By Kevin Frazier*
INTRODUCTION
“We really don’t know about these things. You know, these are not like the nine greatest experts on the Internet.”[1]
Justice Kagan broke an unspoken rule during oral argument in a case involving complex technological evidence – she acknowledged that judges may lack the requisite knowledge to adjudicate certain cases. This admission should lead to a long overdue conversation about providing judges with the background knowledge necessary to adjudicate cases involving new technology and complex science.
Our adversarial judicial system hinges on parties making the strongest arguments possible and judges understanding the strengths and weaknesses of those arguments. This system breaks down where neither the parties nor the judges possess an accurate and sufficient understanding of the complex evidence in question. Yet, parties are not compelled to offer the most accurate and complete information – their task is instead to present the most compelling evidence. And, many judges have admitted – though less publicly than Justice Kagan – that they lack familiarity with many of the complex scientific and technological topics that will make up a larger share of their respective dockets in the next few years.[2]
The possibility of the “strongest” argument winning the day based on inaccurate, flawed, or outdated scientific or technological evidence is not one the parties nor the public should accept. Judicial decisions based on faulty conceptions of complex topics will further undermine the public’s perception of the courts. The current approach to reducing the odds of such a possibility is woefully inadequate.
Judicial education today is akin to a NASCAR racer teaching a teenager how to fly a plane —more experienced judges informing their junior colleagues about topics neither group knows anything about. What’s astonishing is that this approach is actually an improvement on the historical norm. Until the 1950s, judges avoided any sort of education once they assumed the bench.[3] Nevertheless, it’s time that state court judges receive timely, impartial, and accurate education through the creation of State Court Science Offices (SCSOs).
STATE COURT JUDGES REQUIRE ADDITIONAL JUDICIAL EDUCATION ON SCIENTIFIC AND TECHNOLOGICAL EVIDENCE
Law school and even years of legal practice do not equip judges to deal with the panoply of issues presented in modern disputes. “When lawyers don black robes to become judges, they do not magically acquire all the knowledge, experience, and skills necessary to become excellent judges,” according to Chief Justice Mary Russell of the Supreme Court of Missouri.[4] Consequently, judicial education is “imperative.”[5] In particular, judges must receive education on “the appropriate information to allow [them] to develop the most comprehensive and current understanding of substantive areas of the law, as well as the law of evidence and procedure.”[6]
Chief Justice Russell lists scientific and technological matters as the first area that demands more judicial education.[7] Others have similarly highlighted the importance of scientific and technological knowledge among jurists in an increasingly complex and complicated world.[8] Absent providing judges with an understanding of everything from artificial intelligence to online privacy, Chief Justice Russell warns that judges will “hand down opinions rooted in ignorance.”[9] Professor Edward Cheng shares her concerns. He forecasts that “unfamiliarity with scientific concepts and an inability to assess expert evidence critically substantially increase the chance of erroneous decisions, particularly when judges face conflicting expert witnesses.”[10] In fact, the decision whether to admit scientific and technological evidence may determine the outcome of case.[11] More broadly, courts that fail to follow the best scientific evidence will cause the entire judiciary “intellectual embarrassment.”[12]
Complex evidence places a major burden on state court judges in particular – many of which bear the task of serving as “all-important gatekeepers who are obligated to ensure that only ‘good’ science reaches the jury.”[13] To complete this task, judges must have the requisite knowledge to “critically examine an expert’s methodology and conclusions[.]”[14] State court judges will also have to critically examine and, in some cases, overrule precedent based on erroneous scientific and technological findings.[15]
State court judges are not up to this task.[16] Cheng goes so far as to argue that they are “remarkably ill-positioned” to make decisions regarding complex evidence.[17] Their incompetent analysis of this evidence results from two facts: first, as conveyed by Chief Justice Russell, they lack the background knowledge required to assess specialized information;[18] and, second, they lack the educational resources to make up for that lack of familiarity.[19] The resulting knowledge gap undermines the ability of the judges to “know[] the needs of the people [they] serve, and hav[e] the ability to serve those needs,” as described by Judge Bruce Bohlman of North Dakota.[20]
