Black Robes, White Coats: The Puzzle of Judicial Policymaking and Scientific Evidence

Introduction

1 This book is about a particular interaction between two very different creatures: judges and scientists. These professions outfit themselves in special attire symbolizing the nature of their work. Judges are in the business of processing defendants , using wisdom and legal expertise. The black robe of the judge represents the neutrality and authority requisite for this particular public service. By contrast , scientists are in the business of developing and harnessing the knowledge of how the world works. The white coat of the scientist symbolizes precision and clinical sterility. The precision and clinical sterility of the scientific reputation provides legitimacy to the kind of knowledge arising from a scientific understanding of natural and social phenomena. The interaction of these professions occurs because the white coats often develop and harness knowledge that is very useful to the black robes. The black robes, however, are constrained by political wisdom and legal expectations when they are introduced to a new product from the white coats. They cannot accept every novel scientific advancement as legally permissible in a court of law. Rather, they are required to determine the prudence and acceptability of harnessing a particular science for legal purposes. The judicial decision to admit or deny a particular science to be included in a legal proceeding is commonly referred to as a gatekeeping decision. Gatekeeping decisions about scientific knowledge abound in everyday judicial process, and the most important gatekeeping decisions are statewide policy decisions by state supreme courts. State supreme courts must decide if novel scientific evidence meets the jurisdictional standard for admissibility in order to certify it for inclusion in a judicial proceeding. Forensic DNA and rape trauma syndrome are examples of scientific knowledge that may arise in judicial proceedings. Two examples of real-world cases from the Supreme Court of Arizona and the Supreme Court of Kansas provide a picture of the way these scientific policy questions are embedded in criminal proceedings. In these two cases, the legal standard for admissibility requires that the science be “found to be generally accepted as reliable in the relevant scientific community” (U.S. v. Frye [1923]). Introduction
The first example of judicial gatekeeping policy making is from a case arising in Arizona. In 1990 Richard Bible was tried and convicted of first-degree murder. The prosecution successfully introduced evidence of DNA on the defendant’s shirt that matched the victim’s. The lab had concluded the chances were one in sixty million that the blood was not the victim’s. Richard Bible appealed the introduction of this evidence as unreliable. In Arizona v. Bible, 858 P.2d 1152 (1993), after extensive discussion and investigation of the reliability of DNA evidence and match statistics, the Supreme Court of Arizona concluded that the trial court erred in admitting DNA probability testimony, as the evidence did not meet the criteria of general acceptance by the scientific community. This case and decision by the Supreme Court of Arizona had the effect of creating DNA admissibility policy for all criminal courts in the state of Arizona. A second example of judicial gatekeeping policy making is from a case arising in Kansas. In 1980 Elmore Marks Jr. was convicted of raping a woman he met in a club and later enticed to go to a friend’s house.At issue was whether the ensuing sexual encounter was consensual. The prosecution introduced expert-witness testimony that the victim was suffering from rape trauma syndrome as evidence that a forcible assault had occurred. Elmore Marks Jr. appealed the introduction of syndrome evidence as unreliable. In Kansas v. Marks, 647 P.2d 1292 (1982), the Supreme Court of Kansas upheld the introduction of rape trauma syndrome testimony as“detectable and reliable as evidence”that a rape occurred (654). This had the effect of setting a statewide policy for the admissibility of rape trauma syndrome testimony. As these brief examples illustrate, the black robes are confronted with the knowledge of the white coats and called on to make a judgment about the validity and reliability of that knowledge in terms of statewide judicial policy. It is easy to understand why this decision-making capacity could be a source of considerable controversy. Judges are not scientists, and their decisions have a very real effect on judicial winners and losers, especially in terms of criminal prosecution. In the examples above, the Arizona case had the effect of shutting down DNA prosecutions until a later state supreme court revisited...