Educating Judges at the Intersection of Law and Science

Helping Judges Understand Science to Rule on the Admissibility of Forensic Evidence

It happens every day. While looking at your daily news source, you think, “sooner or later, I’ll be seeing that case.” You may be reading an article about the police locating a meth lab in an abandoned warehouse; a body recovered on the outskirts of town; a wrecked car with a cell phone inside. You know from your judicial experience that law enforcement will begin an investigation and, with the help of toxicologists, forensic pathologists, chemists, and others from an ever-increasing array of specialties, will likely develop probable cause to believe that criminal activity has occurred. Months later, after arrest and indictment, the task will fall on you to make sure that the jury considers reliable evidence that will enable them to adjudicate the case fairly so that justice is done.

And so begins NJC’s online course “When Science Comes to Court,” available on demand through the Web-Based Resource Center.

“What do judges really need to know about science?” When you ask yourself this question, the first thing that probably pops into your mind is forensic evidence, the kinds of evidence that will come into your courtroom as described in the example above—hair samples, fiber, dental records, cell phone records.

The decision about whether forensic evidence is admitted rests squarely on the shoulders of the judge presiding over the case. Judges must be intimately familiar with the rules of evidence and whether evidence is admitted or received for a limited purpose (including how to instruct in a jury trial).

NJC has several courses designed to give judges greater confidence ruling on issues of admitting evidence. Judges play a significant role at the intersection of law and science, and they must be able to identify substantive scientific issues that arise in a variety of forensic disciplines and relate those substantive scientific issues to the criteria for admissibility set forth by tests such as those set forth in Daubert v. Merrell Dow Pharmaceuticals, Inc.¹ and Frye v. United States.²

Helping Judges Understand if Witnesses Qualify as Experts

Under most state evidence law, an expert is someone who is qualified by knowledge, skill, experience, training, or education. Expertise, therefore, is not formally limited. It is, stated simply, a judgment call. However, not all proffered experts will qualify as experts. It is important for judges to understand the distinct roles for judge and jury in assessing proffered expert evidence, with the former responsible for determining admissibility and the latter for assessing weight.

An expert’s qualifications cannot be evaluated in a vacuum. The question for decision is whether the expert is qualified to testify on the subject on which he or she proposes to testify. Stated differently, the expert must be qualified to testify on the “task at hand.”

The concept of the “task at hand” is very important, especially in the forensic sciences. For instance, it might be that every fingerprint is unique, but even if true, this does not speak to the task at hand in most criminal cases. In virtually all criminal cases in which fingerprint evidence is introduced, the examiner is tasked with comparing a latent print found at the scene of the crime to a known print provided by the defendant. Latent prints are inevitably partial, are often smudged and distended, and might have ambiguous marks of uncertain value for identification or exclusion. The “task at hand” for fingerprint examiners is the ability to correctly identify the source of a latent print with limited information, not to identify the source of a relatively pristine rolled print with an abundance of information.

In addition to qualifications and relevance (or “fit”), rules of admissibility consider the substantive soundness of the testimony that is being offered by the respective expert. The two basic tests used by courts are those associated with Frye, a 1923 decision of the U.S. Court of Appeals for the District of Columbia, and Daubert, a 1993 decision of the U.S. Supreme Court, and codified in a 2000 amendment to Federal Rule of Evidence 702. The Frye rule asks whether the proffered expert opinion is generally accepted in the relevant scientific community, and Daubert-oriented rules ask whether the expert opinion is based on reliable and valid methods and principles.

There is an important common issue that arises in these two approaches to admissibility. Under Frye-oriented rules, judges are expected to determine whether the basis for the expert opinion is generally accepted in the pertinent field. And under Daubert-oriented approaches, the judge is expected to determine whether the expert opinion is based on sound methods and principles, presumably as defined by the applicable field.

