August 01, 2017

Teaching Judges to Be Gatekeepers of the Admissibility of Science: The Role of the ABA Judicial Division Forensic Science Committee

By Judge Stephanie Domitrovich and W. Milton Nuzum III

In our tradition-bound process in the United States, experts are often perceived as “hired guns” who are well paid by the litigants to provide testimony in the form of various types of methodologies to drown out opposing experts. Within this adversarial atmosphere, justice and science must coexist for the good of society. Historically, the courts have viewed science as an indispensable ally in their shared project of pursuing the truth. Scientists seek the truth by working diligently and gradually on their hypotheses, using relevant scientific methodologies to validate core insights. Scientists also recognize their evolving need to revise and refine their hypotheses and methodologies due to peer review and criticism emanating from various scientific communities. In the legal process, judges and jurors in our courtrooms must reach definitive decisions for “a particular moment in time, while this scientific process is going on.”1

Within this dynamic intersection of science and the law, judges make critical admissibility decisions as gatekeepers of scientific evidence in their courtrooms. Daubert v. Merrell Dow Pharmaceuticals, Inc.,2 is the leading case regarding this gatekeeper role of admissibility decision making. The Court in Daubert defined the judge’s role as a gatekeeper to admit scientific knowledge that assists the trier of fact in understanding the evidence and determining facts in issue in the case, and that has a valid scientific connection to the pertinent facts in the case. Having a methodology to educate judges on science is an important aspect of their ability to function effectively and efficiently as scientific gatekeepers in their courtrooms. What type of educational curricula can provide judges with tools to incorporate scientific and technological knowledge into their decisions?

Carnegie Task Force Report

In March 1993, four months prior to the Daubert decision, a Carnegie Commission task force released findings and results about judicial education in science and technology.3 The task force, formed in 1988, explored and examined how judges incorporated scientific and technological knowledge into their decisions in order to propose effective methods to educate judges. The task force relied extensively on their informal survey of science education programs for state and federal judges in the four-year period from 1988 to 1992. After reviewing 800 science education programs, the task force determined that less than 100 science education courses truly dealt with scientific evidence and expert testimony. Their findings revealed a vast majority of these scientific courses were developed to aid state trial judges. Faculty and presenters were drawn from the local areas. The task force praised only 25 of these programs for their in-depth examination of issues in science and technology, inclusion of academicians and experts as faculty, and ability to be duplicated.

The Carnegie task force report recognized how judicial education in science not only acquainted judges and scientists with each other’s methodologies but also afforded judges basic knowledge about science. Of particular note is the task force’s assertion that judges would benefit from some understanding of statistical and sampling concepts for areas of antitrust, discrimination, trademarks, toxic torts, epidemiology, and toxicology. Judges, as generalists handling many different areas of the law in a given jurisdiction, would be unlikely to learn and retain detailed knowledge of or familiarity with the vast array of science and technology issues that appear in courtrooms daily. Moreover, because judges have extensive demands on their time, the task force found judges had little time available for judicial education in the scientific and technological areas. Therefore, judicial educators should produce materials on complex scientific issues to which judges could refer when needed. Availability of such materials would be as valuable as the quality of those educational materials. Furthermore, the task force indicated that judges need more scientific judicial education involving ethical and moral considerations based on the assertion that judges would benefit from knowing the scientific and philosophical underpinnings to issues they must decide regarding quality of life, such as the right to die.

More importantly, the task force promoted that judges should obtain education through the “twin pillars,” by creating as well as distributing the educational materials they described as a science and technology reference manual. Although the task force believed that the reference manual would be useful to educate judges, the task force also realized that judicial programs in science are most effective if delivered in a manner that is interactive, utilizing conversation, dialogue, and debate. “Hands-on” programs would be most useful for educating judges, with the focus on scientific methods rather than substantive science. Problem-solving exercises would help judges understand how scientists think. The task force further recommended that judges be involved in interactive presentations, such as workshops, simulations, and mock trials, as opposed to lectures.

