November 01, 2017 Introduction

Judges as Gatekeepers of Science and the Law: The Importance of Judicial Education

By Judge Stephanie Domitrovich

Justice and science coexist in our courtrooms for the good of society. Historically, courts have viewed the sciences “as an indispensable ally in a shared project of truth-finding.”1 In the 1993 landmark Daubert v. Merrell Dow Pharmaceuticals, Inc. decision, judges became the gatekeepers for admitting relevant and reliable scientific evidence in courtrooms across the United States.2 However, the 2009 National Academy of Sciences (NAS) report Strengthening Forensic Science in the United States: A Path Forward concluded that judges and lawyers do not have the sufficient training and experience in various scientific methodologies “to fully comprehend the approaches employed by different forensic disciplines and the strengths and vulnerabilities of forensic science evidence offered during trials.”

To perform their gatekeeping roles, judges must possess sufficient, scientifically sound knowledge and achieve proficiency in the fields of science and technology by collaborating with well-qualified experts in the scientific community. The NAS report recommends experts in the forensic science community educate the judges and lawyers who use their services. U.S. Supreme Court Justice Stephen Breyer noted, “In this age of science, we must build legal foundations that are sound in science as well as in law. Scientists have offered their help. We in the legal community should accept that offer.”3

Lawyers also must be educated in the field of science so they may prepare and present the appropriate motions for judges to admit or exclude science and technology. Judges and lawyers are expected to possess the necessary education and experience to comprehend the underlying science regarding reliable, cutting-edge scientific and technological issues. Judges must understand the underlying scientific and technological concepts to assess overarching legal liability issues. In the future, judges and lawyers will address various ethical concerns surrounding artificial intelligence, such as autonomous vehicles and the behavioral programming being uploaded into these futuristic vehicles on the assembly line. Autonomous vehicles are being programmed to make ethical choices of whether to hit a school bus presumably filled with students versus hitting a lone pedestrian student head-on. Life and death choices will be preprogrammed, and judges and juries must determine various issues surrounding autonomous vehicles, including who the drivers of these autonomous vehicles are, what the underlying liability and insurance issues are, and how and who will develop the laws and regulations for autonomous vehicles.

The Judicial Division of the American Bar Association (hereinafter Judicial Division/ABA) is leading the way in educating judges and lawyers in the fields of science and technology to improve the administration of justice. This Judges’ Journal judicial education edition features a wide variety of articles on judicial scientific education to benefit our readers as members of the Judicial Division/ABA. These articles are intended to make judges and lawyers more aware of the various curricula available across our nation that are being developed and implemented by and for various state and federal entities. These authors provide various federal and state experiences and resources for pertinent, up-to-date information about scientific evidence education and training available for judges and lawyers. Various education aspects are described to assist in educating and training judges and lawyers for informational purposes only—these articles are not intended to advertise for any specific scientific entity.

We hope our readers will find value in the education and training discussed by participating in similar programs being offered. We aim to inspire our readers to develop and collaborate in creating judicial education courses within their own federal and state jurisdictions to meet the needs of the public in the ever rapidly and evolving fields of science and technology. For instance, the Forensic Science Committee of the Judicial Division/ABA recently partnered with the Center for Statistics and Applications in Forensic Evidence at Iowa State University and their researchers, as well as researchers from Carnegie Mellon University; the University of California, Irvine; and the University of Virginia to develop a pilot national educational program to train judges and lawyers in statistics and probability. Experts and judges as panelists will discuss the ethical and legal responsibilities for participants to gain a better understanding of scientific evidence through best practices and lessons learned. Panelists will provide examples to interact with participants to assist in learning how statistical methodologies play vital roles in establishing reliability and relevance in various forensic scientific areas. Participants will examine scientific methodologies applying to a vast array of areas of the law from divorce to death penalty cases. Our first session is scheduled to be presented in Chicago at the ABA Annual Meeting in August 2018.

As professed by Maryland Judge Ronald A. Silkworth, judges and lawyers are encouraged 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.’”4 We have the awesome responsibility of preventing junk science from entering our courtrooms. Education of judges and lawyers is the key to ensuring justice for all, and our Judicial Division/ABA continues to be the prominent leader in promoting judicial and legal education to ensure gatekeepers admit only relevant and reliable scientific evidence in our courtrooms. 

Endnotes

1. Sheila Jasanoff, Science at the Bar 42 (Harvard Univ. Press 1995).

2. 509 U.S. 579 (1993).

3. Stephen Breyer, Science in the Courtroom, 16 Issues in Sci. & Tech., no. 4, Summer 2000, at 52, 56.

4. Ronald A. Silkworth, Tools of Science Become Instruments for Justice, Unified Family Court Connection (Univ. of Baltimore Sch. of Law), no. 15, Spring 2015, at 1, 2.