SOURCE: AUTHOR: Carnegie Commission on Science, Technology, and Government DOCTITLE: The Work of the Federal Courts in Resolving Science-Based Disputes: Suggested Agenda for Improvement SECTITLE: The Work of the Federal Courts in Resolving Science-Based Disputes: Suggested Agenda for Improvement DATE: 1989 SUBJECT: science courts disputes PUBLISHER: Carnegie Commission on Science, Technology, and Government DOCTYPE: Book TITLEID: ISBN_ISSN: Text: THE WORK OF THE FEDERAL COURTS IN RESOLVING SCIENCE-BASED DISPUTES: SUGGESTED AGENDA FOR IMPROVEMENT * May 1989 This memorandum on improving the federal courts' use of science information in decisionmaking presents the views of a working group of the Carnegie Commission on Science, Technology, and Government. The purpose of the memorandum is to aid the Cabranes subcommittee's discussions of this subject at its meeting on June 4-5, 1989. The observations and issues set out here are drawn mainly from a preliminary statement of issues prepared under the auspices of the Carnegie Commission dated April 6, 1989; and a memorandum prepared by Professor E. Donald Elliott dated April 20, 1989. Both have been made available to the members of the Cabranes subcommittee. THE NATURE AND EXTENT OF THE PROBLEM It is widely acknowledged that the pace of scientific and technological development has increased dramatically. More and more, scientific and technological change has carried over into the courtroom where judicial decisionmakers are forced to confront issues of growing scientific complexity. Familiar examples are the epidemiological studies bearing on the effects of toxic chemicals in the air, ground and water; the noxious properties of a lengthening list of products such as Agent Orange, asbestos, DES, benedectin, urea-formaldehyde foam insulation, and the IUD. In the criminal law field, examples include the use of ballistics science, chemical tests for blood alcohol level or the presence of narcotics, and more recently, DNA footprinting. The results of social science research are increasingly placed in evidence with regard to specific disputes or with regard to broad controversies such as whether the death penalty is applied in a racially discriminatory way. Similarly, concepts of risk assessment are intruding into judicial and regulatory decisionmaking. In view of the importance of science-based decisionmaking for American society, it is imperative that the courts achieve the highest feasible level of understanding and competence in dealing with scientific issues. The reasons for the courts' deficiencies in these matters are well recognized. Most judges and jurors have not had sufficient training or practice to deal confidently with sophisticated materials from the realm of science. They require outside help. The main instrument for helping them has been the expert witness, nearly always a person who is hired by one side of the dispute or the other. However, instead of clarifying or illuminating the scientific aspects, each partisan expert attempts to persuade the decisionmaker that its side should prevail. The consequences of partisan experts' performances are often frustrating confusion for judges and juries and mistrust of the experts themselves. Instead of being enlightened, the decisionmakers often are more baffled than they were before the experts testified. For their part, many leading scientists refuse to go to court as "hired gun" expert witnesses. They are dissuaded by the adversarial environment and are reluctant to submit to cross-examination that challenges their competence, integrity and veracity, rather than scientific merit. The alternatives available to the courts to avoid relying on party-hired experts have not been effective. For example, even though the rules of evidence permit the district courts to appoint neutral experts, for unclear reasons federal judges rarely make use of this power. Even less frequently do they use panels of court-appointed scientists. Whether this is because of their inability to find qualified experts, out of fear that the neutrals' testimony will be given too much weight, or for other reasons, this alternative is greatly underused. Another neutral source of information is the scientific literature. Here the obstacles are, first, in gaining access to the relevant materials and, second, in assuring that the materials selected are reliable. Especially in appellate courts, the judges have felt free to take "judicial notice" of scientific studies even though these have not been introduced into the record made at the trial and have not been called to the notice of the attorneys so that they can be subjected to testing by the adversary process. The courts' deficiencies in these respects need correction or amelioration. The keys to this are to improve the flow of information, to enhance the judges' ability to deal with scientific materials, and to reform certain procedures. All these steps must be taken without compromising the positive features of the adversary process. That is one complicating aspect of the problem. Another is that there are no panaceas: different types of issues raise different types of problems and call for varying responses. As a first step, the FCSC could consider commissioning a report on the types of scientific issues presented to the courts, their frequency, and the problems of workload they represent. Some of the other needs and issues suggested for consideration by the FCSC are these: SCIENCE AND THE COURTROOM (1) The adversary process, despite faults and excesses, advances values that are widely regarded as essential to the American systems of justice. Among these are the party's active participation in the processing of the suit and the lawyer's zealous advocacy of the client's case. Some observers believe that the extensive use of court-appointed science experts or panels and the appointment of science advisors as court attaches may tend to compromise the adversary process. Despite the potential conflict, there are grounds for believing that an FCSC-sponsored analysis could identify improved procedures for the handling of scientific evidence in the courtroom without jeopardizing the integrity of the adversary system. In addition the FCSC could undertake an evaluation of the pros and cons of using panels of court-appointed experts ("Science Panels"), science masters, and the like, in various types of cases. (2) Issues regarding theories, findings and methods of the social sciences are commonly presented to the courts. Usually, they are more personal to the litigants and less concerned with broad scientific principles than many of the natural science issues. At times, the decision on a social science issue leads to important changes in the law including constitutional law. The "doll test" research referred to in the landmark school desegregation case is a vivid though much criticized example. Essential social science materials are often neglected by the litigants, requiring the court to become aware of materials by going outside the record and taking judicial notice of the literature. The FCSC could develop a set of procedures to enhance the fairness and accuracy of judicial notice of scientific information and materials, especially by appellate courts. A resource center might be created to advise on the methodological adequacy of relevant scientific studies. (3) Given the strong arguments against undue reliance on party-hired experts, alternative mechanisms for the identification of court-appointed experts may be needed. Furthermore, there is need to consider modification of procedures for cross-examination of expert witnesses to encourage testimony by outstanding scientists. The FCSC may want to arrange for preparation of a set of model procedures to govern the nomination, designation, utilization and compensation of court-appointed science experts. (4) Perhaps the Alternative Dispute Resolution movement offers a potential for improving science-based decisionmaking. While we would not expect an "alternative" tribunal to make the ultimate decision, it might undertake and report preliminary determinations to the traditional courts. The FCSC might want to commission the preparation of a set of procedures to govern the use of ADRs for science issues. (5) Disputes involving sophisticated science-based issues often require special tracking and treatment. Judges might benefit from a specially prepared volume addressed to the practical aspects of pretrial management and trial of a case turning on complex scientific material. The FCSC may wish to arrange for preparation and distribution to federal judges of a "Manual and Guidelines for Resolving Science Issues." JUDICIAL EDUCATION (6) Enhancing the judges' ability to identify, understand, assess and apply science materials can be done in various ways. One method is by general orientation offerings in judicial education programs. Another is by ad hoc programs on the eve of trial of a case that involves science issues. A corollary need is to improve the capability of judicial clerks in the same respect as the judges. To that end, consideration should be given to setting up a pilot program for teaching science concepts, theories and methods to law graduates who are about to assume duties as judicial clerks. Training in risk assessment should also be offered. The FCSC may wish to arrange for a systematic evaluation to determine the best methods of improving the ability of the judges (and their law clerks) to handle scientific materials in the courtroom. The Carnegie Commission stands ready to assist the subcommittee and the FCSC in responding to the challenge of issues such as the ones identified above. -------------------------------------------------------------------------- * - Submitted to the FCSC Subcommittee on Workload on behalf of the Carnegie Commission on Science, Technology, and Government