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In Chambers

| Fall 2016 5

COUNTERPOINT

Appellate Courts Should Resist the Temptation to Conduct

Their Own Independent Research on Scientific Issues

By Presiding Judge Sharon Keller,

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Mr. Donald Cimics

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W

hen science has the potential to affect nearly every type of

case in the judicial system, and where access to informa-

tion is greater than ever before, courts increasingly confront

the question of whether they should conduct independent

research into the reliability of proffered scientific theories and tech-

niques. In this article, I focus on the appellate perspective. My thesis is

simple: regardless of what trial courts may do, appellate courts should

resist the temptation to conduct their own independent research of

the scientific literature.

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Three reasons for this are apparent. First, gathering scientific litera-

ture on a subject is essentially a fact-finding mission—a task alien to

appellate decision making. Second, appellate courts lack critical tools

available at the trial level for determining truth and for assessing the cred-

ibility and reliability of evidence. Finally, reasonable alternatives to independent research exist.

Appellate Court’s Role

Traditionally, trial courts are assigned the role of finding

facts.

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Even when the evidence before a trial judge consists

solely of documents, the trial judge is still generally entitled

to deference as the factfinder because “with experience in

fulfilling that role comes expertise.”

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Appellate courts are

not generally in the business of making factual determina-

tions; doing so brings them into unfamiliar territory.

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Of

course, appellate courts are in the business of evaluating

the evidence presented in a trial record, but independent

research goes beyond reviewing materials submitted.

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No

matter how careful the investigation, there is always a risk

that the appellate court will mistakenly rely upon spurious

materials, or that the research will fail to uncover sources

that are crucial to determining the reliability of the scientific

theory or technique.

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Critical Trial-Level Tools

Appellate courts lack some critical tools available at the

trial level for arriving at an accurate determination: live testi-

mony and cross-examination. Experts practicing in the field

may have knowledge and experience beyond what is reflect-

ed in the available scientific literature.

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And adverse parties

can test the credibility and reliability of proffered literature

by subjecting the expert witness to “the greatest legal engine

ever invented for the discovery of truth”

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—cross-examina-

tion. The trial judge himself may participate in the process

by asking questions of the live witnesses.

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However, these

(continued on page 8)

Judge Sharon Keller