Reprinted with permission from Judges Journal, Fall 2017 (56:4), at 11-15. © 2017 American Bar Association. All rights reserved. This information or any or portion thereof may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association.
Science in the Courtroom and Judges in Lab Coats
Most judges have limited, if any, grounding in science and technology. Indeed, when asked, most judges will admit their limitations in this regard, indicating, perhaps, that “I flunked science in kindergarten” or that “math was impenetrable, so in college I majored in history,” or some such.
We have found over a 20-year span, however, that judges often harbor a long-simmering fascination with science, technology, engineering, statistical comparisons, and health care techniques. In a supportive learning and teaching environment, judges are perfectly capable of learning scientific concepts quickly and of effectively applying the rules of valid research to the case-related evidence proffered before them.
In molecular forensics, for example, resource judges in the molecular and comparative forensic concentration had little difficulty separating and identifying trace elements in the laboratory. Once explained in plain, nontechnical terms, they were able to process fire accelerant samples with the most advanced technologies, in this case, gas chromatography and mass spectroscopy. Once introduced to laboratory equipment, they quickly adopted a research attitude. Neither were they put off by the statistical techniques for determining the uncertainty of their findings. Their laboratory notebooks filled quickly with principles that could be used to examine parties’ expert witness candidates in complex criminal and civil cases.
This article provides an overview of the efforts of the National Courts and Sciences Institute (NCSI), including best practices and lessons learned in the training of science and technology resource judges.
Many science-fraught cases are brought by diligent, enterprising counsel, growing numbers of them also trained in the sciences and conversant with technology. They are backstopped by an ever-expanding reliance on expert witnesses. For example, in arson cases, fire officials’ anecdotes and gross observations may substitute for hard evidence. Judicial evaluation of the testimony of such witnesses must address the soundness of the scientific methodologies and research underlying and supporting the opinions they offer.1 If courts as forensics evidence user systems were to insist on the standards to which NCSI’s resource judges are exposed, the forensics producer communities would soon be forced to abandon junk evidence.
A civil case example also fortifies the idea that judges can tap scientific standards to effectively keep the gates of valid evidence. In 2009, the same year that the National Research Council criticized the widespread misuse of case-related forensics evidence, a Maryland trial judge disqualified the plaintiff’s lead expert in a vaccine-causes-autism case.2 After 10 days of pretrial evidentiary hearings, the trial judge, an Advanced Science and Technology Adjudication Resource (ASTAR) fellow, determined that the foundation for the expert’s opinion lacked any validating scientific baseline and flew in the face of the overwhelming weight of both the body of reported research and consensus opinions of widely respected review panels. The witness was disqualified. Affirmed on appeal, the case raised respect for the court’s objectivity, even-handedness, and evidentiary fairness.
With respect to health care outcomes evidence, a New York appellate judge and ASTAR fellow found that the methodology employed by the plaintiff’s experts—correlating long-term, therapeutic acetaminophen use to the occurrence of liver cirrhosis primarily based on case studies—was fundamentally speculative.3 The opinion concluded that the analytical gap between the data and the experts’ proffered opinion was too great to sustain an inference of causation. It affirmed the trial court’s grant of the defendant’s motion to preclude the plaintiff’s expert testimony.
Tortoises and Hares
Courts move slowly when compared to warp-speed scientific discoveries. NCSI’s solution to the problems generated by this disparity is to prepare judges who can serve their jurisdictions as resources over longer time spans. The goal is to anticipate the complex cases of the future while presiding in present-day disputes, often with less complex evidence. This is a judicial version of the scientific edict “Discovery favors the prepared mind.” In today’s world, justice favors the adjudicator with access to knowledge tools keyed to the evidentiary gatekeeper’s practice guidelines.
A good example of emerging scientific and technical challenges is the recent announcement that scientists have successfully edited the genes of embryos with deadly mutations before they were implanted.4 The target mutations are inherited from one or both parents. They predispose children and young adults to early-onset heart disease and sudden death. Success of experimental embryonic gene surgery in laboratory media using molecular scissors would be startling enough. The courts may soon encounter disputes over removal of heart disease–causing genetic material and replacement with healthy gene parts for embryos capable of being brought to term. These technologies, however, result in parts replacements that stay with the patient and his or her descendants, generation after generation, a permanent change in the chain of heredity.5
NCSI’s resource judge training in genetic engineering cannot ignore the likelihood that some parents will soon insist on implanting such modified embryos. Nor can it evade consideration of the permanent changes and unknown side effects made to those patients’ inheritance. What resources would help a judge consider a motion for injunctive relief to permit such engineered embryos to be implanted in a nurturing womb and medically chaperoned over prenatal development to become babies?
