Science Education for Federal Judges

It is unfortunate that many judges are wary of scientific evidence. Judges are, in fact, well prepared by their experience and aptitude to deal with complex issues of science. As Thomas Huxley noted, “Science is simply common sense at its best; that is, rigidly accurate in observation and merciless to a fallacy in logic.” Look closely at this definition and you will see that judges excel in dealing with these characteristics of science. Judges insist that evidence submitted as testimony be “rigidly accurate in observation.” Judges are even more attuned to errors in reasoning and are often “merciless to a fallacy in logic.” These two essential characteristics of scientific knowledge concern matters that judges confront on a daily basis.

Of course, scientists may employ unfamiliar terms and follow certain professional conventions that are not well known to judges. But judges are quick studies owing to the great variety of issues they must consider. This aptitude, along with a well-focused science education program, should provide a sufficient foundation for judges to respond in an informed and thoughtful way to the demanding scientific issues they must consider.

The Distinctive Nature of Judicial Education Regarding Scientific Issues

Those unfamiliar with the nature of judging may assume that science education for judges should be like science education for scientists and that judges should take graduate-level university courses to better understand the science topics that come before them. That may work in some instances, but formal coursework is time-consuming and fails to focus on specific issues that are of greatest concern to judges. Much of the scientific education that graduate students receive is not required for a judge to resolve conflicts over scientific evidence. Unlike scientists, judges do not necessarily need to pull together theoretical concepts from a diverse technical literature, interpret these concepts in terms of specific factors that can be measured and manipulated, develop an analytical structure that may involve complicated mathematical measurements and statistical inference, and reach a conclusion that is framed within the customs and practices of the individual areas of science.

Instead, a judge must know enough about the nature of the scientific evidence to resolve the legal issue in a thoughtful and principled manner. In considering admissibility of scientific evidence, a judge must consider whether the scientific testimony is sufficiently grounded in proper scientific methodology and reasoning. In addressing a summary judgment motion, a judge must determine whether the admissible scientific evidence raises a material dispute. Even when sitting as trier of fact in a bench trial, the judge has a sometimes difficult but much more limited task than that faced by a scientist. The role of the judge in considering scientific evidence is much like the role of the editor of a scientific journal—reviewing conclusions drawn from a completed study and considering whether the work meets a suitable standard of acceptability. While this is certainly a challenging task, it allows for more focused education regarding the science issues that judges are likely to confront.

Furthermore, the judge does not undertake this task alone. Attorneys representing the parties should provide the most important and specific science education regarding the issues in dispute through their written briefs and oral arguments. The judge requires a sufficient understanding of the underlying scientific concepts to make an informed assessment of the arguments presented by each side and to interpret those arguments in the context of the rules of evidence. This is well within the reach of judges and calls for a different form of science education.

The most important quality of science education for judges is that it must be easily accessible on short notice. Rarely is there such advance notice of the scientific issues in a case that a judge would be able to undertake an extensive educational program or enroll in a college course. Challenging issues involving scientific knowledge may arise quickly and require prompt resolution for the litigation to proceed without delay.

Science education for judges also must be available across a wide range of scientific topics. The typical federal district court judge will have more than 600 civil and criminal cases pending at any one time. These cases may raise issues involving medicine, statistics, engineering, genetics, or economics. A judge cannot afford to focus on any one of these scientific areas and neglect the rest. As cases settle, a different mix of science questions may require immediate attention.

Reference Manual on Scientific Evidence

The primary science education resource available to federal judges, as well as to other members of the bench and the bar, is the Reference Manual on Scientific Evidence, Third Edition. The Reference Manual is a joint product of the Federal Judicial Center and the National Academies’ Committee on Science, Technology, and Law. The first edition, published by the Federal Judicial Center in 1994, was a response to judges’ need for science education following the U.S. Supreme Court’s decision in Daubert v. Merrell Dow Pharmaceuticals, Inc.¹ That decision changed the standards for admissible scientific evidence and required federal judges to be more central in assessing the rigor of proffered scientific evidence. After Daubert, scientific evidence not only must be relevant to be admissible, but it also must be reliable and “ground[ed] in the methods and procedures of science.” In order to make this assessment, many judges needed additional information on the methods and procedures of science. The Reference Manual provides such information.

The Reference Manual is a source of practical assistance for judges facing difficult issues involving scientific evidence. It has the modest goal of providing judges sufficient information about the scientific foundation of the evidence, enabling them to participate in an informed conversation with the attorneys and experts about the strengths and weaknesses of the scientific evidence presented in the case. It also provides a framework of issues that attorneys sometimes use to present such issues to the court.

There is one important limitation on the information provided by the Reference Manual—it does not instruct judges as to the admissibility or inadmissibility of particular types of scientific evidence. Decisions regarding admissibility are matters that require the exercise of judicial authority and are not an appropriate topic for the Reference Manual. It seeks only to provide the tools and information that will assist judges in reaching this admissibility decision after thorough discussion with the attorneys and independent deliberation regarding the scientific evidence issues in the case.