The current most common approach to equipping the court with the requisite degree of specialized knowledge—presentation by experts selected by the parties–is also insufficient. Perhaps unsurprisingly, judges generally do not trust such experts. A survey conducted by the Federal Judicial Center revealed that federal judges commonly feel that party-appointed experts “abandon objectivity and become advocates for the side that hired them.”[21] Such widespread and significant doubts about the impartiality of expert input means that education on specialized knowledge must come from other sources.[22]
Increasing judicial competency then requires either providing likely candidates for the judiciary (aka law school students) with more technical education or developing more resources for sitting judges to close knowledge gaps as they arise. Other scholars have examined the need for and possibility of including more technical courses in law school. Generally, they agree that law schools offer too few courses in the technical fields that underlie an increasing amount of evidence. However, even if this shortage was corrected, there’s no guaranteeing that law school grads who, possibly decades later, assume the bench will recall any of this content in a way that will assist them in adjudicating a highly complex and technical dispute. Additionally, any requirement for students to take such courses would be overinclusive—though empirical analysis is becoming more widespread across legal practice areas, the provision of educational resources on the topic should likely occur before law school or through other graduate education programs.
So if educating judges on technical issues before they assume the bench is inadequate at best and, more likely, improbable, then judicial education comes from other sources. However, education from “other sources” presents a slew of questions including, but not limited to, who will do the teaching? Who decides the content? How frequently will classes occur? Who will attend those classes? Existing answers to these questions have not resolved the “unfamiliarity” that gave rise to Cheng’s concerns about a dearth of judicial education.
STATE COURT SCIENCE OFFICES CAN ADDRESS INFORMATION GAPS AMONG JUDGES
Current public sources of judicial education, such as the Federal Judiciary Center with respect to federal judges and the State of Missouri’s education programs for its state court judges, generally occur too infrequently to provide judges with adequate technical knowledge.[23] Moreover, these education programs typically do not cover the topics such as scientific and technological evidence.[24] Finally, there’s the issue of capacity. Judges have limited time to attend these programs—let alone keep up to date on the content following the program.[25] And, the programs themselves often educate a small fraction of the judges within a state’s judicial system.[26] State court judges will lack the requisite familiarity with complex scientific and technical matters so long as new approaches to educating them and their clerks go unexplored.
Similar issues are posed by counting on judges to tutor themselves on complex matters. Cheng argues that “independent judicial research,” whereby judges do as any “responsible person” would when faced with an unfamiliar and specialized area—namely, “do research,” “read references books,” and “search the Internet for relevant materials.”[27] This approach would certainly be timely and topical – i.e., the judge would start their research upon the instant case coming before their court, and they would attempt to refine that search only to the issue(s) at hand. Moreover, the researching judge would have the time to conduct a more deliberate and comprehensive inquiry than may be provided at a seminar or through a panel at a conference. Still, independent judicial research poses at least five significant and disqualifying drawbacks.
First, there’s judicial bias.[28] Second, there’s no source of validation as to whether the judge relied on quality sources with relevant and accurate information pertaining to the pertinent questions. One can imagine judges unintentionally relying on sources with biased or flawed information. In fact, parties may respond to such a trend by paying third parties to develop purportedly authoritative and neutral websites meant to solicit judicial attention and reliance. Third, the court again does not retain the benefits of this study. Fourth, independent judicial research may result in judges improperly looking outside the record.[29] And, fifth, professional researchers will do a better job than judges in pulling the requisite information in a timely and accurate manner. In other words, anything a judge can do, an officer of the SCSO could do better. Professional researchers can, for instance, better maintain an auditable record of which sources were considered and why. Additionally, unlike judges constrained by “limited resources for conducting specialized research,”[30] professional researchers would presumably have access to all relevant databases (as well as awareness of those databases).