First, that jurist would need the scientific and technical understanding to appreciate the parties’ technical as well as general arguments. Second, the jurist would benefit from hands-on experience with gene evaluation technologies to reinforce a sense of this nano-surgery’s details. The jurist would apply that knowledge to evaluate proffered experts’ ability to assist the fact-finding efforts in assessing what outcomes can be predicted for the baby brought to term; what statutes apply; does the court have jurisdiction over a case in which current law provides no guidance; and is society ready for genetically modified babies? NCSI includes legal, ethical, and societal perspectives in its training concentrations. This prospective case illustrates NCSI’s maxim: Better case management benefits from the prepared jurist.
NCSI orients resource judges not only to manage such novel evidence, but also, importantly, to assist colleagues with their assigned cases. When confronted with scientific tsunamis, our court systems need judicial officers to share knowledge tools among a large number of courthouses and over a period of years. Accordingly, we expect that judges electing specialized training in science and technology will commit to remaining on the bench for at least five years following that training and to advocate localized judicial science programs for wider court system benefit.
New York’s Experience in Increasing Judges’ Confidence in Novel Evidence Case Management
Among general jurisdiction trial courts, an unsettling new development crept into our courtrooms during the new millennium’s first decade, a reality that robustly asserts itself today. Trial judges experienced, with gathering momentum, the introduction of unproved and questionable forensic science into the courtroom. It seemed that, almost overnight, the courts were required to determine the admissibility of scientific theories and practices that we had been so careful to avoid earlier in life. At the same time, authoritative scientific centers took law enforcement to task for introducing forensic evidence lacking a scientific foundation. Similar absurdities confront the judicial branch in a host of topics, a few of which NCSI has selected to pave the way for the adjudication of current and future cases.
In March 2010, 35 judges from across New York State were chosen to participate in a two-year fellowship program to provide guidance in developing the skills necessary to face this new challenge—the ASTAR Fellowship.
The 120-hour curriculum began with a Science Boot Camp held at the John Marshall Law School in Chicago in September 2010. The intensive three-day program included introductions to such topics as “Genomics and Its Impact on Society,” “Scientific Perspectives on Psychopathy,” “Digital Forensics,” “Brain Imaging: Implications for Addiction Recovery,” “National Security Bio-Forensics,” “Managing Neuroscience Evidence,” and “Forensic Psychiatrist as Expert Witness.” Top educators and researchers in these fields made up the faculty. By the end of the three-day program, it was clear that this training was instrumental to the confidence necessary to manage some anticipated twenty-first century cases. In April 2013, with two more on-site educational programs, New York’s ASTAR judges were elected as ASTAR Science and Technology fellows. In order to qualify for the fellowship, participating judges were required to design judicial education projects to be offered locally to their colleagues. For at least one new fellow, the highlight of the experience was the adoption of his required digital evidence judicial educational plan by the FBI’s computer experts.6
Scientific Method, Tools, and Measures—Science “Boot Camp” for Judges
With near-universal reports of increased case management confidence from ASTAR’s 500 fellows, NCSI returned to the drawing board. We built upon that principle when the U.S. Department of Justice’s support ended in the wake of a federal budgetary sequester in 2013. Leaders distilled the training experiences of the previous 18 years. They culled a raft of evaluation summaries submitted to government sponsors. They ratified reports that a combination of hands-on, observational, and classroom training helped in understanding scientific concepts and research findings. They also found that participant group size has been a key success variable: The smaller and more intimate the group and setting, the more satisfying judges rated their science education experiences. NCSI’s leadership also concluded that judges could be prepared just as efficiently in 60-hour curricula—half the required time of earlier approaches—when anchored by understanding of scientific method, tools, and measures. And the sooner the general foundation can be followed by focused, more specialized workshops in subjects surfacing to challenge the justice system, the better.
