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Are Science Guides for Judges a Good Idea?

Nov 28th, 2017 OWI Are Science Guides for Judges a Good Idea?

The BBC recently reported that judges in the United Kingdom will be receiving guides to help them deal with scientific evidence in the courtroom.  Feedback from the judges has been positive, and the first science primers will address things like DNA and fingerprint evidence, as well as computer programs that (claim to) allow the identification of suspects from the manner of their walk.  While there is no question that judges could benefit from an education in science, are these primers a good idea?

On first blush, the answer seems to be yes.  The primers are said to explain complex scientific concepts simply and without jargon so that judges can understand the legal significance of the science and apply it to the case before them.  They are written by the “foremost experts” in the topics covered, including Nobel Prize-winning scientists.  According to the BBC:

The emphasis nowadays is for courts to be more proactive to actually challenge the prosecution for example and say ‘why is this report admissible? How is it going to help you? Is it really the right report for the issues in this case?

From the perspective of the defense attorney, anything that helps judges challenge the scientific evidence presented by the prosecution is a good thing.  The fear is that the reality will otherwise; these primers will help prosecutors gain convictions, a fear that will only be realized if history repeats itself.

As it stands in the United States, much of the education judges receive relative to scientific evidence is from the people who are in favor of and who benefit from its admission.  For example, in Michigan, judges will receive training in the DataMaster breath test from the State Police, and training on other aspects of a drunk driving investigation from PAAM (prosecuting attorney association of Michigan).  This training is hardly objective, meaning the judiciary only receives on side of the argument – the side favoring the prosecution.  Again, history has shown that where the government is involved politics prevail and the science presented by the “experts” is anything but objective.

If it were possible to have the judiciary educated relative to both sides of the argument, for example, for judges to learn both when breath tests are accurate and when they are not, then such primers might have some validity.  It’s unlikely for example, that such primers would include an explanation of how the use of hand sanitizers can cause false results in breath test cases. Instead, the primers would likely be written by the scientific “experts” who give unwavering support to the accuracy, reliability, and precision of infrared breath test measuring devices.

Then there is the additional problem of determining what is and is not settled science.  Is it appropriate to give deference to the opinion of a scientist because she has earned a Nobel Prize?  Should judges assume that what he says is the final word on a subject?

A recent article appearing in Forbes suggests that “when it comes to science, proving anything is an impossibility.”  While this seems like a sweeping and uninformed opinion, the opposite is closer to the truth. Which begs the question, who decides what is settled science and therefore the truth of what is published in these primers.  There is no doubt that the scientists who write them are given unwarranted power to influence the outcome of many thousands of cases all around the county.  Cases where scientific evidence could be the difference between a guilty verdict and an acquittal, meaning in some cases literally, the difference between life and death.

Yes, there is little doubt judges would benefit from an education in science.  Determining the content of that education, however, is much more difficult than might be presumed.