Scientific Knowledge Changes; Helping Judges Stay Current

Another challenging situation arising in the context of admissible evidence and expert testimony is when the knowledge base changes over time. There is a basic disconnect between the institutions of law and science. At its foundation, the law seeks to provide certainty and predictability and, very often and particularly in criminal cases, a fair measure of finality. Science, while it rarely changes radically in short periods of time, is based on the idea of progress. No idea in science is ever thought to be absolutely final. How do we reconcile the law’s quest for certainty and finality with the realities of scientific progress?

On September 20, 2016, the President’s Council of Advisors on Science and Technology (PCAST) released a report that calls into question the scientific underpinnings of most of the forensic disciplines used in the investigation and prosecution of crime. The report, Forensic Science in Criminal Courts: Ensuring Scientific Validity of Feature-Comparison Methods, comes in response to a 2015 query from President Obama as to whether there are additional science-based steps that could help ensure the validity of forensic evidence used in the U.S. legal system.

On the panel of legal experts who provided guidance on factual matters relating to the interaction between science and the law were NJC faculty members Professor David Faigman (U.C. Hastings College of Law) and Judge Andre Davis (U.S. Court of Appeals, Fourth Circuit).

The study that led to the report involved independent reviews of cases using numerous types of comparison methods—hair analysis, bullet comparison, bitemark comparisons, tire and shoe tread analysis, and the like. Case reviews revealed that many successful prosecutions relied in part on expert testimony from forensic scientists who had told juries that similar features in a pair of samples taken from a suspect and from a crime scene implicated defendants in a crime with a high degree of certainty. In other words, the reviews found that expert witnesses overstated the probative value of their evidence, going far beyond what the relevant science could justify.

According to the report, the emergence of DNA analysis in the 1990s led to serious questioning of the validity of many of the traditional forensic disciplines. The questions that DNA analysis had raised about the scientific validity of traditional forensic disciplines and testimony based on them led, naturally, to increased efforts to test empirically the reliability of the methods that feature-comparison disciplines employed. PCAST identified two gaps: (1) the need for clarity about the scientific standards for the validity and reliability of forensic methods and (2) the need to evaluate specific forensic methods to determine whether they have been scientifically established to be valid and reliable. The study aimed to help close these gaps for a number of forensic feature-comparison methods—specifically, methods for comparing DNA samples, bitemarks, latent fingerprints, firearm marks, footwear, and hair. The 174-page report includes recommendations to the judiciary.

It is important for judges to receive ongoing judicial education in these important areas.

Helping Judges Understand the Cognitive Heuristics of Their Decision-Making Process

A lot of research has been published in the past 15 years about how the brain processes information during decision making and problem solving. Because “decision making” is one of the most important job skills of a judge, it is important that judges begin to understand intuitive shortcuts and emotions that might influence the way they come to judgment. Heuristics are simple, efficient rules or cognitive shortcuts that have been proposed to explain how people make decisions, especially when facing complex problems or incomplete information. They include:

• Priming/anchoring: prior exposure to a number, a word, an idea, or an event can influence subsequent ideas, decisions, and behavior;
• Framing: how a choice is phrased can dramatically change a decision, even if the logical effect is the same;
• Primacy: there is research to show that jurors often come to favor a particular verdict early in the process;
• Belief persistence: final verdicts are most often the same as the tentative ones jurors first form;
• Confirmation bias: two people with conflicting views can examine the same evidence and both find reasons for increasing the strength of their existing opinions; people interpret evidence in ways partial to a preexisting belief, expectation, or hypothesis.

Helping Judges Understand Science to Avoid Implicit Bias

Most judges have now heard of the Harvard Implicit Association Test, thanks to a near-universal belief that the research on implicit bias is relevant to the judiciary. An implicit bias is a positive or negative attitude toward a person or group that is held at an unconscious level. They inform expectations, based on information from life experiences. We make favorable or unfavorable associations based on characteristics such as skin color, gender, age, weight, and so forth. The research has convincingly shown that implicit biases exist and have real-world implications. Because fairness and unbiased decisions are fundamental to the justice system, it is vital that judges stay current on the research, especially regarding guidance and strategies to reduce implicit bias in the courts.

