Science in Law
Faigman
Fall 2013
INTRO
I. Dickey-Wicker Amendment
a. Sec. 509 (a) None of the funds made available in this Act may be used for
i. The creation of a human embryo or embryos for research purposes; or
ii. Research in which a human embryo or embryos are destroyed, discarded, or knowingly subjected to risk of injury or death greater than that allowed for research on fetuses in utero
II. Melendez-Diaz v. Massachusetts (June 2009)
a. Question presented: is a state forensic analyst’s laboratory report prepared for use in a criminal prosecution “testimonial” evidence subject to the demands of the Sixth Amendment’s Confrontation Clause?
i. Held: YES. Lab reports constitute affidavits that fall within the “core class of testimonial statements” covered by the Confrontation Clause, so when Melendez-Diaz was not allowed to confront the persons who created the lab reports used in testimony at his trial, his Sixth Amendment right was violated.
1. Doesn’t matter they were not accusatory
2. Shit isn’t nerutal + they are routinely used in prosecution
ii. Reason behind this is that lab reports are subject error and the ppl doing em may not be neutral.
III. Bullcoming v. New Mexico
a. Blood alcohol testing on blood sample after car accident
1. Analyst who did the testing and completed, signed and certified the report was on administrative leave and did not testify; instead, another analyst from the lab who was familiar with the lab’s procedures but who didn’t perform or observe the testing was sent to testify
2. Holding: The accused’s right is to be confronted with the analyst who made the certification, unless that analyst is unavailable at trial, and the accused had an opportunity, pretrial, to cross-examine that particular scientist.
Williams v. Illinois
(1) An out-of-court statement that is both testimonial and offered to prove the truth of the matter asserted may not be admitted unless the declarant is unavailable and the defendant had a prior opportunity to cross-examine the declarant.
(2) “Were the out of court statements used by the forensic witness made for the primary purpose of establishing “past events potentially relevant to later criminal prosecution?” If yes, then valid
(3) When determining whether an out-of-court statement is testimonial, there is no meaningful distinction between factual observations and conclusions requiring skill and judgment
(4) Even if a statement (like a forensic report), does not target a specific individual, the statement may still be testimonial.
(5) The fact that an out-of-court statement (in this case, the forensic report) is not inherently inculpatory does not make it non-testimonial. (CONFLICT with other justices)
(6) The Confrontation Clause is violated only if the testimonial statement is offered to prove the truth of the matters asserted. Crawford.
(7) An out-of-court statement that is disclosed to the fact-finder as the basis for an expert’s opinion is offered for the truth of the matter asserted. (CONFLICT WITH OTHER JUSTICES)
Systematic Challenges to Using Science in Law
· General Challenges to the Law’s Use of Science
a. Availability of Data
i. No data yet
ii. Inherent difficulty in doing research (don’t expect any data soon)
iii. Different time tables
b. Understanding the science
i. Policy-makers not well-trained in science
ii. Fact-finders not always knowledgeable about research methods
c. Integrating science into other information
i. Empirical and normative
ii. Error rates unknown
iii. Limitations of the science (generalizability)
d. Cultural conflicts between law and science
i. Science “progresses,” the law relies on precedent (progress vs. precedent)
ii. Will to power
iii. Different decision rules (no direct translation)
Jurisprudential Origins of Social Science in Law
Early Developments; The Realist Movement pp. 1 – 34
I. Legal Formalism
a. Syllogistic: Major premise, minor premise, conclusion (deductive reasoning)
b. Legal Formalism:
i. Major premise: law consists of a set of natural, self-evident, God-given principles that do not change
ii. Minor premise: the facts of any case can be characterized in self-evidence objective ways
iii. Conclusion: the single, correct decision in any case can be produced by taking the facts and the law and applying deductive logic
c. “Natural” law?
i. “…The essence of natural law… lie[s] in the constant assertion that there are objective moral principles which depend upon the nature of the universe and which can be discovered by reason.”
ii. Is v. ought- Ought (how things ought to be)
1. Thought ought could always be derived from an “is”
d. Lochner v. New York (1905)
i. 3 general principles
1. Freedom of contract is an inviolable right
2. Government can only interfere to serve a “valid police purpose” [public safety, health, morals]
3. Judges must scrutinize legislation carefully to watch out for laws being passed for unconstitutional reasons
e. Oliver Wendell Holmes, Jr.
i. The Common Law (1881):
1. “The life of the law has not been logic: it has been experience.”
2. “…The growth of the law is legislative.”
ii. He believed that judges’ policy prejudices influenced what they did.
iii. Other tools are needed besides logic to understand common law
iv. Believed in the evolution of the law… living constitution of sorts
f. Louis D. Brandeis
i. Muller v. Oregon
1. Prohibited girls and women from working more than 10 hours a day
2. Statute was only subject to rational review
ii. SC says: “…when a question of fact is debated and debatable, and the extent to which a special constitutional limitation goes is affected by the truth in respect to that fact, a widespread and long continued belief concerning it is worthy of consideration. We take judicial cognizance of all matter of general knowledge.”
