Mimesis Law
20 May 2019

Fault Lines Debate: Judges Do A Great Job For Science; The Law Ensures It

September 26, 2016 (Fault Lines) — Ed. Note: Following the release of the White House report on forensic science, and Attorney General Loretta Lynch’s contention that there is no junk science in the courtroom, the question unanswered was whether judges were adequately fulfilling their “gatekeeper” function when admitting expert scientific testimony. We charged Fault Lines contributors Chris Seaton and Scott Greenfield to debate the issue: Are judges doing their job as gatekeepers properly? Here is Chris’ argument:

Civil and criminal trials involve the production and admissibility of evidence. When a party wants evidence, especially that involving a “forensic science expert” admitted, the task of determining its value falls on the judge. Despite what the latest outrage mobs would have you believe, our judges are quite good at fulfilling their duties as “gatekeepers” of forensic science. The only parties questioning their work are the ones who don’t grasp the rules of evidence and the workings of the legal system.

Judges serve as “gatekeepers” by applying a legal test to determine whether a piece of forensic science is admissible as evidence. One method, the “Frye Standard,” says admissibility hinges on whether the scientific technique in question is “generally accepted as reliable in the relevant scientific community.”

The more current test is the “Daubert Standard,” relying on the judge to determine whether the science in question truly comes from “scientific knowledge.” To get there, a judge must determine numerous issues, including whether the evidence came as a result of scientific method, if the technique used is relevant and reliable, and the general acceptance of that method of forensic science among the relevant scientific community. Either way, the final say lies with the judge as to what forensic science is admissible. While the science world might piss and moan about bite mark analysis being “junk” science, it still must satisfy the court in making those determinations.

The recent report from the President’s Council of Advisers on Science and Technology, which spends 161 pages explaining forensic science  is, as Fault Lines Managing Editor Scott Greenfield summarized, “all still bullshit.” Yet it manages to respect the distinction between the scientific world and the halls of justice. While the best and brightest we’ve got to offer in science  tell you in one breath shoe print analysis and microscopic hair analysis is voodoo of the highest caliber, they’re quick to point out it’s not their place to question the criminal justice system.

Judges’ decisions about the admissibility of scientific evidence rest solely on legal standards; they are exclusively the province of the courts and PCAST does not opine on them.

PCAST is smart to refrain from opining on the legal standards regarding the admissibility of scientific evidence. That’s because science is a changing field, and what is considered “scientific” today may be “junk” tomorrow. Slightly over two hundred years ago, “bloodletting” was a common medical procedure to cure illness. Doctors used to lock women in asylums for “female hysteria.” If you told Karl Storz in 1945 his endoscopes would be replaced with large pills containing cameras that recorded a journey through the human body, you might end up in a nuthouse of your own. The beauty of science is that each avenue of study is open to constant testing and scrutiny. Rigorous peer review is considered a benefit, and new advancements come at a lightning pace compared to the legal world.

Law doesn’t develop as quickly, and the methodology jurists use as “gatekeepers” of forensic science reflects this. Change in the criminal justice system usually requires someone suffer a harm, unless the change is significant enough for the Department of Justice to wave a wand and issue “advisory guidelines.” That means it’s up to each and every judge determining the admissibility of forensic evidence do what they do every day: interpret and apply the law through the appropriate standard. Yes, this means bite mark, shoe print, and erroneous DNA analysis will sometimes pass the gate. It also means our judges don’t spend their off hours attempting to become black-robed versions of Sheldon Cooper. If forensic science meets the requisite Frye or Daubert test according to the person wearing the black robe, the system has worked as intended.

This is not, as some would suggest, a “deep contempt for science.” It’s also not a shocking revelation that prosecutors ignoring the recommendations of PCAST’s report are “the anti-vaxxers, the phrenologists, the earth-is-flat evangelists of the criminal justice world.” It is a division in two worlds that sometimes clash, and a mutual agreement to disagree.  The approach is one of humility, saying “maybe we’re better off keeping our mouths shut about how you do your job.” It also leaves room for one more party to do their job, and that’s the party advocating why one brand of forensic science is great and the others are the newest brand of voodoo. That would be the attorney either endorsing or questioning the validity of forensic science as admissible evidence in front of the judge.