State Justice Institute Model Curriculum

In March 1999, a model curriculum entitled A Judge’s Deskbook on the Basic Philosophies and Methods of Science was funded by the State Justice Institute and others. This judicial deskbook was produced by James T. Richardson, Gerald P. Ginsburg, Shirley A. Dobbin, Sophia I. Gatowski, and others from the University of Nevada at Reno.4 Goals of the curriculum were: (1) to improve generally the knowledge base upon which judges could draw to make their admissibility decisions, and (2) to assist judges in articulating their decision-making process with respect to the admissibility of scientific evidence. Specifically, the curriculum was aimed at: educating judges about the general principles of science and scientific methodology, helping judges become better informed decision makers with respect to the admissibility of scientific evidence, and providing judges with a general knowledge base so that they could become critical consumers of science and scientific evidence. The curriculum was derived from a national survey of 400 state trial judges to discern their understanding of scientific concepts and experience with various kinds of scientific evidence. The curriculum explained the basics of the research process to introduce judges to the scientific methods of survey research. Qualitative and quantitative methods, data analysis as to statistics, and peer review, as well as other pertinent aspects of Daubert decision making, were explained in detail with glossaries and suggested readings. Specific sciences were described in detail, such as psychological and psychiatric evidence, assessments of future violent behavior, rape trauma evidence, and battered woman syndrome, as well as critical questions to consider regarding DNA evidence.

The authors intended judges to use this model curriculum as a reference deskbook on their benches; however, the authors did not conduct a follow-up survey to determine whether the deskbook was actually useful to trial judges. At that time, benchbooks and deskbooks were considered important tools for judges to use when making on-the-spot decisions from their benches for evidentiary rulings.

An open question is how practical would a model curriculum on science and technology education for judges be in assisting judicial educators in developing a specific set of courses for educating judges on these topics? With such a curriculum, judges and judicial educators could produce materials and courses on legal procedures, but such information in this format would appear to be inadequate and outdated today as well as cumbersome for reviewing the volume and various types of scientific evidence.

National Academy of Sciences Report

Fast forward to 2009 to the earthshattering publication of the National Academy of Sciences (NAS) report Strengthening Forensic Science in the United States: A Path Forward, which revealed that judges and lawyers do not have sufficient training and backgrounds in scientific methods “to fully comprehend the approaches employed by different forensic science disciplines and the strengths and vulnerabilities of forensic science evidence offered during trials.”5 The NAS acknowledged the need for judges to be better educated in forensic science methodologies and practices, but expressed concerns about the lack of available legal and judicial education regarding the forensic sciences. In fact, the report suggested any advances in forensic science disciplines should be transferred directly to judges for appropriate adjustments in their judicial decision making.

Other Judicial Courses in Science

Judicial education continued throughout the United States with the American Bar Association (ABA) Judicial Division hosting neuroscience courses provided by the American Association for the Advancement of Science (AAAS). Through these courses, judges learned about the research, validity, and reliability of brain scans as applied to evidentiary issues in courtrooms. These courses promoted cooperation, scientific freedom, responsibility, and outreach to better educate judges. Selected federal, state, and administrative law judges interacted with leading neuroscientists on violence and brain issues, memory and lie detection aspects, adolescent brain evidence, and explanations about states of consciousness. These courses have been supported by the Dana Foundation since 2006, and more than 25 seminars have been convened.

The National Judicial College, the University of Nevada at Reno, and various state judicial educators have designed Internet courses for judges, such as the Ohio Judicial College’s OhioCourtEDU, created by author Milt Nuzum. These courses include Addiction Treatment Technologies, Neuroscience Evidence, Computer Science & Internet Crime, Advanced Genetic Technologies, DNA Science and Advanced Forensic Technologies, and Courts and Scientific Evidence.

