Title: The Curious Appellate Judge: Ethical Limits on Independent Research
Abstract: I. INTRODUCTION A. Temptation Appellate judges in the twenty-first century find themselves in a world where litigation - both civil and criminal - involves a vast array of complex and technical factual disputes. These lawsuits, in turn, may cause judges to seek a greater level of expertise in order to deal competently with the evidence that will be relevant to those disputes.1 Courts are asked to decide questions such as: whether medicine can eliminate the risk of dying in severe pain; whether psychologists can predict future dangerousness; whether punishments deter crime; whether building projects threaten wildlife; and whether exposure to various chemicals creates a risk of public injuries or death.2 An appellate court, ordinarily bound by a case's trial court record, might want information outside the record because an issue is very difficult, or because the record is inadequate, especially if one party had far superior resources leading to a lopsided presentation, or because technical knowledge has evolved since the time of trial. At the same time, advances in communication technology have brought the world's library to the courthouse, requiring no onerous trips across town or index searches but only the click of a mouse. When judges feel the need for additional information, the easy availability of the Internet is a powerful temptation. This combination of felt need and ready access has turned a oncemarginal concern into a dilemma that affects courts and litigants daily. The problem of judicial research has always been with us, lurking in the margins, and yet we do not have a workable framework for discerning when it is and is not permissible. We can no longer comprehensively fail to engage this question, because it is now taking on a central importance to proper judicial decisionmaking in an increasing number of cases. Consider the following fictional but typical situation: Judge Felix was a member of a three-judge panel of an intermediate appellate court. The panel heard the appeal of a criminal matter involving an assault by a group of young men on another young man. The defendant denied that he had committed the crime, and the circumstantial evidence against him included testimony by a police officer that the defendant and his friends had been seen leaving a movie theater one block from the crime scene just seconds before the crime occurred. In addition, the defendant sought to introduce into evidence a brain scan done on the defendant. The defense alleged that the defendant had a pre-existing head injury which caused the defendant to suffer from thought disruptions and exhibit anti-social behavior. After a hearing at which both sides introduced evidence concerning the reliability and significance of the scan done on the defendant, the trial court refused to admit the evidence, finding that the underlying scientific theory and methodology was not sufficiently reliable to pass muster under Daubert v. Merrell Dow Pharmaceuticals, Inc. The defendant was convicted and appealed. On appeal, the defendant argued that exclusion of the brain scan evidence was both erroneous and prejudicial. The state, based on the trial court record and citing cases from other jurisdictions, argued that the science that supports the interpreted results of scanning is suspect and that other courts that have considered scans have found them not particularly useful. Defendant also challenged the sufficiency of the evidence supporting his conviction. Judge Felix remembered a class that she had attended a year earlier at a conference on science in the courtroom (sponsored by the Foundation for Common Sense, held at a lovely resort in Arizona, and with tuition and expenses for the judge and her spouse underwritten by the American District Attorneys Association), which had materials on brain scanning. Judge Felix went to her syllabus, found the material, and read it. She found some of the material to be inconsistent with the trial record. …
Publication Year: 2008
Publication Date: 2008-10-01
Language: en
Type: article
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Cited By Count: 2
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