November 01, 2017 Judicial Ethics

Scientific Knowledge or Ex Parte Facts? Maintaining the Ethical Distinction

By Marla N. Greenstein

The many articles in this current issue emphasize the compelling need for judges to maintain science literacy. Whether in a criminal case, a specialized court, assessing special needs of children, or the obvious medical malpractice case, science is everywhere. And while expert witnesses will be used to establish scientific reliability and formal assessments, judges must understand their language to meaningfully serve their gatekeeper role.

But how should judges acquire scientific knowledge needed for their literacy without risking undue influence by scientific experts in cases yet to come before them? Attending judicial conferences where the experts have been vetted and opposing theories represented by respected leaders in the field are good, reliable safeguards. So, too, journal articles focused on the role of the judge in assessing scientific information are not problematic. However, there are many private seminars, websites, science journals, and self-promoting science experts that may cross that invisible ethical line. Private seminars and websites sponsored by special groups that seek specific outcomes in cases are especially suspect.

Rule 2.9(c) of the ABA Model Code of Judicial Conduct states that a “judge shall not investigate facts in a matter independently and shall consider only the evidence presented and any facts that may properly be judicially noticed.” While apparently self-evident, when applied to the scientific issues that may be relevant in a matter before the judge, some judicial self-reflection and self-restraint may be required. So, where a forensic expert is testifying about bullet signatures in a criminal matter in front of you and you seem to recall an article questioning the technique used for identifying bullets, your urge to Google the article will be strong. No less compelling will be the special-needs child seeking placement by you where you know that child brain development expert who spoke at the spring judicial conference would be helpful.

Like many of the programs outlined in this Judges’ Journal, the Canadian National Judicial Institute has published a helpful Science Manual for Canadian Judges that delineates, among other issues, distinguishing expert scientific opinion from other expert opinion, normative issues in science, weighing scientific evidence, and, of course, the gatekeeper role. Judges must know enough science to make the difficult assessments in their judicial role, but not so much science that they are likely to impose their views of the science in place of those of an expert.

Because scientific knowledge evolves constantly, judges are also under an obligation to update their own science knowledge. Established scientific methods of the past may be the unsupported science of today. Wrongful convictions overturned by current DNA analysis are the most striking example. As science evolves, so must judges’ knowledge of new science to fulfill the ultimate goal of every judicial proceeding: a fair and just result. But balanced, vetted science training tailored to the special role of a judge is equally important in ensuring that fair and just result.