Another educational training course regarding science for judges is the Advanced Science and Technology Adjudication Resource Center (ASTAR), which was created by the Ohio and Maryland courts and the Einstein Institute for Science, Health and the Courts. ASTAR provided training to judges on how to handle cases with scientific and technological issues. ASTAR is now known as the National Courts and Sciences Institute (NCSI). The NCSI continues to orientate judges in general principles of case-related science, technology, data, and methods for determining the weight of evidence. It also trains judges to be long-term resources within their jurisdictions. Resource judges participate in courses specializing in areas such as molecular and comparative forensics, genetic engineering and biotechnology, health care outcomes research, ecosystem and climate sciences, and developmental neurobiology.6

ABA Judicial Division Forensic Science Committee

Concerned about this need for judicial and legal education in the forensic sciences, Judge David J. Waxse, the ABA Judicial Division chair for 2014–2015, created the Forensic Science Committee to educate judges and lawyers on scientific evidence. This Committee submitted a Resolution, which was approved by the ABA House of Delegates in August 2015, urging the National Commission on Forensic Science (NCFS) to develop model curricula in law and forensic science to train federal, state, territorial, and tribal court judges.

Also consistent with the mission of the Forensic Science Committee, the Summer 2015 issue of the ABA Judicial Division’s Judges’ Journal offered articles written by experts to provide scientific knowledge to judges and lawyers. These authors offered expertise in forensic metrology, medical forensic sexual assault examinations, and forensic handwriting comparison examination.7 Two articles provided opposing views on the admissibility of parental alienation evidence.8 Another, by Carol Henderson, former president of the American Academy of Forensic Sciences, and Diana Botluk, one of eight top online legal researchers, discussed available web resources to “keep abreast of the scientific advances as well as the changes in the rules of evidence.”9 Marla Greenstein, the Judges’ Journal’s expert in ethics, raised concerns about judges’ independent legal research.10 Judicial ethics rules may require judges to disclose their extrajudicial reading material in time for counsel to offer oral or written comments. Lawyers may offer additional material relevant to the material disclosed by judges. Michael Saks and Ashley Votruba suggested how courts may “better manage the poorly validated evidence offered by some forensic sciences” by providing “limits on admitted expert testimony in an effort to prevent the most misleading testimony from reaching jurors.”11

The Forensic Science Committee also accomplished another goal in educating judges to improve the gatekeeping function of the judiciary. The Committee sponsored a program titled The Role of the Courts in Improving Forensic Science on April 10, 2015, in Chicago, Illinois, with renowned presenters in science and technology. The Committee also produced a follow-up project by collaborating with Northwestern University Pritzker School of Law on a special issue of the Journal of Criminal Law & Criminology titled “Symposium Edition on Forensic Sciences,” published in November 2016. The journal solicited articles from authors who promoted ways of improving the quality of forensic scientific evidence admissible in our courtrooms. Authors wrote on various cutting-edge issues regarding the judicial gatekeeping of forensic scientific evidence.12

PCAST Report

On September 20, 2016, the President’s Council of Advisors on Science and Technology (PCAST) released a crucial new report beckoning for stronger scientific standards in the field of forensic science.13 PCAST recognized the critical gatekeeping role federal judges have in ensuring reliable and relevant expert testimony enters their courtrooms pursuant to Federal Rule of Evidence (FRE) 702. PCAST noted that the U.S. Supreme Court in Daubert suggested that judges should be mindful of FRE 706, which permits judges at their discretion to choose and obtain the assistance of experts to educate judges on science and technology. Such FRE 706 experts would provide independent assessments as to the validity of scientific methods and their applications.

PCAST also stated that judges should have better resources to evaluate forensic issues, such as feature-comparison methods, for use in the courts. PCAST named two resources: the Judicial Conference of the United States, which could develop best practices manuals, and the Federal Judicial Center, which could develop judicial educational programs for evaluating the scientific validity of forensic feature-comparison methods. Other relevant concepts encompass providing judges with knowledge about elementary statistics on sensitivity and false positive rate, confidence intervals, calculating results for conclusive tests, and Bayesian analysis.

