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.
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.
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. …