When trial judges need a science teacher
New program offers scientific experts to help on increasingly complex
BOSTON — White lab coats may soon join the somber black robes in courtrooms around the United States.
Under a five-year pilot project, the nation's oldest scientific organization is gearing up to provide scientists to help federal judges and juries sort out cases with scientific or technical minefields.
As its designers envision the project, the court-appointed scientific experts could conduct miniseminars on the basic science involved in a case, help judges decide which scientific evidence can be used, or offer judges an independent view on testimony from "hired gun" experts. Others, however, question whether any experts can truly be neutral, and add that attorneys worry scientific testimony will work against plaintiffs.
The effort comes at a time when the products of science and technology - from DNA "fingerprints" to the probabilities of epidemiology - are appearing as "Exhibit A" with increasing regularity. And it represents the American legal system's struggle to cope with the complexity of such cases.
"There's been a significant increase in science and technology-heavy litigation, especially in my part of the world," says Pamela Ann Rymer, a judge with the US Court of Appeals for the Ninth Circuit in Pasadena, Calif., who chairs the pilot project's advisory committee. Yet many judges lack the training to help them sort through a thicket of technical issues, she says.
The pilot project, run by the American Association for the Advancement of Science (AAAS), hopes to fill the gap by acting as a source for judges seeking outside expertise.
Although federal judges have had the authority to appoint outside experts since 1975, few have done so when cases have involved scientific evidence. The reasons vary, says Thomas Willging, a senior researcher at the Federal Judicial Center in Washington.
Some judges say they understand the evidence and arguments sufficiently to rule on a case. Others don't know where to turn for experts, nor do they have clear rules for using them. Still others are reluctant to add the expense of court-appointed experts.
During the past six years, however, the incentives for using court-appointed experts have grown after three US Supreme Court rulings that clearly give judges the responsibility to determine the admissibility of scientific and technical evidence.
"These decisions have told the courts that trial judges must look at expert testimony more closely," says Dallas attorney Bert Black, co-chair of the National Conference of Lawyers and Scientists, a joint committee of the American Bar Association and the AAAS.
The cases most closely watched for the use of court-appointed scientific experts are the thousands of suits filed against Dow Corning alleging long-term health effects from defective silicone breast implants. Two years ago, Sam Pointer Jr., the judge overseeing the breast-implant cases before the federal courts, appointed a scientific team to evaluate research that could affect the outcome of the cases. Videotapes of the experts' depositions could then be used as evidence in the individual suits.
Last April, the scientific panel concluded that there was no evidence linking defective implants to the types of long-term diseases the plaintiffs alleged to have occurred as a result of the defects.
While these cases could serve as a model for using court-appointed experts, some legal analysts say attorneys may be hesitant to have the courts turn to researchers. "There's no such thing as a neutral expert," says Mr. Willging. "Any scientist who is an expert on the health effects of silicone gel is already an expert witness for one side or the other."
Although judges and scientists seem receptive to the notion of court-appointed scientific experts, attorneys are more hesitant, says Deborah Runkle, project manager for the program.
"There's a feeling that organized science is stacked against plaintiffs - that the tools of science are not geared up to identify a rare disease or the early stages of some disease, as the bad results of something," she says.
Other challenges stem from what others see as cultural differences between the lab and the courtroom. Scientists can have unrealistic expectations about how information will be used and the extent to which they will be insulated from cross examination or pretrial discovery. And attorneys often seek more certainty than scientists are comfortable delivering.
Also, courts will likely have to pay for experts the AAAS finds.
Still, some analysts say, the public stands to gain from the court-appointed scientific experts. "The major benefit is getting it right - having a legal rule founded on good science," says Willging. "Science changes faster than the law, and if you get a legal ruling based on inadequate science, it tends to stay in place."