Current State of Judicial Forensic Science Education

The Forensic Science Committee of the ABA Judicial Division is currently making plans to collaborate with another entity, the Center for Statistics and Applications in Forensic Evidence (CSAFE) to design a scientific evidence course for judges. CSAFE is a nationally recognized center that involves four universities and is coordinated by Iowa State University.

In 2014, the National Institute of Standards and Technology (NIST) awarded CSAFE a five-year, up to $20 million grant to establish a Forensic Science Center of Excellence based at Iowa State University. The Forensic Science Center includes researchers from Carnegie Mellon University in Pittsburgh; the University of California, Irvine; and the University of Virginia. The center is targeted to judges at all levels, who are expected to act as gatekeepers in the courts and to implement the Daubert criteria to evaluate evidence. Most of the scientific questions that arise in court involve statistics in some form; at a minimum, experts must provide an estimate of the error rate associated with whatever analysis they are presenting, which requires understanding of observation, sampling, and estimation uncertainty. Satisfaction of Frye requires only that the expert demonstrate “general acceptance” in the relevant community of the technique or method on which the testimony is based, but many of the concepts in this course will still be useful to judges who carry out their activity in Frye states. The course emphasizes concepts over technical detail and interpretation over implementation. Course planners do not assume that judges possess any prior statistical knowledge and include as many relevant examples as possible to illustrate statistical concepts.

In 2015, the NCFS recommended that the attorney general fund “the creation of a fair and balanced national curriculum on forensic science issues expected to be brought before courts.”14 This one-year curriculum would be developed initially for judges and lawyers and then be adapted to teach other stakeholders such as forensic science service providers (FSSPs), law enforcement, and victim advocates.

Unfortunately, on April 10, 2017, Attorney General Jeff Sessions announced that the NCFS—one of several federal initiatives launched as a result of the 2009 NAS report—would expire on April 23, 2017. His decision was to terminate the work of this commission, which began in 2013 and resulted in 43 work products and 23 recommendations.

Several NCFS members disagreed with Attorney General Sessions and warned that suspension of the input of independent scientists would put the Department of Justice at risk of “retreating into insularity and repeating past mistakes,” and “that no matter how well-intentioned, prosecutors lack scientists’ objectivity and training.”15 U.S. District Judge Jed S. Rakoff of New York, the only federal judge on the commission, stated: “It is unrealistic to expect that truly objective, scientifically sound standards for the use of forensic science . . . can be arrived at by entities centered solely within the Department of Justice.”16 Attorney Peter S. Neufeld, cofounder of the Innocence Project, asserted that by suspending the work of the NCFS, “the department has literally decided to suspend the search for the truth,” and “[a]s a consequence innocent people will languish in prison or, God forbid, could be executed.”17

Also on April 10, 2017, a National District Attorneys Association (NDAA) press release welcomed the nonrenewal of the NCFS’s charter.18 NDAA believes the NCFS had inadequate representation from state and local practitioner communities and was overrepresented by defense-related practitioners. NDAA also indicated that the NCFS did not make significant progress in the forensic science fields in that only a few of the NCFS’s recommendations were implemented.

Notwithstanding Attorney General Sessions’s recent actions, we can only hope he comprehends the importance of judicial education and continuing the funding efforts to educate judges. In fact, various authors have recently written about the evolving needs of judges for judicial education. Chief Justice Mary R. Russell of the Supreme Court of Missouri stated how judicial education is more than just training judges in a mechanical way as legal technicians.19 Judicial education must interrelate with this training to make judges the best they can possibly be in their professions in order to advance the law and justice. Judge Duane Benton and Jennifer A.L. Sheldon-Sherman explained how judicial education generally has progressed extensively over the last 50 years.20 Judges’ interests and needs should be the foundation to build their educational programs, and to do so, annual-based assessments by virtue of surveys and vouchers would permit judges to choose the judicial education courses they wanted to attend. These evidence-based mechanisms would be used to determine judicial needs for education.

