Should Judges Do Independent Research on Scientific Issues?
Cheng, Edward K., Judicature
Judges today are under increasing pressure to take an active role in policing the flow of scientific and other expert evidence into the courtroom. Most famously, in Daubert v. Merrell Dow Pharmaceuticals,' the Supreme Court tasked federal judges as all-important gatekeepers who are obligated to ensure that expert testimony is both relevant and reliable. Many state courts have subsequently followed suit, whether by adopting Daubert explicidy or by more stringently enforcing their own scientific admissibility standards.
The dilemma for judges is that they are not necessarily well-versed in the specialized fields over which they act as gatekeepers. Indeed, even among the scientifically inclined, gatekeeping can prove extremely challenging because the sheer breadth of modern knowledge precludes any one judge from being familiar with everything.
Faced with an important question in an unfamiliar and specialized field, responsible people often do research: they read reference books, scan journal articles, even search the Internet. May judges do the same when confronted with a complicated issue of scientific admissibility? But perhaps more importantly, should they? The answer is strikingly controversial. A survey of state appellate judges and a study of current statutes and case law show significant disagreement and ambiguity on the issue. In addition, as the latter sections of this article and the judicial reactions that follow it suggest, the desirability of independent research may depend significantly on a judge's vision of the legal system.
Appellate judges survey
To ascertain judicial attitudes on independent research, surveys were distributed to a group of 136 state appellate judges attending a law and science conference. In order to measure judicial attitudes, rather than controlling law, the survey asked participants to disregard any specific rules in their jurisdiction. Survey participants were given a scenario under which a judge faced a difficult scientific admissibility issue in a pharmaceutical products liability case. They were then presented with a variety of methods by which the hypothetical judge could obtain additional, independent information on the drug to inform his or her admissibility decision. The survey asked the judges to rate the desirability of each practice using a scale of 1 (very undesirable) to 5 (very desirable). The response rate was approximately 60 percent.
Survey results showed judges divided on most independent research methods. For example, as seen in Figure 1, on the question whether it is desirable for a judge to "[f]ind and read medical journal articles (peer-reviewed) on the drug," 21 percent of respondents found the research to be "very desirable," while 25 percent found it to be "very undesirable." Respondents were similarly divided on the issue of reading medical treatises, as seen in Figure 2.
Only a few methods showed consensus among judges, and these all involved what are traditionally classified as ex parte communications. A resounding 89 percent of judges responded that informally consulting a family physician was "very undesirable," and 88 percent agreed that informally consulting a medical school professor was to some degree undesirable. Strong judicial norms, developed through ethics rules against ex parte communications, likely played a key role in generating uniform answers in these categories.
The results carry the usual caveats that accompany surveys as well as a few additional ones. Selection effects are a particular concern here because of the response rate and the original conference sample itself. Respondents may have had more favorable views toward judicial research, because they had already demonstrated some interest in participating in judicial education and academic research. Conversely, ethical surveys may generally have a tendency to skew toward perceived ethical responses, since respondents may feel that they have more to lose in appearing unethical than overly cautious. …