The Reference Manual includes an introductory essay by Justice Stephen Breyer on the need for judges to understand science in general and to make well-informed decisions about the integrity of scientific testimony offered in litigation. Other introductory chapters include a review of the Daubert decision and other cases that establish the standards for admissibility of scientific evidence and a chapter that provides an overview of the customs and practices of the scientific culture. The heart of the Reference Manual is a series of 13 guides that serve as primers for specific areas of science that judges often confront. Those 13 areas are

• Statistics
• Multiple Regression
• Survey Research
• Economic Loss
• Epidemiology
• Exposure Assessment
• Toxicology
• Medical Testimony
• Neuroscience
• Mental Health Assessment
• DNA Identification
• Forensic Identification
• Engineering

These reference guides are typically prepared by a team of a scientist and a law professor, each with experience in dealing with the particular type of scientific evidence covered. Each of these reference guides includes a brief discussion of the practices and methodologies common to the particular scientific discipline, common problems that arise in understanding the research findings and conclusions, and warnings about errors of inference that nonscientists might be prone to make. Some of the reference guides include topic headings in the form of questions that the judge may wish to explore with the attorneys and experts. Each guide includes a glossary of terms to allow judges to translate some of the jargon that scientists may offer when testifying. Prior to publication, the reference guides undergo an extensive peer review by attorneys and scientists to ensure that they present a balanced account of the scientific and legal issues.

The Reference Manual has become one of the most widely cited sources of authority on matters involving the foundation of scientific evidence. The Reference Manual is made available to private publishers and can be downloaded by the public at no cost at the National Academies Press website (https://www.nap.edu/catalog/13163/reference-manual-on-scientific-evidence-third-edition).

Judicial Education Programs

Soon after the publication of the Reference Manual, the Federal Judicial Center sponsored a nationwide series of in-person science education programs to heighten judges’ awareness of the new standards of evidentiary admissibility and of resources available to assist in the consideration of scientific evidence. These programs typically involved scientists, judges, and law professors as faculty, and featured breakout sessions that considered issues in hypothetical cases to illustrate the application of the new evidentiary standards to complicated issues of admissibility of scientific evidence and testimony.

The Center continues to provide education for judges about various science topics, including neuroscience, genetics, statistics, mental health, computer science, economics, social cognition, neurobiology, and environmental sciences. These and other subjects are addressed in stand-alone seminars or as sessions in multisubject continuing education workshops. Other Center judicial education programs have embedded information on scientific evidence within instruction on legal issues that arise in particular types of cases. For example, a program on employment discrimination litigation may include a discussion of the types of statistical analyses that are common in larger employment discrimination cases. A program on patent litigation may cover economic theories that underlie the computation of damages arising from patent infringement. By incorporating science education within the educational programs for specific areas of litigation, judges are able to see how their decisions regarding admissibility of scientific evidence interact with the more traditional legal issues in a case.

The Center also maintains an extensive library of video and audio programs, which includes science education topics among the more traditional judicial education topics. These recordings are made available to all federal judges and judicial officials. Many in-person judicial education programs are recorded, and many are available to judicial officials on demand over the Federal Judicial Center’s intranet, which is restricted to the federal judicial system. Recent online programs have addressed neuroscience, forensic DNA, and computer forensics.

The Emerging Challenge of Forensic Science Judicial Education

Most recently, the Center has begun preparation of a series of forensic science education programs focusing on the nature of scientific testimony offered in criminal cases. A 2009 report by the National Academies, Strengthening Forensic Science in the United States: A Path Forward, revealed notable problems with the scientific foundation in a wide range of forensic science evidence that is often introduced in criminal cases. Of particular concern was forensic science evidence that is offered to link evidence found at a crime scene with a particular suspect or source, sometimes referred to as “individualization” or “matching.” Such forensic evidence includes fingerprints, bite marks, footprints, tool marks, and similar evidence based on a comparison of distinctive impressions. The National Academies’ report concluded that

With the exception of nuclear DNA analysis, however, no forensic method has been rigorously shown to have the capacity to consistently, and with a high degree of certainty, demonstrate a connection between evidence and a specific individual or source. . . . The simple reality is that the interpretation of forensic evidence is not always based on scientific studies to determine its validity.

The National Academies’ report called into question the manner in which courts had been considering such forensic science evidence in the past and expressed particular concern about overstatements of the confidence with which such matching identification may be made. The report called for new research into these techniques to “establish the limits and measures of performance and to address the impact of sources of variability and potential bias.”

Following publication of the National Academies’ report, the U.S. Department of Justice and the National Institute of Standards and Technology, part of the U.S. Department of Commerce, established a joint advisory committee to “enhance the practice and improve the reliability of forensic science.” The National Commission on Forensic Science, which ended its work in April 2017, issued a series of work products and recommendations to guide the improvement of research and practice in this area. The National Institute of Justice, as part of the Department of Justice, has funded a collaboration of a dozen or so academic institutions that constitute the Forensic Technology Center of Excellence. This collaboration is exploring novel uses of new technologies “to strengthen practice and improve the reliability of forensic science.” The work begun by the National Commission on Forensic Science is being continued by the Department of Justice, which recently announced the continuation of a program to develop uniform language for testimony and reports to guide expert testimony by forensic examiners.

The Center is monitoring all of these new forensic science initiatives and will be including such information in the forthcoming science education programs for judges.

Conclusion

Science education for judges requires distinctive programs that focus on the particular issues that judges are likely to encounter in considering challenges to admissibility, in resolving dispositive motions, and in sitting as the trier of fact in a bench trial. These programs are designed in collaboration with judges, scientists, and law professors to ensure that the information is both accurate and relevant to the task of judging. By strengthening judges’ abilities to deal with increasingly complex scientific and technical information, the Federal Judicial Center seeks to ensure that judges are prepared to meet the challenges of a complex and rapidly evolving culture. 

The author wishes to acknowledge the generous assistance of John Cook, Charles Arburg, and Paul Vamvas of the Federal Judicial Center in providing information on the range of science education programs for judges at the Center. The views expressed herein are those of the author and do not necessary reflect the views of the Federal Judicial Center.

Endnote

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