In 2014, the New Mexico Supreme Court debuted a modern example of a state judicial education curriculum “to provide judges with knowledge and experience that will enhance their ability to evaluate whether scientific arguments meet the threshold requirements of admissibility.”21 Their collaborative project with the Los Alamos National Laboratory is known as the Judicial Science School. Justice Edward L. Chavez of the New Mexico Supreme Court states: “Preparing judges to competently rule on the admissibility of scientific evidence represents a new challenge in judicial education.”22 He asserts that “[t]he pedagogical relationship between the courts and the Laboratory scientists will enable judges to make more informed decisions about the admissibility of scientific evidence.”23 He believes that “[w]hen judges improve, lawyers must improve, and the people and businesses in our courts will benefit from a better justice system.”24 This science school curriculum occurs over five consecutive days and consists of five primary components: classroom lectures, cutting-edge scientific research presentations, hands-on laboratory exercises, field trips to unique experimental facilities, and mock admissibility hearings to evaluate science. Judges have the opportunity to be involved in hands-on experiences with new material introduced during various exercises following each primary lecture. Judges are tested before and after each program in order to evaluate their understanding of key learning objectives. Judges also engage in mock scientific evidence admissibility hearings to apply what they have learned in familiar courtroom settings.

Judges in the Los Alamos Judicial Science School are taught about scientific hypotheses, theories, and laws; the scientific method and its modern-day forms; causality, correlation, probability, and coincidence; understanding and quantifying confidence and uncertainty; and building and validating models. As Judge Cheryl Johnson of the Texas Court of Criminal Appeals and chair of the NCSI Center for Basic and Continuing Judicial Science Education aptly states, “[s]cientific issues are involved in an ever-increasing number of cases, both civil and criminal.”25

Conclusion

Judicial education must constantly evolve just as science and technology do in order to meet the many challenges judges face with the admissibility of cutting-edge issues in science and technology. Judges and lawyers fulfill their gatekeeping roles when they learn from experts and educators about the forensic science tools necessary to comprehend these cutting-edge issues in order to ensure justice. The ABA is leading the way in this judicial education initiative to improve the administration of justice for us and the world by educating judges about science and technology. We have only just begun . . . 

Endnotes

1. Carnegie Comm’n on Sci., Tech. & Gov’t, Science, Technology, and Government for a Changing World 22 (1993) [hereinafter Carnegie Task Force Report], http://www.ccstg.org/pdfs/ FinalReport0493.pdf.

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

3. Carnegie Task Force Report, supra note 1.

4. State Justice Inst., A Judge’s Deskbook on the Basic Philosophies and Methods of Science: Model Curriculum (1999), http://www.unr.edu/justicestudies/About/JudgesDeskbook.pdf.

5. Nat’l Research Council, Nat’l Acad. of Scis., Strengthening Forensic Science in the United States: A Path Forward 238 (2009), https://www.ncjrs.gov/pdffiles1/nij/grants/228091.pdf.

6. Nat’l Cts. & Sci. Inst., https://www.courtsandsciences.org/ (last visited July 6, 2017).

7. Ted Vosk, Uncertain Justice Measurement: Uncertainty and the Discovery of Truth in the Courtroom, 54 Judges’ J., no. 3 (2015); Lynn Hecht Schafran, Medical Forensic Sexual Assault Examinations: What Are They, and What Can They Tell the Courts?, 54 Judges’ J., no. 3 (2015); Thomas W. Vastrick, Forensic Handwriting Comparison Examination in the Courtroom, 54 Judges’ J., no. 3 (2015).

8. Judge Stephanie Domitrovich, The Parental Alienation Controversy: Two Opposing Views, 54 Judges’ J., no. 3 (2015); Rebecca M. Thomas & James T. Richardson, Parental Alienation Syndrome: 30 Years On and Still Junk Science, 54 Judges’ J., no. 3 (2015); William Bernet, Parental Alienation: Misinformation versus Facts, 54 Judges’ J., no. 3 (2015).

