New Standard for Scientific Evidence – The Mob

A few years ago, a law student published a Note that argued for the dismantling of judicial gatekeeping.  Note, “Admitting Doubt: A New Standards for Scientific Evidence,” 123 Harvard Law Review 2021 (2010).  The anonymous Harvard law student asserted that juries are at least as good, if not better, at handling technical questions than are “gatekeeping” federal trial judges. The empirical evidence for such a suggestion is slim, and ignores the geographic variability in jury pools.

To be sure, some jurors have much greater scientific and mathematical aptitude than some judges, but the law student’s run at Rule 702 ignores some important institutional differences between judges and juries, including that judicial errors are subject to scrutiny and review, and public comment based upon written judicial opinions. Most judges have 20 years of schooling and 10 years of job experience, which should account for some superiority.

Misplaced Sovereignty

Another student this year has published a much more sophisticated version of the Harvard student’s Note, an antic proposal with a similar policy agenda that would overthrow the regime of judicial scrutiny and gatekeeping of expert witness opinion testimony. Krista M. Pikus, “We the People: Juries, Not Judges, Should be the Gatekeepers of Expert Evidence,” 90 Notre Dame L. Rev. 453 (2014). This more recent publication, while conceding that judges may be no better than juries at evaluating scientific evidence, asserts that jury involvement is required by a political commitment to popular sovereignty. Ms. Pikus begins with the simplistic notion that:

“[o]ur system of government is based on the idea that the people are sovereign.”

Id. at 470. Since juries are made up of people, jury determinations are required to implement popular sovereignty.

This notion of sovereignty is really quite foreign to our Constitution and our system of government. “We, the People” generally do not make laws or apply them, with the exception of grand and petit jury factual determinations. The vast legislative and decision making processes are entrusted to Congress, the Executive, and the ever-expanding system of administrative agencies. The Constitution was indeed motivated to prevent governmental tyranny, but mob rule was not an acceptable alternative. For the founders, juries were a bulwark of liberty, and a shield against an overbearing Crown. Jurors were white men who owned property.

Pikus argues that judges somehow lack the political authority to serve as fact finders because they are not elected, but in some states judges are elected, and in other states and in the federal system, judges are appointed and confirmed by elected officials. Juries are, of course, not elected, and with many jurisdictions permitting juries of six persons or fewer, juries are hardly representative of the “popular sovereign.” The systematic exclusion of intelligent and well-educated jurors by plaintiffs’ counsel, along with the aversion to jury service by self-employed and busy citizens, helps ensure that juries fail to represent a fair cross-section of the population. Curiously, Pikus asserts that the “right to a trial by one’s peers is an integral part of our legal system,” but the peerage concept is nowhere in the Constitution. If it were, defendants in complicated tort cases might well have a right to juries composed of scientists or engineers.

The Right to Trial by Jury

There is, of course, a federal constitutional right to trial by jury, guaranteed by the Seventh Amendment:

“In Suits at common law … the right of trial by jury shall be preserved, and no fact tried by a jury shall be otherwise reexamined in any Court of the United States, than according to the rules of the common law.”

A strict textualist might hold that federal courts could dispense with juries in cases brought under statutory tort legislation, such as the New Jersey Products Liability Act, or for claims or defenses that were not available at the time the Seventh Amendment was enacted. Even the textualist might hold that the change in complexity of fact-finding endeavors, over two centuries, might mean that both the language and the spirit of the Seventh Amendment point away from maintaining the jury in cases of sufficient complexity.

Judges versus Juries

The fact is that judges and juries can, and do, act tyrannically, in deciding factual issues, including scientific and technical issues. Ms. Pikus would push the entire responsibility for ensuring accuracy in scientific fact finding to the least reviewable entity, the petit jury. Juries can ignore facts, decide emotively or irrationally, without fear of personal scrutiny or criticism. Pikus worries that judges “insert their policy opinions into their decisions,” which they have been known to do, but she fails to explain why we should tolerate the same from unelected, unreviewable juries. Id. at 472.

Inconsistently, Pikus acknowledges that “many can agree that some cases might be better suited for a judge instead of a jury,” such as “patent, bankruptcy, or tax” cases that “typically require additional expertise.” Id. at 471 & n. 185. To this list, we could add family law, probate, and equity matters, but the real question is what is it about a tax case that makes it more intractable to a jury than a products case. State power is much more likely to be abused or at issue in a tax case than in a modern products liability case, with a greater need for a “bulwark of liberty”. And the products liability case is much more likely to require scientific and technical expertise than a tax case.

The law of evidence, in federal and in most state courts, permits expert witnesses to present conclusory opinions, without having to account for the methodological correctness of their relied-upon studies, data, and analyses. Jurors, who are poorly paid, and pulled away from their occupations and professions, do not have the aptitude, patience, time, or interest to explore the full range of inferences and analyses performed by expert witnesses. Without some form of gatekeeping, trial outcomes are reduced to juror assessment of weak, inaccurate proxies for scientific determinations.

Pikus claims that juries, and only juries, should assess the reliability of an expert witness’s testimony. Id. at 455. As incompetent as some judges may be in adjudicating scientific issues, their errors are on display for all to see, whereas the jury’s determinations are opaque and devoid of public explanation. Judges can be singled out for technical competency, with appropriate case assignments, and they can be required to participate in professional legal education, including training in statistics, epidemiology, toxicology, genetics, and other subjects. It is difficult to imagine a world in which the jurors are sent home with the Reference Manual on Scientific Evidence, before being allowed to sit on a case. Nor is it feasible to have lay jurors serve on an extended trial that includes a close assessment of the expert witnesses’ opinions, as well as all the facts and data underlying those opinions.

Pikus criticizes the so-called “Daubert” regime as a manifestation of judicial activism, but she ignores that Daubert has been subsumed into an Act of Congress, in the form of a revised and expanded Federal Rules of Evidence.

In the end, this Note, like so much of the anti-Daubert law review literature is a complaint against removing popular, political, and emotive fact finding from technical and scientific issues in litigation. To the critics, science has no criteria of validity which the law is bound to respect. And yet, as John Adams argued before the Revolution:

“Facts are stubborn things; and whatever may be our wishes, our inclinations, or the dictates of our passion, they cannot alter the state of facts and evidence[1].”

Due process requires more than the enemies of Daubert would allow.

[1] John Adams, “Argument in Defense of the Soldiers in the Boston Massacre Trials” (Dec. 1770)

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