Science-savvy judges in short supply

As more sophisticated science creeps into the courtroom, judges are going back to school

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Like many judges, Arizona Supreme Court Chief Justice Thomas Zlaket jokes that he chose law to escape from science and math. But they're becoming harder to avoid.

From DNA-based criminal appeals to patent disputes over computer software, science and technology are creeping into a growing number of court cases.

So on his summer vacation this year, Judge Zlaket went back to school at the University of Virginia (UVA) and learned the difference between a median and a mode. "It was a great experience," Zlaket says. "I realized how much I didn't know."

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Judges throughout the country are seeking new ways to learn about scientific methods and are turning to objective scientists for help during trials. They admit high-quality justice requires more science-savvy judges.

"The courts work best when they are well informed," United States Supreme Court Justice Stephen Breyer told a Harvard University conference on DNA and the Criminal Justice System last month in Cambridge, Mass.

But the Supreme Court has only increased the scientific burden on judges over the past decade. A 1993 decision directed federal trial judges to determine whether evidence is sufficiently grounded in scientific principles to be introduced at trial. Many state courts have adopted similar standards.

New gate-keeping role

The new gate-keeping role requires judges to understand the underlying science at issue, says University of Utah law professor Susan Poulter. But many judges lack the skills needed to weed out the junk. "It's a lucky break when one of these cases that involves a heavy dose of scientific evidence ends up in front of a judge who can really understand it," says Prof. James Richardson, who directs the University of Nevada, Reno's (UNR) Judicial Studies Program.

A UNR survey of 400 state trial judges found that half believed their education left them unprepared to deal with scientific evidence. Many appellate judges say they're no better equipped.

"I'm scientifically illiterate," says Judge Pamela Ann Rymer of the US Court of Appeals for the Ninth Circuit. "I'm therefore typical of members of the judiciary of my age who were a product of a generalist liberal arts education and a generalist legal practice."

Except in specialized courts like bankruptcy, most judges are generalists, who jump from one legal issue to the next. Judges must also assume multiple roles in each case.

"Being a judge is a really demanding job," says University of North Carolina law professor John Conley. "You're supposed to be so many things: a well-educated lawyer, something of a psychiatrist, and, for short periods of time, you have to become knowledgeable on almost an infinite number of topics."

The learning curve only steepens when precedent-bound judges trained to find final answers confront science's more abstract and uncertain truths.

Judges with formal scientific training say their background helps bridge the gap between the two different disciplines.

"You feel more comfortable and confident in the decisionmaking process," says Judge Pauline Newman of the US Court of Appeals for the Federal Circuit. She earned a PhD in chemistry before entering law school.

But no judge can keep up with all the new developments in law and science. To help them stay fresh, about half the states require judges to pursue continuing education.

Many state courts are hosting seminars run by the Einstein Institute for Science, Health and the Courts (EINSHAC). The nonprofit organization has educated 1,600 judges about genetics during the past five years, president Franklin Zweig says.

Other judges are visiting scientific facilities to get a hands-on education. Wisconsin Supreme Court Chief Justice Shirley Abrahamson recently led the state's appellate judges on a field trip to the state police crime lab.

They watched technicians perform fingerprint matching, ballistic testing, and check alterations. "It gives you a sense, when you hear the evidence, of where it really came from and how was it done," Justice Abrahamson says.

Individual judges can also go back to campus. Both the University of Virginia and the University of Nevada at Reno offer master's degrees for judges. Each summer, 25 appellate judges move into UVA student dormitories to learn about everything from anthropology to the Russian legal system, says program director George Rutherglen. Participants earn a master's in the judicial process after 12 weeks of classroom work over two years.

Duke University and the Federal Judicial Center, which is the federal court's research and education arm, offer shorter seminars for judges.

At Duke's week-long "Judging Science" program, judges learn about admissibility, experimental design, causation, and toxicology. The classes require no prior knowledge and provide practical skills that judges can use in their work, according to Duke law professor Neil Vidmar.

Intelligent consumers, not scientists

Instructors say their mission is to make judges intelligent consumers rather than to turn them into amateur scientists.

"We're getting them to a level so they're comfortable seeing and hearing this evidence and understanding when somebody's trying to pull the wool over their eyes," says Lawrence Livermore National Laboratory scientist Linda Ashworth, who serves as an EINSHAC instructor.

Kansas Court of Appeals Judge Robert Gernon says he returned to Topeka with a "healthy skepticism" for popular presentations of science after two summers at UVA.

Critics fear judges who attend some privately funded educational programs may be unduly influenced by speakers with political agendas.

In July, Washington-based public interest group Community Rights Counsel released a report that found privately-funded judicial education is "overwhelmingly dominated by pro-market antiregulatory seminars." It singled out seminars by the Montana-based Foundation for Research on Economics and the Environment.

Federal trial court judge Ernest Torres of Rhode Island says concerns that "judges are being brainwashed" at those seminars are "greatly exaggerated."

But Senators John Kerry and Russell Feingold introduced a bill in the Senate last summer that would prohibit federal judges from accepting all-expense-paid trips to judicial seminars. Instead, their bill would create a judicial education fund to reimburse judges who attend seminars approved by the Federal Judicial Center.

Even the best designed general-education programs have their limits. Many judges say they're not sure what's the best subject for study since they never know what issue might pop up next. And once a trial starts, it's too late to enroll in a class.

During trials, judges say they usually rely on the parties' lawyers and experts to help them understand issues. Take federal trial judge Stewart Dalzell of the eastern district of Pennsylvania, who had never logged onto the Internet before a challenge to the Communications Decency Act landed on his docket in 1996.

At his request, lawyers in the case gave him a Web tutorial in the courtroom and prepared such a good synopsis of the Internet's development that a University of Pennsylvania physics professor assigns it to his students, Judge Dalzell says.

But trial judges say they can't always depend on the parties to explain what evidence and experts to admit. "Sometimes you don't know you've got a charlatan until you've gotten some help," says Federal District Court Judge Owen Forrester of the Northern District of Georgia.

For guidance, more judges are turning to objective scientists, who can walk them through proper scientific methodology. Federal evidence rules have long allowed judges to appoint experts. But judges say they never knew where to look for help.

In response, Duke University and the American Association for the Advancement of Science (AAAS) have both launched new efforts to connect judges with scientists. Starting next year, federal trial judges will be able to call up the AAAS and request an independent expert. Within a couple of weeks, AAAS hopes to provide scientists who meets their needs and lack any conflict of interest, says project manager Deborah Runkle.

Scientists say participating in trials requires some adjustment, however.

"If you're brought in," says physicist William Hendee of the Medical College of Wisconsin, "you have to be careful not to go beyond the body of knowledge and be drawn into making conclusions and speculations or judgments for which you are no more of an expert than anyone else in the courtroom."

Judges and scientists say they need to better understand each other. That means talking long before trial, Justice Breyer told participants at Harvard's DNA conference. Breyer encouraged lawyers, judges, scientists, and policymakers to "engage in an on-going extended policy-oriented conversation" outside of court.

"The best answers will arise when the legal issue is focused by previous conversations," Breyer said.

(c) Copyright 2000. The Christian Science Publishing Society

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