9. Carol Henderson & Diana Botluk, Scientific Evidence Resources on the Web, 54 Judges’ J., no. 3 (2015).

10. Marla N. Greenstein, Ethical Issues and Forensic Evidence: How Much Science Should a Judge Know?, 54 Judges’ J., no. 3 (2015).

11. Michael J. Saks & Ashley M. Votruba, “. . . and the Courts Have Been Utterly Ineffective, 54 Judges’ J., no. 3 (2015).

12. See, e.g., Stephanie Domitrovich, Fulfilling Daubert’s Gatekeeping Mandate through Court-Appointed Experts, 106 J. Crim. L. & Criminology 35 (2016).

13. President’s Council of Advisors on Sci. & Tech., Forensic Science in Criminal Courts: Ensuring Scientific Validity of Feature-Comparison Methods (2016), https://obamawhitehouse. archives.gov/sites/default/files/microsites/ ostp/PCAST/pcast_forensic_science_ report_final.pdf; see Eric Lander et al., PCAST Releases Report on Forensic Science in Criminal Courts, Obama White House (Sept. 20, 2016), https://obamawhitehouse.archives.gov/blog/2016/09/20/pcast-releases-report-forensic-science-criminal-courts.

14. Nat’l Comm’n on Forensic Sci., Forensic Science Curriculum Development (Dec. 8, 2015), https://www.justice.gov/ncfs/file/818206/download.

15. Spencer S. Hu, Sessions Orders Justice Dept. to End Forensic Science Commission, Suspend Review Policy, Wash. Post, Apr. 10, 2017, https://www.washingtonpost.com/local/public-safety/sessions-orders-justice-dept-to-end-forensic-science-commission-suspend-review-policy/2017/04/10/2dada0ca-1c96-11e7-9887-1a5314b56a08_story.html.

16. Id.

17. Id.; see also Pema Levy, Jeff Sessions Wants Courts to Rely Less on Science and More on “Science, Mother Jones (Apr. 24, 2017), http://www.motherjones.com/politics/2017/04/sessions-forensic-science.

18. Press Release, Nat’l Dist. Attorneys Ass’n, National District Attorneys Association Applauds Expiration of National Commission on Forensic Science (Apr. 10, 2017), http://www.ndaa.org/pdf/NDAA%20Statement%20on%20Expiration%20of%20National%20Commission%20on%20Forensic%20Science.pdf?utm_source=2017+Apr+Newsletter&utm_campaign=2017+April+Newsletter&utm_medium=email.

19. Chief Justice Mary R. Russell, Toward a New Paradigm of Judicial Education, 2015 J. Disp. Resol. 79.

20. Duane Benton & Jennifer A.L. Sheldon-Sherman, What Judges Want and Need: User-Friendly Foundations for Effective Judicial Education, 2015 J. Disp. Resol. 23.

21. Judicial Science School, Los Alamos Nat’l Laboratory Engineering Inst., https://www.lanl.gov/projects/national-security-education-center/engineering/judicial-science-school/index.php (last visited July 8, 2017).

22. Los Alamos Nat’l Lab., Judicial Science School (2015), https://www.lanl.gov/projects/national-security-education-center/engineering/judicial-science-school/_assets/JSS%20Brochure-LAUR-15-28598.pdf.

23. Id.

24. Id.

25. Id.

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By Judge Stephanie Domitrovich and W. Milton Nuzum III

Judge Stephanie Domitrovich, PhD (sdomitrovich@eriecountypa.gov) has served for 27 years as an elected general jurisdiction state trial judge of the Sixth Judicial District of Pennsylvania (Erie County) and is chair of the ABA Judicial Division Forensic Science Committee. W. Milton Nuzum III (Milt.Nuzum@sc.ohio.gov) is director of the Judicial & Educational Services Division of the Supreme Court of Ohio and a former trial court judge.