How Far Should Judges Go In Researching Science?

In a recent article, Jacqueline Cantwell, who works at the Brooklyn Supreme Court Law Library in the U.S., raises some important issues about how much independent research judges should be allowed to conduct when trying cases involving complex scientific evidence.

The article is entitled Nature vs. Nimmer: Access to Scientific Research Sources for Judges and starts on page 22 of the Winter 2007 newsletter of the State, Court and County Law Libraries Special Interest Section of the American Association of Law Libraries.

As Cantwell writes:

"The nature of our legal process limits the judge’s ability to research. The advocates are supposed to research the facts and criticize each other’s arguments. The jury is supposed to evaluate facts. The judge’s role in a case is to interpret law. The judge should not do independent research. What is considered independent research has been a point of contention, but it is generally agreed that judges may research legislative history or consult a treatise".

Despite different rules, the situation in Canadian courts is likely not very different. The problem is, of course, that many judges are not very familiar with the most up-to-date scientific concepts, which can increase the possibility of wrong decisions, especially in cases with contradictory expert testimony.

In that context, what guidelines, ethical and technical, should judges follow in researching outside of the boundaries of traditional legal literature? Cantwell refers to literature showing that the American judiciary appears divided on how much independent research may be done.

More importantly, in terms of the role of libraries, she writes that:

"None of the authors discuss how court administrations and their libraries could support judicial continuing education in science after a judicial seminar (...) Our library use has changed; it may be that the materials judges need has changed also. Until the question of judicial research is better answered, how much we librarians can assist in developing research portals is unclear. At this point, we do not know what scientific research judges are doing. There is concern that judges may be doing googling research. Google is not evil, but it is not comprehensive or reliable. I would argue that it would be better for the courts to face this dilemma openly. The courts are already providing CLE classes. Court libraries should be working with court administrations to develop in-house research sources on science."

Earlier Library Boy posts on science and the law include:

• Allan Legere Digital Archive - 1st Serial Killer Convicted by DNA Typing (April 24, 2006): "The Gerard V. La Forest Law Library at the University of New Brunswick yesterday launched a digital archive of documents and images related to the crimes, capture and trial of Allan Joseph Legere (...)His trial in 1991 was the first in which the new science of DNA typing was used to obtain a criminal conviction in Canada and was therefore a landmark in Canadian legal history"
• Science and Law Resources (August 21, 2006): "Last week, the Science & Law Blog was launched. In the introductory post, the authors, all law professors, explained that their blog is devoted to 'the single question of how does, and how should, courts and policy makers use the more or less certain findings (or lack of findings) from science when making decisions'."
• Update on Science and Law Resources (August 26, 2006): "A recent article from LLRX.com - It’s Not Rocket Science: Making Sense of Scientific Evidence - explains how common web search engines as well as specialized engines that explore the 'Deep Web' can be used to find material on the reliability of scientific evidence in the legal context."
• Articles on Scientific Evidence in Newest Issue of Judicature (December 5, 2006): "The most recent volume of Judicature, the journal of the American Judicature Society, proposes a series of articles on how courts should deal with issues relating to scientific evidence."