Duke Law Journal
scientific evidence, independent research, judicial research, judicial ethics, Daubert, survey
Evidence | Law | Science and Technology Law
The Supreme Court's Daubert trilogy places judges in the unenviable position of assessing the reliability of often unfamiliar and complex scientific expert testimony. Over the past decade, scholars have therefore explored various ways of helping judges with their new gatekeeping responsibilities. Unfortunately, the two dominant approaches, which focus on doctrinal tests and external assistance mechanisms, have been largely ineffective. This Article advocates for a neglected but important method for improving scientific decision making-independent judicial research. It argues that judges facing unfamiliar and complex scientific admissibility decisions can and should engage in independent library research to better educate themselves about the underlying principles and methods. Independent research, however, is controversial. A survey of state appellate judges shows sharp divisions on the issue, and at the same time, the rules governing independent research are astonishingly unclear. The Article responds to the likely objections some judges have to independent research and also offers a way of interpreting the existing laws to permit the practice. Finally, the Article assesses independent research's chances for success as a method of scientific evidence reform. Based on the survey results, it concludes that a substantial number of judges will indeed take up the mantle of independent research. An equally substantial portion will likely resist, however, raising deeper issues about the importance of uniformity in judicial practice.
Edward K. Cheng,
Independent Judicial Research in the "Daubert" Age, 56 Duke Law Journal. 1263
Available at: https://scholarship.law.vanderbilt.edu/faculty-publications/882