Science Literacy for Judges

Jacquelyn Shaw argues that mandatory science education for judges is long overdue and that it would be advisable to appoint more science-trained judges when possible.
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In 1959, Steven Truscott, a skinny, blond 14-year-old, was wrongfully convicted of murdering his classmate Lynn Harper. Witnesses saw Truscott give Harper a bike ride between 7 and 8 pm one summer evening; her strangled body was found days later. Conviction turned heavily on forensic evidence –stomach contents –suggesting time of death.

The prosecution’s pathologist estimated that death occurred between 7:15-7:45 p.m. The defence’s pathologist countered that it was scientifically impossible — after several days’ decay — to pinpoint time of death with such accuracy. Based significantly (but not exclusively) on the prosecution’s testimony regarding stomach contents, the court was satisfied beyond a reasonable doubt of Truscott’s guilt. It sentenced him to death (later commuted to a life sentence).

Truscott spent ten years behind bars and half a century clearing his name. Key to clearing his name were unreleased prosecution pathology drafts, broadly timing death at midnight following the bike ride, or mid-morning of the next day, instead of the suspiciously narrow estimate presented at trial. Truscott eventually received $6.5 million in government compensation. To this day, the real killer remains unknown.

While it is tempting to dismiss Truscott’s case as a tragic, isolated error, evidence suggests otherwise. Canada has discovered many wrongful convictions, triggering six public inquiries, two of which (i.e., the Morin and Driskell cases) involved significant contributory scientific errors. A pivotal failure in these, as in Truscott’s case, was the court’s inability to meaningfully question and challenge expert scientific testimony.

judgeCanada’s justice system is an ‘adversarial’ one, viewing cross-examination as the primary mechanism of uncovering ‘the truth.’  Yet it is not clear that this result is reliably achieved with scientific truth. As one judge complained: “…the Court …is not configured for getting at the truth of arcane scientific contradictions….Cross-examination is said to be the great engine for getting at the truth, but [not] when the unschooled judge cannot perceive the truth, if he or she ever hears it…” As the Supreme Court of Canada noted in another case, R v D.(D.), experts’ scientific credentials can lead some judges to accept their testimony without necessary scrutiny. Inadequate scrutiny in cross-examination can also stem from judges’ limited awareness of the range of potential problems to look for in assessing expert testimony, especially with novel science.

Had the judge in Truscott’s case possessed the ability to ask probing questions during cross-examination, he could have compared the pathologists’ methods, and critically examined potential error sources, instead of accepting one side’s evidence without such probing. For example, the prosecution pathologist lacked the defence expert’s forensic qualifications, an issue that never arose in cross-examination. Had the implications of this expertise difference been noted by a science-literate judge, it should have negatively affected the weight given to the prosecution’s testimony, raising reasonable doubts as to Truscott’s guilt, and avoiding enormous human and financial costs.

Truscott’s case hints at a serious systemic problem within Canada’s justice system: rarely do judges possess more than a superficial understanding of science. Given the societal dominance of science and technology, judicial scientific unfamiliarity appears to create a significant weakness in our justice system.Not all cases involve science, and errors may be rare, but as Truscott’s case illustrates, the impact of even one error can be great, on individuals and on public trust in the justice system. Many judges are only too aware of these scientific challenges. In a 2008 article, then Supreme Court of Canada Justice Ian Binnie reported in dismay that some judges assess a scientific expert as they would a criminal accused– on demeanour, body language, confidence and reputation– not the substance of the expert’s testimony. Instead, he argued, all parties should have a legitimate expectation that their judge will understand the scientific evidence (on both sides) and factor it into the ultimate decision. He declared: “… however daunting, the task of making our courts more science-friendly is important to sustaining the legitimacy of the courts as dispute resolution mechanisms.”

Getting there, however, is a challenge. Science and law occupy different universes, lacking common principles and language. Confusingly for judges, multiple scientific views may co-exist: a mainstream, accepted opinion; promising emerging theories; older theories still embraced by some; and methodologically flawed ‘junk science’ published somewhere, and thus appearing respectable. Also, to many judges, all ‘scientific studies’ look equivalent, regardless of their independence of, or funding by, industry.

A number of strategies could make our courts more science-literate. These include: recruiting more judges with science backgrounds; employing science advisory bodies; and providing science education for judges.  Yet there are limitations with each.

According to Canada’s National Judicial Institute (NJI), increased recruitment of science-trained judges is not the highest priority, so such judges remain rare. Nor have court science advisory bodies been created. This may reflect concerns wherever judges interact with knowledgeable parties (e.g. expert witnesses, etc.) that judicial decision-making authority not be usurped through undue reliance. Science advisory bodies would need to tread carefully, providing advice on both sides of an issue, to avoid biasing judges and usurping the judicial role. Arguably, the science advisory body role might already be met by the amicus curiae, a body that volunteers or is invited by the court to advise, including potentially on scientific evidence. Yet this more ad hoc approach depends on an appropriate body actually volunteering or being invited, whereas a permanent science advisory body would already be available. What if no group volunteers and a court (perhaps unwisely in a case) sees no need to invite advisors?

In Canada, judicial science seminars are offered by NJI, but have shortcomings. These workshops of a few days’ length every two years, for up to 30 judges, have undergone major improvement in 2013 to encompass not only discussion of discrete scientific topics (as in past years) but now also the scientific method and statistical analysis. This change is significant and needed. Yet there are limitations on how deep an understanding of the scientific method, or science topics, can be imparted in a few days–. It is also unclear, without follow-up, how effective or lasting any impacts may be. More importantly, seminar attendance is entirely voluntary, it being felt that compelling attendance would threaten judicial independence. One might counter that, considering judges’ fiduciary duty to the public interest, simply requiring all judges to possess the same basic ‘tool-kit’ by which to approach scientific legal cases hardly tramples their independence. What could threaten independence, though, might be seminar presenters biasing judicial views, e.g., by providing only certain perspectives, intentionally or not. Cognizant of these risks, NJI aims to select presenters providing balanced perspectives.

Morin’s inquiry concluded that his wrongful conviction was partly: “… rooted in systemic problems…,” including court difficulties in interpreting scientific testimony. Unfortunately, courts’ scientific ‘digestive problems’ seem unlikely to diminish. Over past decades, the frequency, novelty and complexity of scientific testimony in cases have ballooned. Cases such as (US) Daubert (1993), and (Canada’s adoption of Daubert) in R. v Mohan (1994), guide judges in excluding misleading ‘junk science’ from courtrooms, but with reportedly mixed success. Moreover, ironically, these cases have formalized and expanded trial-division judges’ role as untrained scientific adjudicators.

The issue of judicial science literacy has never been more relevant than in modern courtrooms, where effective remedies –such as mandatory science education workshops or appointing science-trained judges– seem long overdue. As noted by one prominent judge: “When one considers the apparent silliness of trial by a judge who is utterly unschooled in the scientific substance of a  … [case], hearing conflicting testimony of so-called experts…one knows that this field cries out for reform…”

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Jacquelyn Shaw is a researcher/writer and NTE alumna with graduate training in both law and medical science.

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