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CUTTING EDGE: The National Academy of Sciences and Judicial Education in Scientific Evidence
by Daphne A. Burns

Earlier this year, the National Academy of Sciences released a report on a two-year study entitled Strengthening Forensic Science in the United States: A Path Forward (NOTE 1). The study was authorized by Congress, which charged the NAS with creating a committee of experts to, among other things, “disseminate best practices and guidelines concerning the collection and analysis of forensic evidence to help ensure quality and consistency in the use of forensic technologies and techniques to solve crimes, investigate deaths, and protect the public (NOTE 2).”

The committee reached a consensus on what they determined are the most important issues now facing the forensic science community, and they agreed on 13 specific recommendations to address those issues. Principal among the issues the committee addressed are the following:

• Challenges facing the forensic science community;
• Disparities in the forensic science community;
• Lack of mandatory standardization, certification, and accreditation;
• The broad range of forensic science disciplines;
• Problems relating to the interpretation of forensic evidence;
• The need for research to establish limits and measures of performance;
• The admission of forensic science evidence in litigation; and
• Political realities (NOTE 3).

Of particular interest is Recommendation Nine which addresses insufficiencies in judicial education and training in scientific evidence in general. The report cites growing complexities and sophistication required in such areas as epidemiology and toxicology studies in mass tort litigation; econometric models in antitrust cases; and engineering principles in patent litigation (NOTE 4). The NAS goes so far as to state that the “[f]ailure to consider such evidence in a thoughtful and thorough manner threatens the integrity and independence of the judiciary (NOTE 5).” The report complains that science-based judicial education courses are not mandatory and there is “no fixed routine of continuing education in legal practice with regard to science (NOTE 6).” The committee emphasizes the importance of tailoring educational programs to the needs of judges—education that assists judges in evaluating the scientific rigor of expert testimony and the reliability of forensic evidence (NOTE 7). With an insufficient background and training in scientific methodology, judges “often fail to comprehend the approaches employed by different forensic science disciplines and the degree of reliability of forensic science evidence” offered at tria (NOTE 8)l.

This assessment obviously strikes at the heart of what is required of the judiciary. In Daubert v. Merrell Dow Pharmaceuticals, the U.S. Supreme Court ruled that trial judges must “ensure that any and all scientific testimony or evidence admitted is not only relevant but reliable (NOTE 9).” Judges must determine whether the methodology is scientifically valid and properly applied to the facts of the case (NOTE 10).

In essence, what has happened over the course of the last 15-plus years is that the burden of assessing the reliability of scientific and other expert testimony at trial has shifted from the scientific (or other expert) community to the legal community—principally the judiciary. However, legal education—whether in law school, or continuing legal or judicial education—has not, for the most part, responded to this fundamental change. According to the NAS, we are at the juncture where we can no longer turn away from this important need.

The challenge for judicial educators is, therefore, two-fold: first, to provide training in scientific methodology and increase education in current practices by various forensic and other science disciplines; and, second, to help judges stay apprised of changes as research methods and methodologies improve.

Scientific methodology generally means applying “logic to the problem of how to observe an empirical phenomenon in a way that will allow one to draw valid inferences about that phenomenon (NOTE 11).” In a nutshell, the issue is always “whether the methodology of the research is appropriate for the questions posed by the study, and whether the conclusions drawn are justifiable in light of the data collected and everything about the methods by which those data were generated (NOTE 12).”

The National Judicial College will present a web-based symposium on scientific evidence in complex civil litigation, including teaching scientific methodology, early next year in conjunction with the University of California, Hastings College of the Law Consortium on Law, Science and Health Policy. If you would like further information, or if judges in your state are interested in participating in the web-based symposium, please visit www.judges.org or contact the college at (800) 255-8343. We also offer courses on scientific evidence and testimony as part of our yearly offerings. If we may assist your state in any other way to provide this important education to your state’s judges, we hope you will contact us.

NOTES
1. National Academy of Sciences, Strengthening Forensic Science in the United States: A Path Forward (2009).
2. See P.L. No. 109-108, 119 Stat. 2290 (2005); H.R. REP. NO. 109-272, at 121 (2005) (Conf. Rep.); and S. REP. NO. 109-88, at 46 (2005).
3. National Academy of Sciences, supra note 1, at S-3 to S-10.
4. Id. at 234.
5. Id.
6. Id.
7. Id. at 234-35.
8. Id. at 238.
9. 509 U.S. 579, 589 (1993) (emphasis added).
10. Id. at 593. The Court later expanded its ruling to require that trial judges apply this special “gatekeeping” function to all expert testimony, not just “scientific” testimony. Kumho Tire Co., Ltd. v. Carmichael, 526 U.S. 137 (1999). Compare Frye v. U.S., 293 F. 1013, 1014 (App. D.C. 1923) (expert testimony must be “generally accepted” as reliable in the relevant scientific community to be admissible). The Daubert Court list the “generally accepted” test as one of four factors that can have a bearing on the admissibility of expert evidence. Id. at 593-95. The Daubert Court was construing the Federal Rules of Evidence in arriving at its conclusion. Id. at 585-98. Not all states have adopted the Federal Rules of Evidence or otherwise adopted the Daubert standard. As of last year, 25 states have accepted the essential principles of Daubert; four have stated their openness to reconsidering the rule they apply to expert testimony; eight states and the District of Columbia follow their own state version of a relevance/reliability determination; four states apply some combination of Frye and Daubert; and 10 states have rejected the Daubert standard, preferring to utilize the Frye test or an alternative. David L. Faigman, Michael J. Saks, Joseph Sanders & Edward K. Cheng, Modern Scientific Evidence: Standards, Statistics, and Research Methods—2008 Student Edition § 1:7, at 14-15 n. 8 (2008). In short, if the rule for the admissibility of expert evidence in your state requires judges to assess the reliability of the evidence, they should be trained in scientific methodology.
11. Faigman, et al., supra note 10, at § 4:1, p. 140.
12. Id. at 167.

Daphne A. Burns is a program attorney at the National Judicial College and a member of the NASJE Newsletter and Education committees.