Judges Cooperating with Scientists: A Proposal for More Effective Limits on the Federal Trial Judge's Inherent Power to Appoint Technical Advisors
Hess, Robert L., II, Vanderbilt Law Review
Scientifically complex cases challenge the expertise of federal trial judges.1 Nonetheless, the United States Supreme Court has held that federal trial judges must take an active role in determining the admissibility of scientific evidence.2 The Court in Daubert v. Merrell Dow Pharmaceuticals, Inc. expressed its view that the adversary system is capable of handling most scientific issues,3 and noted that trial judges may seek the help of third-party experts.4 Thus, the federal trial judge confronted with a scientifically complex case may rely on the adversaries or may seek help from a third-party expert. When faced with this choice, judges usually rely on the adversaries.5 Some commentators lament this choices.6 They cite systematic flaws within the adversary system and argue that judges should rely on third-party experts more frequently.7 To combat judicial reluctance, influential observers including Justice Breyer have called for greater "cooperative efforts" between scientists and judges.8 The Court Appointed Scientific Experts ("CASE") demonstration project is such an effort.9 CASE facilitates appointment of third-party experts by identifying qualified and willing scientists for judges who wish to appoint a third-party expert.10
The conclusion that judges should seek help from people with more knowledge about the subject at hand makes common sense: If you do not know, ask somebody who does. Recourse to third-party experts, however, creates its own problems. Article III vests the federal judicial power in judges who are appointed to serve life terms and whose compensation cannot be lowered.11 If third-party experts exercise too much judicial power, judges abdicate their constitutional role, and Article III is violated.12 Thus, the Constitution limits judges' ability to delegate authority to non-- Article III actors.
Trial judges are also reluctant to assume power traditionally reserved to the parties. The federal courts operate under the adversary system.13 In the adversary system, the parties are responsible for educating the judge regarding the law and the facts.14 This system promotes personal autonomy, the search for the truth, and judicial impartiality.15
Notwithstanding the issues raised by the appointment of third-party experts, trial judges have inherent power to appoint outside experts, and the federal rules explicitly define two applications of this power. Federal Rule of Civil Procedure ("FRCP") 53 allows the court to appoint special masters,16 and Federal Rule of Evidence ("FRE") 706 allows the court to appoint experts who can testify at trial.17 Independent of these rules, the judge's inherent power also justifies technical advisor appointments.18 Technical advisors are non-testifying experts who help the judge understand complicated technical issues.19 Even though judges generally have the power to appoint outside experts, they normally defer to the adversarial process.20
Technical advisor appointments are particularly rare.21 Two factors most likely control judicial use of technical advisors: deference to the adversary system and the burden of finding a suitable technical advisor.22 In a survey of federal judges, two researchers found that trial judges highly esteem the adversary system,28 and this respect partially accounts for the low incidence of technical advisor appointments.24 The administrative burden of identifying prospective qualified technical advisors probably also deters judges from appointing technical advisors.25 Some judges have relied on personal or professional contacts to identify potential technical advisors.26 For judges without these contacts, the selection process is more cumbersome.27
The CASE project is calculated to decrease traditional judicial deference to the adversary system and to lessen the administrative burden associated with finding a third-party expert.28 The project endorses technical advisors generally and provides interested judges with a specific list of qualified and willing experts. …