State Court Science Offices should become the default means of educating the judiciary on scientific and technological matters as they come before the court. In a manner akin to the Congressional Research Service, SCSOs would produce detailed summaries on complex topics at the request of the parties or the judge. A professional researcher within the SCSO would take the lead on responding to such a request and ultimately produce a report that the parties, the public, and the court could consult. These researchers—as public employees within a “think tank”-esque agency—would be impartial, independent, and anonymous.
Unlike independent judicial research and educational content taught by other judges, the professional researchers that make up SCSOs would have the expertise necessary to ensure judges receive only accurate and necessary information. Moreover, reports by SCSOs would avoid other pitfalls associated with the current approach to judicial education—the knowledge and guidance contained in a report would not end with a judge’s tenure; doubts about the quality and impartiality of the research would be diminished relative to testimony from the parties’ expert witnesses; and, the reports could be updated in light of new scientific and technological advances and in response to specific cases.
CONCLUSION
Judges are not experts in every matter that comes before their respective courts. A failure to address this reality will inevitably result in decisions so devoid of scientific and technological rigor that the public will come to doubt the legitimacy of the courts. In fact, remarks such as those by Justice Kagan are already awakening the public to the limits of judicial knowledge. It follows that time is of the essence—state court systems should take the lead in adopting a new approach to judicial education. By creating State Court Science Officers, judges can receive timely, accurate, and impartial information.
* Kevin Frazier will join the Crump College of Law at St. Thomas University as an Assistant Professor starting this Fall. He currently is a clerk on the Montana Supreme Court.
[1] Transcript of Oral Argument at 45, Reynaldo Gonzales, et al. v. Google, ___ U.S. ___ (2023) (No. 21-1333).
[2] See The National Courts and Sciences Institute, Judges’ Forecasts and Preferences for Managing Scientific Evidence in Complex Cases 2020-2030 at 8-9 (Oct. 17, 2020) [hereinafter, “NCSI Survey”]. Though this survey only received responses from 790 judges in 26 states and territories, the findings reinforce other studies that have revealed a shortage of judicial education on scientific and technological questions, as well as a desire by judges for additional education and resources on those topics.
[3] Francis C. Cady & Glenn E. Coe, Education of Judicial Personnel: Coals to Newcastle, 7 CONN. L. REV. 423, 424 (1975); see Robert G. Bone, Judging as Judgment: Tying Judicial Education to Adjudication Theory, 2015 J. Disp. Resol. 129, 130-32 (2015).
[4] Mary Russell, Toward a New Paradigm of Judicial Education, 2015 J. Disp. Resol. 79, 79 (2015).
[5] Id.
[6] Id.
[7] Id. at 84; but see David S. Caudill & Lewis H. LaRue, Why Judges Applying the Daubert Trilogy Need to Know about the Social, Institutional, and Rhetorical–and not Just the Methodological–Aspects of Science, 45 B.C. L. Rev. 1, 23 (2003) (summarizing challenges to the notion that “science” questions can be separated from “non-science” questions—thereby questioning the notion of science- and technology-specific education and judicial resources).
[8] See, e.g., Edward K. Cheng, Independent Judicial Research in the Daubert Age, 56 Duke L.J. 1263, 1265 (2007) (“Scientific and other forms of expert evidence are crucially important to modern litigation.”)
[9] Russell, supra note 4, at 84.
[10] Cheng, supra note 8, at 1300
[11] Id. at 1265.
[12] Editorial, Federal Judges v. Science, N.Y. Times, Dec. 27, 1986, at A22.
