Last week, this column featured an article from Professor Emeritus Edward J. Imwinkelried concerning the “disturbing” prevalence of bad science which has been permitted to come before the fact-finder in American criminal trials. This week’s column features an article exploring potential solutions to that problem. The Harvard Law Review, as part of its Modern Courts Commentary Series, recently published a commentary by William and Mary Law School Professor Allison Orr Larsen entitled Judicial Factfinding in an Age of Rapid Change: Creative Reforms from Abroad.

In her article, Professor Larsen shares Professor Imwinkelried’s concern that courts may be too often depending upon unreliable expert opinion evidence when reaching their decisions. As she explains:

[Courts need] a way to provide expertise when needed, but to ensure that such experts truly merit that label.

The article first suggests that the problem might be addressed by abandoning the adversarial system’s “fetish” for allowing the parties to present competing, potentially biased, expert opinions.  Instead, when a case requires expert advice, courts could rely solely upon a report generated by an impartial panel of highly-qualified experts. As an example, Professor Larsen points to the Dutch non-profit “Panel of Recognized International Market Experts (PRIME).” PRIME was created because:

Following the 2008 financial crisis, financial litigation was increasing steadily, and lawsuits were being brought more globally — no longer just in New York or London. Courts around the world — facing what some called a “tsunami” of financial cases — were reaching different results with very similar facts.

Unlike traditional amicus curiae, which usually participate in litigation because the outcome will have a collateral effect on their interests, an organization like PRIME is designed to maintain its independence. The idea is that such an organization would be comprised of the most qualified experts available, would have no interest in the outcome of the proceedings, and would offer the court unbiased opinion testimony regarding topics within the scope of their scientifically-acquired expertise. Such organizations might lend court proceedings more scientific rigor, and therefore lend their decisions more legitimacy in the eyes of the public.

The second potential solution suggested by Professor Larsen is to further the phenomenon of specialized courts – just as there are currently specialized drug courts, tax courts, juvenile courts, domestic relations courts, and, of late, veterans treatment courts. Such specialization is presumed to allow jurists to become more adept at separating bad science from the good in their field of practice. Even assuming that goal is accomplished, Professor Larsen points out that there is a downside:

Yet the call for specialized courts is not without controversy. In a lecture on the issue, Chief Judge [of the United States Court of Appeals for the Seventh Circuit,] Diane Wood explained the critique: “Generalist judges cannot become technocrats; they cannot hide behind specialized vocabulary and ‘insider’ concerns. The need to explain even the most complex area to the generalist judge (and often to a jury as well) forces the bar to demystify legal doctrine and to make the law comprehensible.” This is a powerful warning against the temptation to specialize and an important reminder about the value of the generalist judge.

Recent reforms addressing military sexual assault have inched closer to the establishment of a separate court-martial system for sexual offense cases. The counsel who try those cases now receive specialized training, victims of sexual assault (unlike other victims) are represented in the proceedings by counsel detailed to them by the government, special rules of evidence apply as regards the admissibility of propensity evidence in sexual offense cases, the ability of command authorities to decline to prosecute is often restrained for certain sexual offense cases, mandatory minimum sentencing exists for certain sexual offense convictions, and the ability of the convening authority to grant clemency or set aside suspect verdicts has been eliminated for almost all sexual offenses. Still, a fully separate system of specialized courts for sexual offense allegations does not yet exist.  Chief Judge Wood’s words might offer a rationale against the creation of such courts in the future.


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