Judges are trained to be impartial arbiters of fact, relying on presentations in court for their education about facts to be proven. This issue is filled with articles presenting scientific principles that judges should know. When reviewing the many thoughtful articles presented for publication in this issue, however, the ethical issues became clear: At what point is science best presented in court through experts and not directly to judges through professional education?
The straightforward answer is: enough to serve the “gatekeeper” function. But how much is enough? And at what point is it too much extra-judicial information? As this issue illustrates, it is a moving line that depends on the complexity of the scientific theory or concept, the nature of the litigation, the general acceptance of the expert or theory, and the experience and background of the judge. And, as the Ted Vosk article suggests, merely enough science to perform the “gatekeeper” function may not be enough scientific information to make an informed assessment of the evidence as a fact finder.
To ethically review scientific information as background for future court hearings, judges should be vigilant in preserving their dual roles: gatekeeper for scientific evidence that is presented and independent finder of fact. The ethical dilemma is simpler where the scientific evidence is presented to a jury. In that instance, the judge is merely serving his or her gatekeeper role. When reviewing information or retrieving past articles read in serving as gatekeeper, the diligent judge will disclose extra-judicial resources that inform his or her determination of the reliability of the proposed evidence or other considerations. In the role as fact finder where scientific evidence has been presented, a judge should separate his or her assessment of its admissibility from the weight it is given when applied to the issue at hand. This is humanly difficult in the simplest of instances, but where new or controversial scientific principles are proposed, these challenges are immense.
Must a judge disclose in a sexual assault case information obtained by reading the Lynn Hecht Schafran article in this issue when determining the admissibility of medical staff assessments? Should a judge deciding a will contest disclose having read the Thomas Vastrick article when determining whether a handwriting expert can testify? Or are these merely educational resources that judges are encouraged to read and know as general and necessary background for the cases that they may or may not preside over in an uncertain future?
The dreaded answer is: it depends. It depends on whether the article was in the forefront of the judge’s thinking at the time of the issue to be decided. And it depends on the closeness of the decision at hand. It depends on whether the science to be determined is controversial or accepted. And it depends on whether the scientific basis for the evidence will be controverted at the hearing or is generally acceptable to the parties. Only you, the judge, will know whether the article or lecture had such a momentous impact that it has forced you to rethink the science presented to you in court. For you are not only the gatekeeper for scientific evidence in the courtroom, you are also ultimately the gatekeeper for your own impartiality.