of A Judge's Deskbook on the Basic Philosopies and
Methods of Science,
by Shirley A. Dobbin, Ph.D, and Sophia I. Gatowski, Ph.D
Introduction and Overview
Our country's faith in science and its commitment to judicial resolution of disputes ensure that the judiciary will continue to be called upon to decide questions on the frontiers of science; these questions will arise in cases that raise profound social, economic, and public policy concerns. The time has come to give the judiciary the support it needs to perform this difficult task. 1
Trial judges at both state and federal levels are being called upon more frequently to make decisions involving proffered scientific evidence. All kinds of evidence from the physical, chemical, biological, and social sciences is being proffered in mass tort cases involving alleged damage to people or to the environment, as well as in cases as varied as murder trials and custody disputes. Psychological syndrome and 'profile' evidence is also proliferating rapidly, quite often in difficult cases involving allegations of child sexual abuse, spouse battering, and sexual assault. Indeed, the contemporary climate in the courtroom is one where science is proffered more frequently in more varied cases, requiring judges to become more discerning 'gatekeepers' as they dispense justice.
Within the increasingly science-rich culture of the court, trial judges are being called upon to examine the methods, techniques, and underlying logic of science before making admissibility rulings. In order to carry out their duties effectively, judges must be able to discern 'good' science from 'bad' science, which in turn means that judges must come to some understanding of the philosophy and sociology of science, and the proper ways of doing science. Judges must be able to assess the validity of purportedly scientific evidence proffered by attorneys and experts, whether the judge is handling a bench trial, deciding a motion in limine to suppress certain evidence, presiding over a pre-trial hearing concerning the evidence, or making a ruling on admissibility with the jury present. Whether or not judges possess the necessary level of scientific literacy required by such admissibility standards (and specifically the guidelines therein) is a matter of some controversy. Indeed, current practice and training of the judiciary may not sufficiently prepare them to perform the role of scientific evaluator.2
The courts' ability to handle complex science rich cases has recently been called into question, with widespread allegations that the judicial system is increasingly unable to manage and adjudicate science and technology issues. Critics have objected that judges cannot make appropriate decisions because they lack technical training, that jurors do not comprehend the complexity of the evidence they are supposed to analyze, and that the expert witnesses on whom the system relies are mercenaries whose biased testimony frequently produces erroneous and inconsistent determinations. If these claims go unanswered, or are not dealt with, confidence in the judiciary will be undermined as the public becomes convinced that the courts as now constituted are incapable of correctly resolving some of the most prewing legal issues of our day.3
The Deskbook that comprises one component of this curriculum is not intended to instruct judges about whether or not specific types of scientific evidence should be admissible. Rather, this Deskbook addresses critical issues with respect to the philosophy of science and the scientific method. It is hoped that this curriculum will aid in identifying issues and clarifying questions relevant to admissibility rulings, such as the relevance, reliability, and methodology of scientific evidence. Specific types of evidence are highlighted for illustrative purposes only. The focus of this curriculum is the philosophy and methods of science, not the philosophy and methods of law.
The scientific and technological communities ot relevance to the court include:
- mathematical sciences (mathematics and statistics);
- computer science;
- physical sciences (e.g., chemistry and physics);
- Iife sciences (e.g., biology, medicine, agriculture);
- environmental sciences (e.g., atmospheric sciences, earth science,oceanography);
- social and behavioral sciences (e.g., psychology, economics, geography, political science, sociology,anthropology);
- forensic sciences (e.g., bite mark analysis)
- engineering (civil, chemical, electrical, industrial, mechanical).
A number of very useful and comprehensive guides to scientific evidence for the judiciary already exist.4 However, this curriculum makes a unique contribution. It is unique because the content areas and issues highlighted were selected for inclusion in the curriculum on the basis of responses provided by 400 state trial court judges around the country who participated in an extensive survey about scientific evidence.5 Information obtained from the survey about gaps in judges' knowledge and understanding of science and scientific method, as well as their experiences in dealing with various kinds of proffered scientific evidence, was used to shape the curriculum. This wealth of information about knowledge and practice was supplemented with an examination and analysis of case law to provide additional context. In essence, the curriculum presented in the following pages was developed, in large part, by judges, for judges.
