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In Chambers

| Fall 2016 7


pellate judges have the time to conduct independent

research—time that trial judges often lack.

Additionally, appellate research permits the law to

change with the scientific times. Suppose a trial judge

conducts independent research and determines that, at

the time of the trial, the science at issue in the case is

valid.Three months after trial, a new study is released

demonstrating the obvious and fatal flaws in the sci-

ence. On appeal, the appellate court should be per-

mitted to conduct independent research, consider the

new study, and reverse the trial court’s ruling admit-

ting evidence of the science. As the Arizona Supreme

Court has recognized, “[i]t is somewhat incongruous

to call the trial court’s ruling ‘error”’ in this situation.


Nevertheless, as that court noted, neither logic nor

authority supports confining ourselves to a snapshot,

rather than viewing the motion picture, of technologi-

cal advancement. If the result obtained is the product

of invalid scientific theory, there is no good reason to

accept it simply because we were fooled at the incep-

tion of the inquiry.


Need for Uniformity

Finally, and perhaps most importantly, the need for

uniformity of legal rulings is paramount in



ings. Courts have noted that, without a de novo review

of scientific validity, “[c]ases built on similar facts and

offering similar scientific techniques could have widely

disparate results.”


And “[u]nlike many other eviden-

tiary issues, whether the scientific community generally

accepts a methodology or test can transcend a par-

ticular dispute.”


The result of an abuse-of-discretion

review “will undoubtedly be rampant individualized



This will “likely cause increased un-

certainty among lawyers regarding the admissibility of

expert testimony.”


There are those who would argue that it is unethical

for appellate judges to conduct independent scientific

research. But the American Bar Association’s Model

Code of Judicial Conduct does not prohibit it. Canon

3 of the Model Code states that a judge “shall not ini-

tiate, permit, or consider

ex parte


The Commentary to that Canon provides that a judge

“must not independently investigate facts in a case

and must consider only the evidence presented.” Of

course, this does not in any way prevent a judge from

conducting independent research into the law. Appel-

late judges, routinely and appropriately, research case

law not provided to them by the parties and rely on

that law in disposing of appeals. Researching scientific

technology is analogous to researching case law. It is

not an investigation into the facts; instead, it is research

into the validity of the scientific theory at issue. The

Code does not prevent it.And, as with legal issues, the

court can give the parties the opportunity to respond

before any opinion is issued.

Appellate courts hold all the cards. They can deter-

mine what the proper standard of review is in any case.

By instituting a hybrid standard for


claims, an

appellate court can ensure that independent research

is permissible to evaluate a scientific theory’s validity.

This will take the courts out of Denial and reverse

judgments dependent upon Crackpot testimony. It is a

step worth taking.

Appellate courts lack some critical

tools available at the trial level for

arriving at an accurate determination:

live testimony and cross-examination.”