Helping Judges Understand Science to Make Evidence-Based Decisions

In criminal justice, there has been increasing emphasis on evidence-based practices. Evidence-based practice refers to approaches and interventions that have been scientifically tested in controlled studies and proven effective. In a criminal case, a sentence is considered effective when it reduces offender risk and subsequent recidivism. What treatment works for someone addicted to opioids? When sentencing a sex offender, what are terms and conditions of probation that are proven to be effective? Understanding the latest research can help a judge craft an effective sentence.

Helping Judges Understand Science to Take Care of Themselves

To be the best judge you can be, you need to take care of yourself. There is a lot of research about the effects of vicarious trauma on judges. There is also a lot of good news grounded in scientific research about the benefits of exercise and how to reduce stress. Many of NJC’s courses include a “wellness” component, but none more so than our new course, “Mindfulness for Judges.” This four-day course explores the most current research on mindfulness, including the neuroscience underlying mindfulness and the effects of mindfulness on work-related skills and behaviors. Specifically, participants will learn how mindfulness can help cope with trauma and enhance leadership and communication.

The National Judicial College Needs Science to Teach Judges About Science!

NJC takes very seriously the science of educating adults. Our goal is to make learning fun while improving retention. When we find someone with subject matter expertise and faculty potential, we put them through our four-day Faculty Development Workshop and share with them the science about how people learn. We develop all of our programming with the learner in mind. Every module we offer has a learning objective, and we measure our success based on whether we achieved the learning objective. We give frequent breaks, and we continuously engage our audience with learning activities so they can bring their wealth of experience to bear on the topic. We allow frequent opportunities for practical application. We often bring in experts from professionals in other disciplines (including scientists!), but we work closely with them to make sure the information will be relevant to our judicial audience.

Being a judge is more complicated than it has ever been. Science is a field that continues to evolve, and the areas of intersection between science and the law will just continue to grow. We encourage you to further your education, and we hope NJC can be part of your professional development plan.

Endnotes

1. 509 U.S. 579 (1993).

2. 54 App. D.C. 46, 47, 293 F. 1013, 1014 (1923).

Recommended Resources

You can register for all courses by visiting www.judges.org.

• Online Course: “When Science Comes to Court.” This is the first comprehensive self-study course for judges on the topic of forensic evidence. Offered at no cost to judges thanks to funding from the Laura and John Arnold Foundation. Available 24/7 through NJC’s Web-Based Resource Center, once you have registered at www.judges.org.
• Publication: Water Science in the Courtroom. This publication designed for adjudicators hearing water law cases contains a set of recommendations on judicial management of water case science, use of scientific tools, and application of scientific uncertainty in judgments.
• In-Person Course: “Scientific Testimony and Expert Evidence.” This four-day course is offered most years. In 2018, it will take place at NJC in Reno, Nevada, August 20–23.
• In-Person Course: “Decision Making.” This four-day course familiarizes judges with many of the factors that affect the decision-making process and assists you in analyzing your own thinking and style. Offered annually. Next offering: August 6–9, 2018, in San Diego, California.
• Online Course: “Advanced Concepts in Criminal Justice: Implicit Bias.” This 75-minute webcast will investigate how implicit bias can be addressed in the courts to reduce its impact on judicial decision making. Available at no charge thanks to funding from the Bureau of Justice Assistance, U.S. Department of Justice. Available 24/7 through NJC’s Web-Based Resource Center, once you have registered at www.judges.org.
• Online Course: “A Comprehensive Approach to the Management of Adult, Male Sex Offenders.” This 4–6-hour self-study course is available at no charge, thanks to funding from the Office of Sex Offender Sentencing, Monitoring, Apprehending, Registering and Tracking, Office of Justice Programs, U.S. Department of Justice. Available 24/7 through NJC’s Web-Based Resource Center, once you have registered at www.judges.org.
• In-Person Course: “Mindfulness for Judges.” Our 2017 course is sold out, so enroll early if you are interested in taking the class in 2018. It is a four-day class, October 29–November 1 in Santa Fe, New Mexico.