In the modern courtroom, a judge is as likely to encounter Watson and Crick as Brandeis and Cardozo, despite the fact that the jurist’s formal education in science may have ended with high school chemistry.
But in an era when science is bombarding civil and criminal courts and judges are frequently asked to ponder theories posited by expert witnesses, more jurists are going back to school for crash courses in genetics and other sciences.
And they are not alone. Specialized classes for defense attorneys and prosecutors are becoming more common as well, sometimes as part of a formal continuing legal education program but more often as an extracurricular exercise to ensure that trial lawyers can at least speak the language of the experts they bring to the brave new world of courtroom science.
“We are not scientists and we will never be scientists, but as ‘gatekeepers’ we have an obligation to at the very least understand the science that is being proffered to the extent that we can ask questions of the attorneys, something as fundamental as: ‘What does it all mean? What does the process mean? And what do we hope to gain from this scientific information?” said Acting Supreme Court Justice Juanita Bing Newton, dean of the New York State Judicial Institute at Pace University in White Plains.
Through the institute and a federal grant program called ASTAR (Advanced Science and Technology Adjudication Resource), 32 New York judges completed a rigorous, 120-hour science curriculum, trading their black robes for white lab coats during part-time training spread out over 15 months. The program included an intensive 20-hour boot camp and an on-site substantive program in science or technology.
But U.S. Justice Department funding dried up last year and a new initiative, the National Courts and Science Institute (NCIS), was formed to take its place. Its board, which includes Bing Newton and Chief Judge Jonathan Lippman, was seated on July 1.
The new nonprofit will meet with Judicial Institute officials on Sept. 4 to adopt requirements and curricula. There are also ongoing discussions on offering judges the opportunity to obtain an advanced science degree, possibly through Pace.
“We are not trying to turn judges into scientists, but to be comfortable enough with the scientific process to ask the tough questions that will enable the judge to be a more confident ‘gatekeeper,’” Bing Newton said.
“Gatekeeper” is borrowed from the U.S. Supreme Court’s 1993 precedent, Daubert v. Merrell Dow Pharmaceuticals, 509 U.S. 579, which imposed on the judiciary the responsibility to ensure that the “science” that reaches the jury is truly science and not some rogue, questionable theory.
Even though New York is officially a “Frye state,” or one that adheres to the standard for assessing scientific evidence articulated by the U.S. Court of Appeals for the D.C. Circuit in Frye v. United States, 293 F. 1013, its judges still have a Daubert-like gatekeeping responsibility.
Franklin Zweig, who was president of ASTAR from 2005 to 2010 and then managed the Justice Department program through its completion in 2013, said many judges are ill-equipped to fulfill their gatekeeping role, simply because they lack the education and training to effectively determine if a particular theory is real science or junk science.
“Fair trials and valid appeals are virtually impossible in this day where every judge is confronted with what they call the battles of the warring experts, and unless they have some familiarity with what the expert is trying to say it is impossible to manage these proceedings effectively,” said Zweig, supervising consultant to NCSI. “The expert witness industry is huge, and the expert is going to opine in favor of his or her employing body. That puts the court at a huge disadvantage.”
Zweig was a professor and dean of the School of Social Policy and Community Services at the University at Buffalo in the 1970s before he enrolled in the UB law school.
“Then, I went to work for the U.S. Senate, where we heard a lot of pseudo science and I began wondering what sort of blarney the courts were hearing from the expert witness community,” Zweig said. “Shortly after that, the Supreme Court came down with Daubert and made judges responsible for the fitness of evidence.”
Zweig said most lawyers, and hence judges, majored in one of the humanities, such as history or political science, and generally shied away from science.
Acting Supreme Court Justice Richard Dollinger of Rochester, for instance, majored in English as an undergraduate at St. Michael’s College at the University of Toronto. He went through the ASTAR program to get up to snuff on the mind-boggling science he was encountering in his court and is now an enthusiastic member of the board and treasurer for NCSI.
“The advent of powerful computers means breaking down the genetic code and coming up with genetic answers, and that is accelerating at a rate beyond belief,” Dollinger said. “Chemical companies are moving in that direction in pharmaceuticals because they realize that if you can unlock the genetic secrets you may be able to fight disease.”
Dollinger said the science that comes through the courtroom door these days ranges from the loci of DNA to the maturation of the adolescent brain, and factors into all manner of civil and criminal cases.
