By Judge Susan A. Ehrlich, Arizona Court
of Appeals (ret.); J.D., LL.M. (biotechnology & genomics)
Law and science are linked in a quote
from the 18th-century German philosopher Immanuel Kant:
Two things fill my mind with ever-new and
increasing wonder and awe the more often and persistently I reflect upon
them: the starry heaven above me and the moral law within me. I
see them before me and unite them immediately with the consciousness of my
existence.
Critique of
Practical Reason (1788).
Indeed, Kant sought to express how
both the laws of morality and the laws of nature are founded in human reason.
He distinguished between them, but he also insisted that the two must be
compatible and therefore bridged because each is the product of our knowledge
and experiences. Critique of Judgment (1790).
Judges are among those
bridge-builders. Many legal issues confronting the courts entail a
consideration of the significant and swift scientific developments that
implicate private and governmental responsibilities. Not infrequently, our
mutual economic prosperity, health, safety and security rely on the resolution
of disputes brought to judicial venues that depend on credible scientific
information. The wise resolution of those disputes matters not only to the
litigants but also to the public that relies on a trustworthy application of
legal principles.
To push the bridge analogy a bit
further, judges not only build the bridges, they also control access to the
bridges. In Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579
(1993), the United States Supreme Court used the word “gatekeepers” in charging
trial judges with the responsibility of determining what scientific, technical
and other such specialized testimony is valid and helpful to the trier-of-fact,
and, therefore, admissible as such. See also Kumho Tire Co. v. Carmichael,
526 U.S. 137 (1999); General Electric Co. v. Joiner, 522 U.S. 136
(1997). The Court in Daubert, Kumho Tire and Joiner set
forth a non-exclusive list for a trial judge to use to assess the reliability
of the proposed expert testimony, among which factors are:
- whether the
expert’s theory or technique has been tested or whether it is no more than a
subjective approach that cannot be evaluated for its reliability;
- whether
the theory or technique has been subject to peer review and publication;
- whether the
theory or technique has been generally accepted by the expert’s scientific or
technical community;
- whether the
subject-matter of the testimony comes from research conducted independently of
the litigation or from research conducted for the purpose of the litigation;
and
- whether
the field of claimed expertise is one known to reach reliable results.
The Court emphasized that the “focus, of course, must be
solely on principles and methodology, not on the conclusions they generate.”
Thus, when an expert claims to be utilizing an appropriate theory or technique
but nonetheless reaches a conclusion that other experts in the same theory or
technique would not reach, it may be concluded that the expert did not properly
apply the theory or technique.
The judicial role is not one of being a scientific
arbiter. Nonetheless, the resolution of a legal dispute may necessitate the
resolution of scientific uncertainties by a non-scientist judge as well as lay
jurors in some cases and tribunals. The case then is presented in an
adversarial setting that itself shapes the presentation of the science, a
context made the more problematic because the very languages of law and science
can be at odds given the natures of their disparate means of and reasons for
inquiry. As Justice Harry Blackmun wrote in Daubert, “there are
important differences between the quest for the truth in the courtroom and the
quest for truth in the laboratory.”
To be fair, the judgment must reflect such sound science
as exists at that time and in the context of the particular litigation.
Scientific certainty will not be found, of course, because the very nature of
science is that it is subject to continuing and dynamic validation and
exploration. In contrast, a legal dispute must be resolved expeditiously and
with as much certainty as is practicable and just. A judgment cannot be
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