iii. If Holmes was the 1st legal theorist to say that formalism was on its way out… Brandeis was first practitioner to challenge
iv. Didn’t have to show that they were right, but that it was a rational choice among others
v. Brandeis more willing to vote against the will of the majority if he thought legislation wasn’t keeping with enlightened moral principles
g. Due Process/Equal Protection
i. Levels of Scrutiny
1. Rational basis- requires that the governmental action be “rationally related to a “legitimate” government interest
a. Low hurdle
2. “Intermediate scrutiny”- government action must be substantially related to an important government interest
a. Sex-based classification; time; place or manner restrictions on speech
3. “Strict scrutiny”- requires that the government action be “necessary” and narrowly tailored to further a “compelling” government interest (also the least restrictive means)
a. Fundamental right or suspect class involves
b. Any right court has deemed as fundamental or suspect class (race, national origin in violation of the equal protection clause)
c. Requires that the government action be NECESSARY and NARROWLY TAILORED to further a compelling government interest
II. Sociological Jurisprudence- Roscoe Pound
a. Study “actual social effects” of legal institutions/doctrines
i. Study social effects of the law, not just its social structure
b. When contemplating new legislation, first study the social operation and effects produced by past laws and legislation put into action
c. Study how to make laws effective (“life of the law is in its enforcement”)
d. Study legal history to see what effects the law actually had
i. Studying precedent
e. Give judges wide latitude on individual cases
i. Legal rules should just be general guidelines
f. Make effort more effective in achieving the purposes of law
III. Legal Realism- Karl Llewellyn
a. In “Some realism about realism,” nine “points of departure from formalism”:
i. The law is in flux
ii. Law is a means to social ends and not an end in itself
1. Laws should be examined for their purpose and their effect
iii. Law changes, but society changes even faster, so law needs to keep up
1. Law needs to be examined to make sure it is up to speed
iv. While gathering facts, judges should separate “is” from “ought”—see the world as it empirically IS rather than as they would like it morally to be
v. Legal rules don’t necessarily describe what people actually do in the real world – precepts must be distinguished from practices
vi. Legal rules do not explain court decisions—rather, judges decide and THEN create rules to rationalize decisions
vii. If there are to be “rules,” need more categories to cover more specific factual situations, rather than broad rules that end up with no predictive power
viii. Effects of law trump any logical or rational structure
imony be tested, and has it been adequately tested? )
– (In evaluating this factor, research methodology must be carefully scrutinized)
ii. Error rate
– Applies to the technique being used/applied in a particular case
– Error rate doesn’t say what is and what isn’t acceptable (how much error is too much?)
– There should at least be an attempt by the scientists or experts proffering evidence based on some method to determine what the error rate is
– Supreme Court did not state a specific error rate as being acceptable for admission of evidence
– Barefoot v. Estelle (1983): Predictions of violence are constitutional when introduced at the sentencing phase of capital trials; Yet, Justice White admitted that psychiatric predictions of violence are wrong more often than they are correct (!): “Neither petitioner nor the Association suggests that psychiatrists are always wrong with respect to future dangerousness, only most of the time.”
iii. Peer review and publication
– Should be TRUE peer review, not “peer review” by guilds (forensic journals)
– Court held peer review and publication not a prerequisite for admitting scientific expert testimony, nor does it guarantee admission
– Judges should be cautious about admitting evidence based on research that has not been subject to this kind of rigorous scrutiny
iv. Existence and maintenance of standards controlling the technique’s operation
v. General acceptance
d. Pre-trial hearing outside the presence of a jury-
i. Rule 104(a)- judge has to be convinced by a preponderance of the evidence standard (over 50%)
e. What must be found to be scientifically valid?
i. Justice Blackman’s statement in Daubert: “The inquiry envisioned by Rule 702 is, we emphasize, a flexible one. Its overarching subject is the scientific validity – and thus the evidentiary relevance and reliability – of the principles that underlie a proposed submission. The focus, of course, must be solely on principles and methodology, not on the conclusions that they generate.”
ii. BUT: Methods and Conclusions are Inextricably Connected à Joiner: “[C]onclusions and methodology are not entirely distinct from one another. . . . [N]othing in either Daubert or the Federal Rules of Evidence requires a district court to admit opinion evidence which is connected to existing data only by the ipse dixit of the expert.”
f. Complications
i. The “relevancy test” alternative
1. Some jurisdictions use relevancy test for ALL expert evidence
2. Some jurisdictions use a relevancy test for certain kinds of expert evidence
3. Failure to apply the Frye test b/c the challenged opinion is not based on “novel” science = employing a relevancy test alone.
ii. Relevancy tests operate as no real test at all, and on their own terms they consider the mainstays of evidence doctrine, relevance and the competence of the witness (i.e. qualifications)
V. So is Daubert or Frye more liberal?
a. Courts can manipulate Frye and Daubert to reach the result they prefer.
b. Structuring the rules to accomplish certain results
i. How permissive or restrictive do we want the test to be?
1. Frye-like tests defer to professional fields
a. Which field?
2. Daubert-like tests require judges to assess basic methods and principles of underlying research
a. How careful is the scrutiny?
ii. How should judges carry out their designated responsibility?
1. Relative roles of judges and fact-finder (higher threshold = more active judiciary; lower threshold = more passive/jury sorts through it)
2. There should be some consistency b/w the threshold for expert evidence and what is employed in other evidentiary contexts