Education of the judiciary becomes increasingly important as the system receives more and more cases that require judges to have some familiarity with scientific methodology and the factors scientists consider when they evaluate scientific work. Some comprehension of statistical and sampling concepts is crucial, given their importance in such disparate types of litigation as antitrust, discrimination, trademarks, and toxic torts. Education is therefore needed ... to provide basic information.6
In order to better achieve these goals, a national survey of state trial court judges was conducted. The survey gathered information about judges' understanding and knowledge of scientific methods and principles, opinions about the judicial role with respect to the admissibility of scientific evidence, attitudes toward the Daubert guidelines, and attitudes toward scientific evidence more generally. This information provided a national snapshot of the state judiciary's experiences with, and understanding of, science and scientific evidence. It also served to highlight those areas in which judges are in need of the most guidance. This curriculum was designed specifically to address those areas&emdash;it is specifically tailored to meet the needs of the judiciary.
Organizational Overview
The structure and organization of this curriculum reflect the comments and recommendations offered by judges who participated in the national survey (at the end of the telephone survey judges were invited to make suggestions about the scope, nature, and organization of the curriculum), as wel1 as comments provided by those judges who participated in focus groups and served as reviewers.
The vast majority of judges indicated that they wanted the curriculum to provide an overview of science, not an overview of law. Further, rather than an in-depth treatment of specific types of scientific evidence, judges indicated that they wanted an overview of the general methods and principles of science that can be applied across a variety of scientific disciplines. Thus, the focus of this curriculum is science&emdash;its philosophy and methods. Two specific types of scientific evidence, psychological and psychiatric evidence and DNA evidence, are included in this curriculum for illustrative purposes only. These specific types of evidence were chosen because, based upon the results of the national survey, judges find both types of evidence to be particularly problematic, and problematic for different reasons. Moreover, the selection of two such different forms of evidence serves to illustrate commonalities and differences between scientific disciplines.
This judicial curriculum comprises three parts:
(1) the Deskbook;(2) an Instructor's Manual, to facilitate classroom teaching; and
(3) a Website.
The three components of this curriculum can be used either individually or in concert with each other. Each chapter in the Deskbook focuses on issues specific to the philosophy and conduct of science&emdash;e.g., the scientific method, including both quantitative and qualitative approaches, peer review and publication, and statistics. Each chapter presents an overview of the issues involved, raises issues to be addressed, and poses critical questions that can be adapted by the judiciary as decision-making aids. These critical questions are not presented as an exhaustive list that judges should pose when making admissibility decisions about scientific evidence (or any other decisions about the use of scientific evidence in the court). Rather, the questions are presented as indicators of the issues that scientific experts, and other purveyors of science, should address and comment on when proffering science for use in the court. These questions represent what judges should be listening for when scientific evidence is presented and what they should be asking about when the information is not forthcoming.
Each chapter also presents some questions for further reflection. The purpose of these questions is to encourage the reader to actively engage the material, to consider alternative points of view, and to actively reflect on his or her own decision-making process. At the end of each chapter a glossary of terms and a short list of suggested readings is provided, as well as a page for "judge's notes."
The Instructor's Manual, included as the final component of the Deskbook, contains chapter outlines, key concepts, suggested group exercises, and discussion questions. The Instructor's Manual has been written so that it can be used by instructors to facilitate classroom presentations of this curriculum or by individual judges using the Deskbook as an independent, self-directed learning tool.
Goals of the Curriculum
The goals of this curriculum are (1) to improve generally the knowledge base upon which judges 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 goals of the curriculum are:
- To educate judges about the general principles of science and scientific methodology;
- To help judges become better informed decision-makers with respect to the admissibility of scientific evidence; and
- To provide judges with a general knowledge base so that they can be critical consumers of science and scientific evidence.
