom/Zuma Press
A Massachussetts federal judge has ruled that some ballistics evidence in a death-penalty case does not pass scientific muster for presentation in her courtroom.

Mara L. Merlino, a justice scholar at the Grant Sawyer Center for Justice Studies at the University of Nevada, Reno (UNR), says, "Research indicates that many of the state trial court judges we interviewed had minimal science education, most of which was obtained during their undergraduate education.

"Among law schools," she continues, "there is a growing trend toward interdisciplinary and multidisciplinary education. The [Grant Sawyer] center is currently conducting a research project about the extent of science and technology education available in U.S. law schools."

"Judges have to go back to school" to learn about science, says New York State Judge Joseph J. Maltese, who handles medical malpractice and product liability cases as well as general civil matters. He also teaches courses on scientific evidence to judges at the National Judicial College, Reno, Nev., and elsewhere. Currently, Maltese is hearing a mass-litigation product-liability case concerning the Purdue Pharma narcotic pain reliever OxyContin.

"Judges and attorneys need to actively seek out [science] training," Merlino says. Asked what would be ideal in terms of science education for judges, she says, "Minimally, I think judges need some grounding in research methodology and the nature of scientific inquiry, especially the idea of using a theoretical perspective to generate hypotheses, along with some background in statistics."

"I advocate for court-appointed scientific experts," says Judge Stephanie Domitrovich of the 6th Judicial District of Pennsylvania. She, too, teaches courses on scientific evidence to other judges. "I need someone who can teach me the science. A judge has to reach a certain intellectual level to judge scientific issues."

Domitrovich says science education is often close to home. "Every jurisdiction in Pennsylvania has a university nearby. I talk to people in chemistry, physics—they are often willing to come into court and explain what the science is all about."

There are national sources of information, too. The National Clearinghouse for Science, Technology & the Law (NCSTL) at Stetson University College of Law, Gulfport, Fla., works "to provide comprehensive scientific, technological, and legal information, which will promote justice based on sound science and technology," according to Director Carol Henderson. Along with conferences, training programs, and a reference collection on law, science, and technology, she says, NCSTL has also developed an extensive online resource pertaining to law, science, and technology.

AAAS runs a program for federal, state, and administrative law judges called Court Appointed Scientific Experts (CASE), which began in 2001. It is not used often because some research indicates that judges are reluctant to use third-party experts, and many cases don't call for one. But it appears to be the only service of its kind.

"When a judge calls, they describe what they need, and we find them three or four experts," says Project Manager Deborah Runkle. So far, Runkle has answered more than 25 requests to find third-party experts for judges, and she has provided experts for a third of those requests. In other cases, the case settled before an expert could be appointed.

Former CASE advisory committee member Judge Martin L.C. Feldman, a U.S. District Court judge for the Eastern District of Louisiana, has used a CASE expert. He explains that it was for a suit in New Orleans in which a new building for the FBI was contaminated with mold before it was ever occupied. He says CASE staff "gave me three names, and I chose one with the advice and consent of lawyers for both sides."

"It was a very careful process," Feldman continues. "The only issue the lawyers seemed to have was 'What do the jury instructions look like? Does it place too much emphasis on the expert's testimony?' "

Feldman says he told the jury that they did not have to believe the expert, and he also allowed both sides to cross-examine the expert if they wanted to do so. "It's not inconsistent with the adversarial process," he says. A judge does not have to seek permission of the lawyers to use a third-party expert, but "it's not wise to force lawyers into a model they won't accept."

"I am not a fan of CASE," says Peck. "First, there is an assumption that you can obtain neutral third-party experts and, second, that it will assist the judges and not dictate their ultimate decisions. And the cost is often imposed on the parties. You have to hire your own experts to bring a case, and then you have to pay for the judge's expert." What's more, he says, "with researchers and universities, and even the AAAS, more and more dependent on large corporations for funding of scientific research, there is a hidden bias in this type of program."

"The adversarial method is how we get to the truth in a particular case," Peck continues. "You put competing experts in front of the court. You don't exchange the judge's robes for lab coats."

"As a general rule, the system doesn't have time for third-party experts," says Black. "They're used in only a tiny fraction of cases and can't remedy the larger problems of institutional competence, an issue that relates to both judges and lawyers."

A group of judges in western states is learning among themselves how to handle the scientific issues of complex water litigation, such as groundwater contamination and water rights. They have formed an information-sharing group, "Dividing the Waters," to improve the management and outcome of cases, says a founder, California Administrative Law Judge John E. Thorson.

Group members are spread over a wide geographic area, Thorson says. "You can't just walk down the hall to consult with colleagues." Instead, he says, they have a major meeting every 18 months and, in between, distribute publications, hold smaller workshops, and have other off-the-record discussions and meetings.

"When we started, we thought it would be a time-limited group," says Thorson of the organization. Now, with some 150 members, he says the group is ongoing and reflects the growing importance of water issues in the West.

"Judges today talk to one another," says Maltese. He says judges have formed other informal groups, such as judges involved with mass tort litigation. He says they talk to each other about their cases and experiences and "we see what flies and what doesn't."

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