If one wishes to argue the effectiveness of a judge as a gatekeeper for forensic science, the argument must end with an examination of the attorney. Since the role of the judge is to remain fair and impartial to all parties, and outside judicial inquiry can be frowned upon, the burden lies with prosecutors and defense attorneys to present the most compelling reasons why their forensic expert’s work is better than the other side’s expert. All the judge has to do is weigh the arguments and make the decision. If anyone’s role is to be questioned, it’s the role of the attorney. The judges will open and close the gates for science as best they can.

REBUTTAL: The difficulty in challenging Scott’s arguments is that we both fundamentally agree on the same principle. In leaving a judge as the “gatekeeper” for admissibility of forensic science, we ask of them too much. In addition to being well versed in the law, we expect them to be trained scientists, up to date on the latest peer-reviewed studies legitimizing or demonizing a particular field.

That’s why the Frye and Daubert standards hold up. They give a judge the best method available to determine whether forensic science is admissible under the law. Attacking forensic science is left to the lawyer. Most importantly, science is left to the scientist, and law remains the domain of law. It isn’t perfect, but it’s the best we can manage without demanding too much of our judges.

8 Comments on this post.

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  • Mark Bennett
    26 September 2016 at 10:10 am - Reply

    Judicial gatekeeping is overrated. I have more confidence in jurors ability to weigh the merits of expert testimony than in judges as gatekeepers. Just sayin That’s why I seldom, if ever hold Daubert hearings, unless they would be case dispositive. I defer till trial and 90 % of the time there is no objection to the testimony because the Daubert motion was nonsense to begin with.

    • shg
      26 September 2016 at 10:43 am - Reply

      Are the Daubert motions nonsense, or is there no reasonable expectation that any judge is going to refuse to admit evidence that has been admitted a thousand times before, even though it’s scientifically dubious? Think of the puppies.

      • CLS
        26 September 2016 at 11:59 am - Reply

        Puppies? Seriously? If the New York Times’ op-ed board has no concerns for puppies, then I respectfully argue judges need no concern for them either.

        • shg
          26 September 2016 at 12:35 pm - Reply

          Leave Roxane Gay alone!!!

          • Greg Prickett
            27 September 2016 at 2:49 am -

            Puppy Lives Matter!

    • CLS
      26 September 2016 at 11:57 am - Reply

      Judge, given that you’re one of the smartest guys around here, that statement says quite a lot. I would also add that it seems more your job to interpret and apply the law on the books instead of poking into science, though I wouldn’t put it past you to be the sort with about eight different scholarly journals by his bedside.

      I will ask you this: hypothetically, what would you consider a “case-dispositive” Daubert hearing?

      • Mark W. Bennett
        26 September 2016 at 7:40 pm - Reply

        “One of the smartest guys around” is surely a clear case of mistaken identity. I do love poking into the science, the more obscure, the better. But I love the 7th Amendment more and believe that juries, at least in Iowa, are fully capable of ferreting out the truth of the science assuming the lawyers are modestly good at what Wigmore observed to be “the greatest engine for truth ever devised.”

        A case dispositive Daubert motion is as rare as an Eskimo with a surf board, one written by a team of lawyers paid by the hour that actually has merit, very stromg merit, that if granted, ends the case. All others are a waste of time to rule on, I take them under advisement without argument and rule on them at trial. While I have never granted one for the reasons urged in the motion I have limited the opinions that may be offered when the expert lacks foundation for various opinions or goes beyond the expert disclosure. Because most cases are going to settle anyway and I never need to hold my mini-Daubert hearing before the jury, I might add, the hole subject is moot. I get asked to speak several times a year on Daubert Motions and always decline because I can count on one hand the number of times I have actually had a traditional Daubert hearing. They are one of the silliest litigation tactics in the law and have the opposite consequences like most civil procedure practices of actually increasing cost and delay.

        • Mark W. Bennett
          26 September 2016 at 7:41 pm - Reply

          I meant whole not hole but actually Daubert motions are a black hole.