Following a thoroughly debriefed, new, scientific method, tools, and measures workshop at and conducted in conjunction with the Los Alamos National Laboratory, NCSI intends to vest this core program in a new center at the University of North Carolina (UNC) at Chapel Hill.7 Annual and quarterly scientific method judicial conferences can draw on the numbers and vast, independent experiences of science advisors spread across the landscape of this public research university.
The first Boot Camp will be conducted in Chapel Hill on December 6–8, 2017, for no more than 30 judges. Center faculty will host another 30 judges March 21–23, 2018, in Washington, D.C.
The December 2017 program will include the first 12 judges registered in the Molecular and Comparative Forensics Concentration and the same number interested in the Genetic Engineering and Biotechnology Concentration. The March 2018 program will include the first 12 judges favoring the Developmental Neurobiology and Health Care Outcomes Research Concentrations. The remaining places at each program have been reserved for judges interested in Scientific Tools and Measures exclusively. Dr. James P. Evans is the Boot Camp program’s chief scientific officer. He is the Bryson Distinguished Professor of Medicine and Genetics at the UNC’s School of Medicine and a long-time science advisor with EINSHAC and ASTAR.
Resource Judge Training Concentrations
NCSI has identified the following areas of concentration for training.
Molecular and Comparative Forensics8
NCSI initiated this concentration in June 2017 as a laboratory-based training segment at the National Institute of Standards and Technology (NIST), U.S. Department of Commerce, in Boulder, Colorado. Its goal is to produce judges in every jurisdiction who have a firm grasp of scientifically based forensic evidence—as well as forensic tests that are not the product of accepted research. We partnered with NIST’s Division of Applied Chemicals and Materials for the concentration’s first phase, which paired 12 judges and 12 science advisors and laboratory mentors. Dr. Thomas J. Bruno, head of the Division’s fluid research laboratory, serves as NCSI’s chief scientific officer. The second phase will host 24 judges and judicial educators—many selected by their jurisdictions’ leadership. This second phase concentration audience will attend their Boot Camp in Washington, D.C., next March. The next forensics technical workshop is scheduled to be conducted at NIST Boulder on September 28–29, 2018.
Developmental Neurobiology, Brain Function Research, and Risk Measures
No demonstrative evidence will be more sought by parties, more controversial as to conclusions, more subject to expert witness interpretation, and more suspected by courts in the next five years than brain function tests and related testimony. This concentration’s goal is to prepare judges in every jurisdiction who are familiar with several converging pathways producing brain function assessment technologies and derived test reports. NCSI will highlight their scientific foundations, their current limitations, and their forecasts. NCSI initiated this concentration in November 2016 as a working conversation at the Saint Louis University School of Law. Forty-two judges and nine neuroscientists sought to define the content and contours of highly technical, fast-moving scientific and ethical issues tied to bias-based disputes commonly brought to courts. While controversy lingers over the validity of brain imaging techniques to support clinical mental state assessments, it has been possible to design a concentration curriculum that will serve court systems in both the long and short terms. This concentration’s Boot Camp is scheduled for March 21–23, 2018, in Washington, D.C. Its technical workshop is scheduled to take place October 17–19, 2018, at Boys Town Research Hospital in Omaha, Nebraska. Dr. James R. Blair, director of neurobehavioral research at Boys Town, is this concentration’s chief scientific officer.
Health Care Outcomes Research
Health outcomes research will become a major source of new litigation and novel cases over the next decade. Our educational focus is to help judges identify the accepted methods for scaling and crediting the weight of evidence, particularly in cases alleging health care standard of care violations and regulatory breaches. Participants will become familiar with all aspects of the large-sample, randomized, double-blind, clinical trial—the current “gold standard” in health care outcome research evidence. They also will grapple with cases of conflicting study results from a wide range of impact/outcome assessment methods, including contrary findings from oppositional meta-analyses. This concentration’s Boot Camp is scheduled for March 21–23, 2018, in Washington, D.C. Its technical workshop will be held October 3–5, 2018, at the Medical University of South Carolina (MUSC), Charleston. NCSI’s chief scientific officer is Dr. Daniel T. Lackland, professor of epidemiology and neuroscience, and director of MUSC’s clinical trial management graduate program.
