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4

In Chambers

| Fall 2016

Independent Research at the

Appellate Court Level:

AnArgument For andAgainst

T

he scene is a courtroom in the State of De-

nial.The defendant, charged with murder, testi-

fies to his innocence, claiming he was across

town at the time of the crime.There being no

eyewitnesses and no physical evidence linking the de-

fendant to the victim, the State puts forth its scientific

expert. Dr. Crackpot is an “auralist.” Simply by being in

the same room with someone, the doctor claims to

read the person’s “aura” and determine where he was

on a specific date. The defense objects, arguing that

this science is not valid, but the State has an article

from Weird Science Magazine detailing the theories,

and the defense has nothing to refute it. The trial judge admits the evidence,

deciding that any doubts about it go to the weight of the evidence rather than its

admissibility. Dr. Crackpot testifies that the defendant was at the crime scene at

the time of the murder, and the jury convicts.

The defendant appeals, arguing that “auralism” is junk science. But the parties

offer no additional authority, believing they are limited by what was presented at

trial.The appellate court, reviewing for an abuse of discretion, finds no error, since

there is nothing in the record to indicate that the science is invalid.

Yet the science is junk.There is no such thing as an “auralist.” Nobody can cred-

ibly “read” a person’s “aura” and determine where they were on any given day.

The scientific journals are replete with articles condemning the science, and Dr.

Crackpot himself has been proven to be a fraud. Nevertheless, the defendant goes

to prison for a crime he did not commit, and the law in Denial is that auralism is

valid.

POINT

Trial and appellate courts face many challenges when determining the propriety of independent research. The

following articles present opposing views from two judges on Texas’s highest criminal court, Judge Michael Ke-

asler and Presiding Judge Sharon Keller, regarding independent research by appellate judges. While the articles

were originally written in 2006 and appeared in Judicature

1

, the issue gained national attention just last year

when Seventh Circuit Court Judge Richard Posner issued the majority opinion in Rowe v. Gibson

2

discussing the

independent medical research he conducted in the case. The law on this issue is still very much unsettled with

no definitive resolution to the issue, making the arguments that follow just as relevant today as they were in

2006. ~ Editor

Appellate Courts Must Conduct Independent Research

of

Daubert

Issues to Discover “Junk Science”

By Judge Michael Keasler,

3

Ms. Cathy Cramer

4

(continued on page 6)

Judge Michael Keasler