Judicial Gatekeeping

The improper bending of scientific opinion by outside influences has been a concern of scholars and commentators for decades. The interference of outside influences with scientific analysis pushed Arthur Kantrowitz in 1967 to propose a procedure for making scientific assessment by non-scientists more objective. The perception of increasing partisan influence in the mid-1970’s led to a vigorous public debate of the Kantrowitz proposal. A critical question of that debate is equally important for the current judicial system: how long will we tolerate the partisan exploitation of scientific uncertainty?

This Article reviews Kantrowitz’s proposal, analyzes its criticisms, and discusses how it ultimately failed to change scientific evaluation methodology. After assessing legal changes that have occurred since Kantrowitz’s proposal, this Article proposes Congress should create a centralized Court of Scientific Jurisdiction to handle complex science and technology cases.

Ultimately, this Article shows that by incorporating expertise into the judiciary, the Court of Scientific Jurisdiction could objectively assess scientific and technological evidence, resulting in more reliable, predictable, and scientifically valid outcomes, without sacrificing due process and fairness.

Since Daubert, courts have faced difficulty with screening cutting-edge scientific evidence for relevance and reliability under Federal Rule of Evidence 702. In a series of cases following Daubert, courts faced the challenge of particularly complex epidemiologic studies. In addition to inconsistently handling the epidemiologic evidence in their Daubert reviews, the judicial analysis of this science exposed other weaknesses of the Daubert system.

Weaknesses of the Daubert regime include: weak judicial training in scientific principles and statistical information, oversimplification with bright line tests, outlier enhancement of experts outside the mainstream of their field, and the incompatibility of the judicial procedure with science. Each identified issue presents a reason why a judge may inconsistently or inaccurately evaluate difficult scientific principles.

To address these identified weaknesses, this article seeks modifications to the current system. One way to bring more science back into the courthouse, or to the judge’s chambers, is to permit the appointment of a science consultant under a modified Federal Rule of Evidence 706. For an even smaller subset of more complicated cases, advanced science procedures are needed. A science panel approach, using a modified arbitration panel format, or a centralized court of scientific jurisdiction would offer significant advantages to the current Daubert system. Other discrete individual reforms solve other weaknesses in current Daubert analysis.

By critically examining the breakdown of Daubert in the face of epidemiologic risk evidence, evaluating the nature of the weaknesses in the system, and creating reforms structured to respond to those concerns, we can modify the current Daubert system to allow judges to more consistently, accurately and efficiently handle the most complex, cutting-edge science presented in litigation.

Daubert and its progeny may have given judges clear substantive standards for deciding challenges to expert reliability, and great discretion to do so, but the effect of those changes has not been entirely clear. In the decade after Daubert, a few studies used empirical data to analyze the changes Daubert had made, in deciding how and why judges decide the way they do. But since those studies, there has been little analysis of the issue.

This survey is intended to fill the gap, by exploring how judges actually make their reliability determinations in court. By asking state trial court judges, we can see the frequency with which such motions arise, what substantive factors are most helpful in deciding the motion, and what procedures get used. We can also measure whether, considering the state of the law, judges are comfortable with their role in deciding expert reliability, or in limiting expert testimony due to a reliability challenge.

In addition to that data, this survey will also begin to empirically test an issue raised by many commentators: whether gatekeeping for expert reliability has become a type of sufficiency-of-the-evidence challenge akin to summary judgment. Asking judges questions about both motions, together, helps begin to explore that relationship on an empirical level.

By measuring the actual practices of state court judges, this survey provides actual data on Daubert gatekeeping, the tools used and not used by the judiciary to that end, and the connection of reliability analyses to summary judgment.

While the Daubert case and its progeny provided detailed guidance to judges on the substantive standard for expert gatekeeping, the court spent little time explaining the procedures to use to achieve that gatekeeping review. Justice Breyer’s concurrence in Joiner offered some suggestions on what procedures to use. Since Daubert in 1993, only a few studies have explored the methods judges actually use to perform their gatekeeping task. While they consistently find that judges see their role as more active since Daubert, they are less than complete on procedures of advanced factfinding. They also rely on surveys over a decade old.

This Study offers new data to expand upon and update prior research in the area. Relying on survey responses of state court judges in the Midwestern United States, this Study explores how judges use advanced factfinding tools of the Rules of Evidence in their courtrooms. Some results are consistent with prior studies, particularly the responses on frequency of use of judicial questioning from the bench and appointment of independent experts. Yet by exploring the judicial responses across a variety of characteristics, some new and interesting results arise. Finally, the study provides the only post-Daubert data on the reasons why judges are reluctant to appoint independent experts under Rule 706. Those data contrast with prior studies in the area.

By measuring the actual practices of state court judges, this Study explores the methods Justice Breyer suggested judges use in their Daubert gatekeeping, what tools are used and not used by the judiciary, and whether the aspirational goals of the Rules of Evidence match reality in courtrooms today.