Genetic Engineering and Biotechnology
With new biochemical tools capable of surgical intervention shaping the heredity of all life forms, including humans, this concentration anticipates that new and emerging biotechnological enterprises will convert myriad ethical controversies into freshly minted legal disputes. Our goal is to prepare judges for every jurisdiction who have a firm grasp of genetic engineering’s scientific underpinnings and technological parameters. Indeed, the shape of those disputes becomes clearer as the scientific community itself reports on ambivalence between scientific progress, ethical reservations, and possibly adverse social implications. This concentration’s Boot Camps are scheduled for December 6–8, 2017, in Chapel Hill, North Carolina, and March 21–23, 2018, in Washington, D.C. The first technical workshop will be conducted May 16–18, 2018, at the Carl Woese Institute for Genomic Biology at the University of Illinois, Champaign-Urbana. Dr. Gene Robinson is NCSI’s chief scientific officer. He directs the Carl Woese Institute.
Ecosystem and Climate Research
As the federal government reduces its environmental research and regulatory missions, courts are likely to encounter a prosecution and litigation increase pursuant to states’ criminal and civil statutes. NCSI has no view about case outcomes, but all cases, whatever their causes and stakes, will be characterized by complex evidence. We take no position with respect to climate change causation, for example, but will assure resource judges that they have a durable understanding of the scientific tools and measures currently adopted to assess environmental distress and shifts. This concentration emphasizes the accepted, questioned, and rejected research expected to underpin environmental cases, particularly those that will deal with environmental restoration controversies. Resource judges will be able to distinguish between valid and junk science and between qualified and bogus expert witnesses keyed to such cases. This concentration’s Boot Camp is scheduled for December 5–7, 2018, at UNC, and its technical workshop is scheduled at the Lawrence Berkeley National Laboratory, Berkeley, California (LBL), March 27–29, 2019. NCSI’s chief scientific officer is Dr. Gary L. Andersen, senior scientist and microbial ecologist in LBL’s Ecology Department.9 Dr. Andersen has been a highly lauded EINSHAC and ASTAR science advisor, vividly remembered for supervising microbial cultivation exercises in connection with our educational conference on bio-terrorism and the courts.
Resource Judges Don Slightly Expanded Robes and Roles
Beyond each NCSI concentration’s technical information, and treated all too briefly in this article, resource judges are expected to add three additional roles to their practices.
- Collegial Mentoring, including effective consultation techniques, identification of evidentiary issues in cases assigned to colleagues, and communication of the resource judge’s availability to assist.
- Judicial Science Education Planning, including practice, negotiation with jurisdictions’ education divisions, and program evaluation skills. NCSI concentration curricula include these matters.
- Rule-Making and Policy-Setting Contributions, including desk books to help rule making and policy setting in resource judges’ home jurisdictions and additional means of resource judge deployment.
Resource Judge Deployment; Case Management Policies Expand Parties’ Options
NCSI requests that participating jurisdictions make deployment plans for utilization of their science and technology resource judges. NCSI fully understands that only jurisdictions can determine their most appropriate deployment modalities. We thought, however, it might be useful to review Maryland’s and Missouri’s ASTAR deployment plans as examples.
Shortly after the turn of the century, the Maryland General Assembly expressed its interest in having business and technology cases adjudicated in a specialty court. It asked that the judiciary establish such a court dedicated to cases involving complex business and technology issues and staff it with judges trained in such issues. Following the report of a task force impaneled to consider the issue, the court of appeals established by rule a Business and Technology (B&T) case management track on its case management system and authorized its education arm, the Maryland Judicial Institute, to develop a curriculum for the education of the B&T judges to be assigned to each of Maryland’s 28 judicial circuits. That permitted the parties to apply to each circuit’s administrative judge to assign a case to the B&T track and thus have a specially trained trial judge manage the case.
The same template guided the establishment of Maryland’s ASTAR case management track. New developments in DNA forensic technologies and the new science piggybacked upon the Human Genome Project morphed into demands for specially trained judges in a host of cases. The court of appeals found that such innovation yielded new illumination and techniques for human, agricultural, environmental, and microbial engineering. These innovations demonstrated the need for a case management track for complex cases with novel scientific and technological issues and evidence on which the parties, including the executive branch, could seek to have their cases placed and thus have the benefit of specially trained judges managing them. The Maryland Judicial Institute collaborated with ASTAR in order to provide a 120-hour scientific curriculum leading to Maryland case management eligibility. Judges completing the curriculum also were certified as scientifically competent and elected as ASTAR fellows.
