| Fall 2016 5
Appellate Courts Should Resist the Temptation to Conduct
Their Own Independent Research on Scientific Issues
By Presiding Judge Sharon Keller,
Mr. Donald Cimics
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.
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
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.”
Appellate courts are
not generally in the business of making factual determina-
tions; doing so brings them into unfamiliar territory.
course, appellate courts are in the business of evaluating
the evidence presented in a trial record, but independent
research goes beyond reviewing materials submitted.
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.
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.
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”
tion. The trial judge himself may participate in the process
by asking questions of the live witnesses.
(continued on page 8)
Judge Sharon Keller