Independent Research on Scientific Issues by Judges Must Be Carefully Weighed and Considered

By Marlow, George D. | Judicature, September/October 2006 | Go to article overview

Independent Research on Scientific Issues by Judges Must Be Carefully Weighed and Considered


Marlow, George D., Judicature


Professor Edward K. Cheng is to be congratulated for his article.1 His well written, well researched, and well reasoned writing favors us with an important discussion about a topic that has gradually surfaced onto the legal landscape over the last 15 years, following and accompanying increasing efforts by lawyers to import scientific discovery and theory into the trial of cases. It should surprise nobody that one important issue this development has raised is whether-without the knowledge of, and absent a request from, the parties to a lawsuit-judges may enter the library or log onto the internet to research for themselves a question of science or technology that is subjudice, and which may not have been adequately presented by counsel. As Professor Cheng makes clear, this issue implicates our notions of due process and our standards of judicial ethics.

It is probably fair to assume that judges today are more frequently tempted to engage in independent reading of scientific and technological data as a result of the unprecedented explosion of scientific and technological research and knowledge we have all witnessed during the 20th century and beyond. Creative attorneys have not been passive bystanders, but, rather, have actively responded to this extraordinary phenomenon. Thus, they have looked to physical, biological, social, and other areas of science and technology for answers to the questions their lawsuits pose, questions that judges and juries must answer. Since relevant science can, often conclusively, resolve a case or controversy, society has a profound interest in having its judges welcome reliable scientific evidence with open arms and an open mind.

Internet research

Before the internet emerged as a major source of information, a curious judge who sought to understand a question of science would most often be required to visit a library or find some other way to locate an authoritative source. Today, the judge need only push a few buttons in the comfort of his or her home to open up a world of written material on virtually any subject known to humanity. Unlike the informal and formal screening inherent in the publication of most books and of articles published in professional journals-all of which are normally found in a traditional general or specialized library-there is no comparable process to screen writings that find their way onto the internet. Unless one is aware of, and sticks only to known publications with peer review standards-which, of course, is itself no guarantee of quality-there is no equivalent assurance that much of the matter found on the internet is screened at all, or is at all reliable. I would argue that the lack of any formal or informal structure or process, and the lack of any cost associated with publishing information on the internet, are among the primary reasons that in the year 2006 and beyond the issue of ex parte, sua sponte, independent research by judges during the decision-making process must be so carefully weighed and considered, a goal the Cheng article helps us achieve.

Educating judges

To allow such ex parte judicial research via the internet ignores the great value of a lawyer's role in an adversary system. I see lawyers-in cases involving a novel theory of science-as screeners of false and useless information, and, as much as anything, the court's teacher of new scientific or technological theory that these lawyers are asserting or resisting for their clients. Giving litigants notice of the material a judge has sua sponte decided to research and read is the best way to encourage attorneys to also see themselves that way, and to give them the opportunity to fulfill this vital aspect of their advocacy role.

Modern judges have, of necessity, been asked to become gatekeepers, responsible to make sure that only reliable-and not junk or fanciful-scientific theory enters the truthfinding process. In response, New York is only one of many states that has adopted an educative approach, and has enhanced its judicial education programs to assist judges to understand science and technology better. …

The rest of this article is only available to active members of Questia

Sign up now for a free, 1-day trial and receive full access to:

  • Questia's entire collection
  • Automatic bibliography creation
  • More helpful research tools like notes, citations, and highlights
  • Ad-free environment

Already a member? Log in now.

Notes for this article

Add a new note
If you are trying to select text to create highlights or citations, remember that you must now click or tap on the first word, and then click or tap on the last word.
One moment ...
Default project is now your active project.
Project items

Items saved from this article

This article has been saved
Highlights (0)
Some of your highlights are legacy items.

Highlights saved before July 30, 2012 will not be displayed on their respective source pages.

You can easily re-create the highlights by opening the book page or article, selecting the text, and clicking “Highlight.”

Citations (0)
Some of your citations are legacy items.

Any citation created before July 30, 2012 will labeled as a “Cited page.” New citations will be saved as cited passages, pages or articles.

We also added the ability to view new citations from your projects or the book or article where you created them.

Notes (0)
Bookmarks (0)

You have no saved items from this article

Project items include:
  • Saved book/article
  • Highlights
  • Quotes/citations
  • Notes
  • Bookmarks
Notes
Cite this article

Cited article

Style
Citations are available only to our active members.
Sign up now to cite pages or passages in MLA, APA and Chicago citation styles.

(Einhorn, 1992, p. 25)

(Einhorn 25)

1

1. Lois J. Einhorn, Abraham Lincoln, the Orator: Penetrating the Lincoln Legend (Westport, CT: Greenwood Press, 1992), 25, http://www.questia.com/read/27419298.

Cited article

Independent Research on Scientific Issues by Judges Must Be Carefully Weighed and Considered
Settings

Settings

Typeface
Text size Smaller Larger Reset View mode
Search within

Search within this article

Look up

Look up a word

  • Dictionary
  • Thesaurus
Please submit a word or phrase above.
Print this page

Print this page

Why can't I print more than one page at a time?

Full screen

matching results for page

Cited passage

Style
Citations are available only to our active members.
Sign up now to cite pages or passages in MLA, APA and Chicago citation styles.

"Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences." (Einhorn, 1992, p. 25).

"Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences." (Einhorn 25)

"Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences."1

1. Lois J. Einhorn, Abraham Lincoln, the Orator: Penetrating the Lincoln Legend (Westport, CT: Greenwood Press, 1992), 25, http://www.questia.com/read/27419298.

Cited passage

Welcome to the new Questia Reader

The Questia Reader has been updated to provide you with an even better online reading experience.  It is now 100% Responsive, which means you can read our books and articles on any sized device you wish.  All of your favorite tools like notes, highlights, and citations are still here, but the way you select text has been updated to be easier to use, especially on touchscreen devices.  Here's how:

1. Click or tap the first word you want to select.
2. Click or tap the last word you want to select.

OK, got it!

Thanks for trying Questia!

Please continue trying out our research tools, but please note, full functionality is available only to our active members.

Your work will be lost once you leave this Web page.

For full access in an ad-free environment, sign up now for a FREE, 1-day trial.

Already a member? Log in now.