A national survey of state trial court judges
A representative sample of state trial court judges was surveyed (N=400) to ascertain their general scientific literacy, understanding of admissibility criteria, and experience in dealing with various kinds of scientific evidence. Baseline data from this survey were crucial in the development of this curriculum (e.g., data guided selection of content areas and indicated appropriate areas for focused attention). The representative nature of the sample allowed for the development of a properly targeted and broadly applicable curriculum.
Research Objectives
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Objective 1: |
To assess trial judges' knowledge and understanding of scientific principles and practice and how those principles and practices relate to major decisions about the admissibility of scientific evidence. |
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Objective 2: |
To examine case law, looking for patterns and trends, while highlighting problematic areas and applications for close attention, in order to better educate judges about especially difficult issues. |
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Objective 3: |
To develop a curriculum tailored to the needs of state trial court judges, using results from objectives 1 and 2. |
The Survey Sample
To be included in the sample, a judge had to be either (1) sitting on the bench of the state trial court of general jurisdiction, or (2) sitting on the bench of a court of special jurisdiction, the docket of which included cases likely to contain the types of evidence relevant to the study. The list of judges' names and information regarding the jurisdiction of their courts was obtained from the 1997-1998 edition of The American Bench. Judges in the sampling frame (i.e., The American Bench) were stratified first by federal circuit and then by state. These judges were then randomly, but proportionately, sampled. That is, judges were drawn to obtain a sample that was representative of both the geographical distribution of judges and the number of judges using our admission criteria in each state.
Securing Participation
Judges were initially sent a letter of introduction. The letter outlined the nature, purpose, and goal of the research, as well as the importance of the information to be obtained. Within a few weeks of mailing the letter of introduction, judges received follow-up telephone calls from a survey staff member. Following a script designed to encourage participation, the staff member discussed the research further with the judge. Judges were assured that their names would not be reported in connection with their responses. If the judge agreed to participate in the research, the staff member scheduled a date and time for the interview. The overall response rate for the survey was 67%.
Note that 67% is a very high response rate given the nature of the individuals to be surveyed (i.e., high status, remote professionals) and the amount of time necessary to a complete the survey (i.e., telephone interviews averaged 60 minutes and included a mailed follow-up). This high response rate provides support for the claim that science and technology issues are becoming increasingly relevant to judges and that judges are becoming increasingly concerned with how best to manage and evaluate scientific evidence.
Endnotes:
1. William T. Golden, Co-Chair, and Joshua Lederberg, Co-Chair. (1993). Foreward, Science and Technology in Judicial Decision Making: Creating Opportunities and Meeting Challenges. Carnegie Commission on Science, Technology and Government.
2. Supra, note 1, Carneige Commission; Jasanoff, S. (1993). "What Judges Should Know About the Sociology of Science." Judicature, Vol. 77(2), pg. 77-82; Miller, P.S., Rein, B.W., and Bailey, E.O. (1994). "Daubert and the Need for Scientific Literacy." Judicature, Vol. 77(5), pg. 254; Richardson, J.T., Ginsburg, G.P., Gatowski, S.I. and Dobbin, S.A. (1995). "The Problems of Applying Daubert to Psychological Syndrome Evidence." Judicature, Vol. 79(1), July-August, pg. 17-24.
3. Supra, note 1, Carnegie Commission, pg. 8.
4. See for example: Black, B., Klein, M.S., and Brunette, S.A. (1994). Shepard's Expert and Scientific Evidence Quarterly - Evidence Series; Federal Judicial Center (1994). Reference Manual on Scientific Evidence; Faigman, D.L., Kaye, D.H., Saks, M.J., and Sanders, J. (1997). Modern Scientific Evidence: The Law and Science of Expert Testimony, Vol. I & Vol. 11. West; Clark, Boardman, Callaghan, and Parry, J.W. (1998). National Benchbook on Psychiatric and Psychological Evidence and Testimony. ABA Commission on Mental and Physical Disability Law and the State Justice Institute.
5. 400 judges served as interview subjects for the national survey of state trial court judges. Another 140 judges served as an educational comparison group, focus group participants, and reviewers. The responses of the 400 judges in the national survey are summarized in this curriculum.