In Missouri, a different practice emerged. Bolstered by a large number of ASTAR fellows prepared in science, technology, and statistics by NCSI’s predecessor, the supreme court developed and continues to facilitate a procedure that permits the presiding judge or the supreme court to assign a fellow to preside over any complex case at the request of the assigned judge, or counsel for either party. NCSI’s president Hon. Zel M. Fischer, currently Missouri’s chief justice, strongly encourages other jurisdictions to develop a plan to deploy specially trained judges. He reports widespread satisfaction among the practicing bar who have utilized Missouri’s procedure.
Sustaining Science in the Third Branch
NCSI is committed to assisting jurisdictions to sustain science and technology’s contributions to court proceedings and case resolutions. To this end, we plan to hold periodic national conferences on approaches for initiating and promoting appropriate courts and science partnerships. These state-of-the-sciences conferences may well keep the judiciary updated and positioned to anticipate implications for court systems’ responses to new disputes, new evidence, new issues, and, perhaps, new adjudication approaches. The first such conference will be an overview of scientifically supported innovations in forensics. It is scheduled for mid-January 2019 at a locale to be selected.
In our experience, many judges would like a lighter dose of science than NCSI’s scientific methods seminars and specialized subject matter concentrations provide. To that end, NCSI can tailor subjects for judicial conferences ranging from short presentations to multiday workshops.
NCSI’s fellows, prepared to undertake science and technology resource judge roles, however, should expect more rigor, including testing for knowledge acquisition and case-related applications. To uphold its end of the accountability bargain, NCSI plans to provide continuous, updated educational support for each of its concentrations’ “graduates” for as long as each resource judge remains active.
1. Frye v. United States, 293 F. 1013 (D.C. Cir. 1923); Daubert v. Merrell Dow Pharms. Inc., 509 U.S. 579 (1993); Kumho Tire v. Carmichael, 526 U.S. 173 (1999).
2. Blackwell v. Wyeth, 408 Md. 575 (2009).
3. Ratner v. McNeil-PPC, Inc., 91 A.D.3d 63 (N.Y. App. Div. 2011).
4. For a concise summary of gene-editing technology, see Pam Belluck, In Breakthrough, Scientists Edit a Dangerous Mutation from Genes in Human Embryos, N.Y. Times, Science sec., Aug. 2, 2017.
5. A very good overview of this gene-editing technology can be found in Wikipedia, the online encyclopedia, under the reference term “CRISPR,” https://en.wikipedia.org/wiki/CRISPR.
6. Michael F. Pietruszka, A Digital Evidence Course for Judges (2012).
7. The December 2017 Scientific Method Seminar at the University of North Carolina has been rescheduled to April 25-27, 2018.
8. Nat’l Research Council, Strengthening Forensic Science in the United States: A Path Forward (National Academies Press 2009), available at https://www.ncjrs.gov/pdffiles1/nij/grants/228091.pdf.
9. Environmental research reaches across dozens of disciplines and hundreds of academic research settings. One research technique can be visualized in a short video about salt marsh restoration. Go to https://www.youtube.com/watch?v=54SOWWcXiQA.
NCSI’s history traces back more than two decades, in various forms, starting with a demonstrated need and efforts in the 1990s to meet that need. In some ways, our journey began with a Judges’ Journal theme issue in the summer of 1997: Genetics in the Courtroom, volume 36, number 3.
EINSHAC (Einstein Institute for Science, Health and the Courts), based in Washington, D.C., and solely supported by the U.S. Department of Energy, conducted three-day immersion seminars that provided scientific and technological background for several thousand judges in human, agricultural, and environmental genomics, including an emphasis on emerging DNA forensic technologies.
ASTAR (Advanced Science and Technology Adjudication Resource), based in Washington, D.C., and solely supported by the U.S. Department of Justice, offered background science for judges in a 120-hour curriculum, requested jurisdictions to adopt locally suitable plans to deploy them, and elected approximately 500 judges who completed the curriculum judges as fellows.
NCSI organized and charted programs to provide sustainable assistance with respect to the future of science and technology in adjudication of cases. Annual programs emphasize general state of the science surveys, highlighting scientific method, tools, and measures. Many specialized programs involve resource judge preparation in five defined subject areas forecasted to sharply increase case complexity.