July 01, 2015 Introduction

Education in Forensic Sciences: Tools for Judges as Gatekeepers

By Judge Stephanie Domitrovich, PhD

Archimedes’ famous shout of “Eureka!” as he ran from his bathtub through the streets of Syracuse illustrates the cooperation between the worlds of law and science. King Hiero had commissioned Archimedes to prove the guilt of the goldsmith in diminishing the gold content in the king’s crown. By weighing gold content in the crown through displacing water in his bathtub, Archimedes discovered the first law of hydrostatics—and offered science-based evidence.

Historically, courts have viewed science as an indispensable ally in their truth-finding function. This dependence on science is even seen in the Talmud in the sixth century B.C. A husband desiring a divorce contrived to have his wife and other guests become inebriated at a party. He carried his wife and a male guest to a couch, where he threw egg albumen resembling semen between them. Neighbors were called to bear witness to the alleged adultery. In response, the wife provided a medical expert’s testimony to establish that the fluid was not seminal fluid, but merely egg whites. Science was enlisted to resolve the matter.

Our current Judicial Division chair, Judge David J. Waxse, created the Forensic Science Committee to educate judges and lawyers on scientific evidence. The 2009 National Academy of Sciences (NAS) report, Strengthening Forensic Science in the United States: A Path Forward, indicated that judges and lawyers do not have sufficient training and backgrounds in scientific methods “to fully comprehend the approaches employed by different forensic disciplines and the strengths and vulnerabilities of forensic science evidence offered during trials.” Recently the Forensic Science Committee held a symposium, “The Roles of the Courts in Improving Forensic Science,” at Northwestern University School of Law, which can be accessed online through the Judicial Division at www.americanbar.org/jd. Judge Waxse recently submitted a resolution to ABA House of Delegates to urge the National Commission on Forensic Science to develop model curricula in law and forensic science to train federal, state, territorial, and tribal court judges.

Judges qualify experts and decide Frye and Daubert motions in limine regarding reliability and relevance of experts’ scientific methodologies. Qualified experts then become educators for attorneys, and also for jurors, using scientific, technical, or specialized knowledge to help jurors understand evidence or determine facts. And experts serve only one client—the truth. Dr. Paul H. Broussard, chair of forensic science at the Sorbonne in 1897, described the proper role of experts in the adversarial process: “If the law has made you a witness, remain a man (or woman) of science; you have no victim to avenge or guilty or innocent person to ruin or save. You must bear testimony within the limits of science.” Experts are not “hired guns.” Although attorneys are advocates, experts should never be hired as advocates.

Consistent with Judge Waxse’s vision, this issue offers articles written by renowned experts to provide scientific knowledge to judges and lawyers. These authors offer expertise in forensic metrology, medical forensic sexual assault examinations, and forensic handwriting comparison examinations. Two articles provide opposing views on the admissibility of parental alienation evidence. Another, by Carol Henderson, former president of the American Academy of Forensic Sciences, and Diana Botluk, one of eight top online legal researchers, discuss available Web resources to “keep abreast of the scientific advances as well as the changes in the rules of evidence.” Marla Greenstein, JJ’s expert in ethics, raises concerns about judges’ independent legal research. Judicial ethics rules may require judges to disclose their extrajudicial reading material in time for counsel to offer oral or written comments. Lawyers may offer additional material relevant to the material disclosed by judges. Michael Saks and Ashley Votruba suggest how courts may better manage the poorly validated evidence offered by some forensic sciences by providing “limits on admitted expert testimony in an effort to prevent the most misleading testimony from reaching jurors.”

Justice and science co-exist in our courtrooms for the good of society. When deciding the admissibility of scientific evidence, judges in Frye jurisdictions consider whether the evidence is generally accepted within the relevant scientific communities, and in Daubert jurisdictions, judges also consider empirical testing of hypotheses regarding falsifiability, known or potential error rates, existence and maintenance of standards and controls, peer review and publications, and other factors. Judge Ronald A. Silkworth of Maryland encourages judges and lawyers to “make a serious commitment to understand the scientific issues that impact our courtrooms and—in the words of the late Ohio Supreme Court Chief Justice Thomas J. Moyer—‘to transform the tools of science into instruments for justice.’” The NAS report recommends that forensic science community experts educate judges and lawyers who use their services. The authors in this issue are fulfilling their roles as experts and educators by providing us with tools to ensure justice for all.