Mimesis Law
26 September 2020

Fault Lines Debate: We Ask Too Much Of Judges

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 Scott’s argument:

There are two vastly different pieces to the puzzle of forensic science. There’s the part where it is used in court to prove a fact that the jury would be unable, without the expertise brought by the witness, to determine on its own, and then there’s the word that comes after forensic. That word is science, and that’s the problem word.

Expert testimony is exceptionally important to a jury. It accomplished two extremely important things: first it offers what appear to be scientifically conclusive determinations that decided the truth of disputed facts. Did the defendant do it? The hair found at the scene says he was there, and who on the jury could despite such a scientific conclusion?

The second thing it offers is absolution to a juror from making the hard, often painful, decision to find a person guilty.  It’s not the juror condemning a fellow human being, but the science. A juror might doubt herself, but one can’t doubt science. After all, it’s science.

Except when it’s not science. It may be called science, and have all the trapping of science, such as an association of practitioners, what’s called a “peer reviewed” journal, and practitioners with letters after their name who have testified before in other courts to the appreciation of a thankful prosecutor.

Despite this, there have been two major studies, one from the National Academy of Science in 2009 and another just released by PCAST, President’s Council of Advisers on Science and Technology, have challenged the efficacy of forensics. Failures, from the scientific accuracy of much of forensics to the means by which it’s determined to its level of certainty have been noted. And yet, judges in the role of gatekeeper, the person determining whether it’s sufficiently scientific to put before a jury, have historically failed miserably.

There are two tests for the admissibility of forensic evidence, the Frye test and the newer Daubert test. The former assumes that there is a scientific community performing the gatekeeping function of distinguish junk science from real, and defers to it. The Frye test gave rise to cottage industries of fakers, creating their own associations, their own journals which gave the appearance of scholarly review when only other fakers passed judgment on the “science” which provided them with their expert witness fees. It allowed for a sham industry of forensic practitioners to develop phony science with the veneer of official validity. And it has put countless people in prison based upon scientific nonsense.

Daubert, on the other hand, sought to overcome the failings of Frye’s cottage industry problem by asking the judge to determine whether it was inherently sound by scientific standards. While the test was more rigorous, judges aren’t scientific experts. Judges can’t stop a trial to determine if they can replicate results using scientific method. Judges lack the background, the knowledge, to exercise the level of judgment necessary to distinguish sound science from junk. And yet, they are constrained to make the decision of whether to put this expert forensics testimony before a jury.

We ask too much of judges, and the results prove it. As real scientists have tested many of the forensics that have been widely used at trial, they’ve failed to prove their accuracy. From hair to bite mark analysis, fingerprints to ballistics, not to mention the beloved puppies, hard science has conclusively demonstrated problems ranging from deeply flawed handling practices to outright lies. These aren’t science, but brilliantly established frauds that have grown into legally-accepted myths. Yet, they’re good enough to put a person in prison forever.

And then there’s the myth aspect, that once a judge accepts a type of forensic analysis as sufficient to be admitted at trial, the precedent is established and many other judges, other courts, will simply take it for granted that it must suffice or it wouldn’t have been admitted. Judges are disinclined to reinvent the wheel in every case, and so it takes only one lax judge to start the ball rolling for admission of junk science. Once that ball picks up some speed, it becomes unstoppable, and junk science morphs into legally accepted science.  After all, if 100 judges before her allowed testimony on duct tape analysis, who is the 101st judge to say no?

What is monumentally alarming in these reports is that this isn’t a problem with one or two areas of forensics, but essentially every aspect of forensic science. The gold standard, DNA analysis, is fraught with problems, from contamination to mixed analyses to wildly inflated certainty, which evade detection in the courtroom as they require a depth of scientific knowledge and appreciation that neither the judge nor jury possesses. So in it comes, and the fallout is what appears to be so conclusive, so certain, that no jury could be expected to do anything but convict. After all, the science says the defendant is guilty. Who can question it?

That’s the problem. Before it reaches that point, it’s the judges’ duty to question it, vet it, and reject it if it fails to meet the level of accuracy and acceptability to warrant reliance by a jury. Despite their good intentions and best efforts, science proves that they are not up to the job.

Rebuttal: Chris raises an excellent argument, that rather than place the onus on judges for failing to be sufficiently adept at science to flush out the phonies, we have an adversary system where lawyers should be challenging each other’s witnesses and let the judge apply only the legal test. The problem with this “solution” is two-fold.

First, it presumes that lawyers for both sides have similar abilities to access witnesses, whether financial or substantive. This has never been the case. The defense’s financial ability doesn’t compare to the prosecution’s. The defense can’t gain inside access to the prosecution’s methods.  And while the practitioner’s of phony forensics have built up an industry to establish their value, the defense can’t create an industry to counter a sham overnight.

Second, the existence of scientific validity shouldn’t be left to the side with the best “game.” The earth is round, even if the prosecution can proffer someone who appears to possess the right credentials to say otherwise. There has to be some foundation of reality upon which science is offered to a jury, and there has to be someone to say that junk science from faux practitioners isn’t good enough.

4 Comments on this post.

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  • CLS
    26 September 2016 at 12:11 pm - Reply


    I would respectfully disagree with your contention the existence of scientific validity shouldn’t be left to the side with the best “game.” While there is and should be an objective standard for scientific validity, at trial it all comes down to who can present their version of the truth in the most convincing fashion to a jury. It seems counterintuitive to think people shed the notion of absolute truth in a courtroom, but repeat performance shows juries aren’t exactly rational or logical.

    That means it’s left to the attorneys to persuade a judge whether Miss Cleo’s tarot readings are a scientifically viable method of determining who killed somebody. If the judge is persuaded, then the rules say it gets in. The horrendous truth we’re left with is that science has no scientific explanation in a courtroom. It’s a tool to help sell the case, but it won’t get any closer to the truth.

    • shg
      26 September 2016 at 12:37 pm - Reply

      Once it makes it past the gatekeeper, that’s fine. But Miss Cleo may have a Ph.D. and be a regular contributor to The Yale Journal of Tarot Cards, but she still shouldn’t be allowed to testify as an expert because science. And puppies.

      • CLS
        26 September 2016 at 1:16 pm - Reply

        “Because science.” To get to that point you have to establish what science is, and that concept is still fluid.

        Consider the concept of “science” as a “truth box.” In order to establish that science is an actual thing, you have to fill the box with various statements such as “There is a way to quantify, measure and examine the world around us,” and “This method can be repeatedly tested and subject to review when necessary.” Another good one is “Implementation of the proper method requires creating a hypothesis, testing that hypothesis, and modifying your hypothesis based on the findings of your tests.” In order to finally slam the lid shut on the “truth box” labeled “because science” you have to put an astounding number of statements that require you to assume their truth from the start!

        And how frequently do we see “science” turn around and say “whoops, we got it wrong?” Quite often, as it turns out. The first example that comes to mind is the resurgence of “fats” as being important to nutrition. Leaving the world of medicine behind, I’m still mystified there’s a debate over whether Pluto is actually a planet. The examples I used in my post were there for a reason. What is “good science” today can become “junk science” at the drop of a hat, or the publication of the next peer-reviewed study.

        Science is a tool. It’s a good one, but it has its limits, and shouldn’t be worshipped as infallible. Now puppies are a different story.

  • Eliot clingman
    28 September 2016 at 1:19 am - Reply

    CLS, that science allows theories to be disproved and superceded is its greatest strength, not a weakness. Conversely, the law’s over reliance on authority and precedent is its greatest weakness, and literally medieval. You are not the first lawyer to make this fallacy, unfortunately!