“Sooner or later, just like railroads came to the courtroom, like automobiles came to the courtroom, like hip replacements came to the courtroom because of issues related to reasonable care, genetics and genetic testing and genetic treatments are going to come to the courtroom as well,” Dollinger said. “If the judges aren’t prepared for this kind of science, frankly, the experts will run all over us.”
Dollinger said that legal specialists are often well versed in science—more so than judges—or at least adequately schooled by their expert witness on the scientific issue du jour. But he said general practitioners are frequently “lost at sea” when it comes to science.
Going forward, Dollinger said, attorneys will need to become more familiar with emerging scientific theories simply to intelligently converse with their own experts.
‘Better Armed’ Attorneys
Some legal organizations are recognizing and seeking to close that knowledge gap.
Last month, for example, more than 100 public defenders gathered for a novel forensic college cosponsored by the Benjamin N. Cardozo School of Law and the National Association of Criminal Defense Lawyers (NACDL).
“Training lawyers in the latest in forensic science means we are creating a network of public defenders who are better armed in the courtroom and more prepared to win their case,” said Barry Scheck, cofounder of the Innocence Project, which is housed at Cardozo. “Spreading this type of knowledge is essential in our goal of decreasing the numbers of those wrongfully imprisoned.”
The idea is that the public defenders who attended the gathering at Cardozo will serve as resources for colleagues back home. The by-invitation-only program targeted supervisors and “thought leaders,” Scheck said.
For six days, participants heard from experts on topics including the contamination of DNA samples by labs; litigation of false-confession cases; and the latest findings on eyewitness memory and identification. They also focused on digital evidence, including cellphone records, and fingerprinting.
Scheck hopes the college will become an annual program, but even more important than educating prosecutors and public defenders is getting judges up to speed, he said.
“I’m hopeful that we’ll soon be able to hold a national college on this stuff for judges, who desperately need a better understanding of the science,” Scheck said. “This is an area that’s exploding and we’re all just trying to catch up.”
Erie County District Attorney Frank Sedita III, the newly installed president of the District Attorneys Association of State of New York, said genetic science as well as technology has dramatically altered the criminal playing field. He said larger district attorney offices, such as his, offer continuing legal education programs, and courses offered through the New York Prosecutors Training Institute (NYPTI) provide scientific primers.
“I learned a lot about DNA from two sources, the director of the Erie County laboratory, who tutored me and senior ADAs in the office, and a great course NYPTI ran at West Point where they brought in some of the best scientists in the country,” Sedita said. “It is not only biochemistry, but also statistical. You need to understand what the statistics mean and don’t mean. We heard from population geneticists and people like that.”
Sedita said emerging technology is raising a new challenge for the justice system and prosecutors striving to keep up with scientific advances
“What is becoming to me the first cousin to DNA are all then electronic things now available, such as communications and cell tower records and video surveillance,” Sedita said. “It is scientific evidence. We tend to think of forensic evidence as DNA and fingerprints, but there are other things out there that we are seeing in the digital world.”
The prosecutor in Buffalo said science and technology in the criminal courtroom has the potential to greatly enhance the twin aims of the criminal justice system—exonerating the innocent and convicting the guilty—but only if lawyers and judges have at least a working knowledge of those developments and their practical application.
In Manhattan, prosecutors receive in-house training on DNA from the lab experts from the Office of the Chief Medical Examiner. They rely on the New York City Police Department for information on latent fingerprints and outside social science experts and psychologists for insight into eyewitness identifications and confessions. Additionally, prosecutors often attend outside programs offered by NYPTI and other organizations, according to the office.
“There is no doubt that the use of forensic science is critically important for all sides of the criminal justice system—for convicting the guilty, exonerating the innocent, and obtaining justice for victims,” said Manhattan District Attorney Cyrus Vance Jr. “My office is firmly committed to training our prosecutors and investigators on best practices and procedures, including scientific and technological developments, through regular specialized training. Our goal is to understand the science, what it means in the context of each case, state the significance of results, make sure that statistics are used accurately, and present forensics evidence in a way that juries will understand it.”
Schenectady County District Attorney Robert Carney said NYPTI routinely includes valuable science courses in its summer curriculum.
“Scientific evidence is available in far more cases than it used to be, especially as DNA testing, with mitochondrial DNA and low-copy DNA, becomes more sophisticated,” he said.