[13] Cheng, supra note 8, at 1265 (detailing that many state supreme courts have followed the U.S. Supreme Court’s decision in Daubert v. Merrell Dow Pharmaceuticals, Inc., which assigned that gatekeeping task to federal court judges); see Sophia Gatowski et al., Asking the Gatekeepers: A National Survey of Judges on Judging Expert Evidence in a Post- Daubert World, 25 Law & Hum. Behav. 433 (2001) (finding that state court judges see themselves as active participants in admitting or excluding scientific evidence regardless of whether their state follows Daubert or Frye).
[14] Cheng, supra note 8, at 1265.
[15] Russell, supra note 4, at 84 (providing changes in forensic sciences as an example of how advances in science and technology require that judges reconsider “what had been seen as accepted and trusted evidence.”)
[16] Andrew W. Jurs, Questions from the Bend and Independent Experts: A Study of the Practices of State Court Judges, 74 U. Pitt. L. Rev. 47, 55 n.47 (2012) (collecting from various articles quotes on how judges struggle to deal with complex evidence); see Caudill & LaRue, supra note X, at 19 (opining that judges not only lack an understanding of admissibility frameworks related to complex evidence but also of the “social, institutional, and rhetorical” aspects of science and technology).
[17] Cheng, supra note 8, at 1266.
[18] Russell, supra note 4, at 79.
[19] See Cheng, supra note 8, at 1266.
[20] Bruce Bohlman, Transforming the Judicial System Through Education, in EDUCATION FOR DEVELOPMENT: THE VOICES OF PRACTITIONERS IN THE JUDICIARY, JERITT MONOGRAPH SIX 7 (Charles Claxton & Esther Ochsman eds., 1995).
[21] Molly Treadway Johnson et al., Fed. Judicial Ctr., Expert Testimony in Federal Civil Trials: A Preliminary Analysis 5 (2000).
[22] Such doubts also diminish the likelihood of a judge gleaning the necessary information from the experts simply by questioning them from the bench – a common practice used by federal judges to evaluate complex evidence. See Carol Krafka et al., Judge and Attorney Experiences, Practices, and Concerns Regarding Expert Testimony in Federal Civil Trials, 8 Psychol. Pub. Pol’y & L. 309, 326 (2002) (discussing the percentage of federal judges that use certain techniques when faced with complex evidence). Some state court judges also resort to questioning experts from the bench but such questioning cannot close any existing information gap if judges do not trust such experts from the outset. See Shirley A. Dobbin et al., Federal and State Trial Judges on the Proffer and Presentation of Expert Evidence, 28 Just. Sys. J. 1, 10, 77 (2007) (discussing the percentage of state judges that use certain techniques when faced with complex evidence).
[23] See Russell, supra note 4, at 79 (noting that budget shortfalls have limited Missouri’s ability to fund its own education programs as well as to reimburse judges for attending education programs hosted by other entities).
[24] See, e.g., id. at 79 (describing “developments in the areas of civil law, criminal law, family law, juvenile law, and probate,” as well as “sessions on skills and information,” as the usual curriculum for judicial education in Missouri).
[25] See, e.g., id. (“Our dockets are full and impose real limitations on the time judges can devote to educational opportunities.”)
[26] See, e.g., id. at 84 (disclosing that about 30 judges from Missouri attended one of the premier science and technology education seminars hosted by the Advanced Science and Technology Adjudication Resource (ASTAR) Project. Despite this low number, Chief Justice Russell asserted that such training made the state’s judiciary “one of the most effectively trained judiciaries in the country with respect to complex scientific and technological dockets.”)
[27] Cheng, supra note 8, at 1266.
[28] See Anne E. Mullins, Opportunity in the Age of Alternative Facts, 58 Washburn L. J. 577 (2019).
[29] See George D. Marlow, From Black Robes to White Lab Coats: The Ethical Implications of a Judge’s Sua Sponte, Ex Parte Acquisition of Social and Other Scientific Evidence During the Decision-Making Process, 72 St. John’s L. Rev. 291, 298 (1998).
[30] Cheng, supra note 8, at 1283.
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