Law Tips: Experts and the Ethics of Scientific Evidence from Judge Chezem

Scientific evidence is an expanding and challenging field. The popularity of ICLEF’s recent seminar entitled Admissibility of Scientific Evidence and Expert Testimony points directly to the value of lawyers keeping abreast of this topic. Are you aware of the ethical pitfalls lurking on the path of scientific evidence? Fortunately, our Law Tips blog readers have this opportunity to hear from Hon. Linda Chezem on the duties of the attorney in using scientific evidence. I am privileged to present her counsel for you:

The ethical duties of the attorney in the use of scientific evidence are beyond the obvious duties that apply to any evidence proffered by the attorney. The complexity of science and the general lack of science informed lawyers, judges and juries suggest that the lawyer has to consider how to choose an expert for something more than “junk science”. Assuming the science and the expert who will present the science applicable to the case at hand meet the rules of evidence and the expert’s testimony is admitted into evidence, the hard part lies ahead.

The real challenge is facilitation of the comprehension and application of the testimony favorable to the case. How should the lawyer devise adequate communication strategies so that the science is understandable yet reliable and honest? So what is the attorney’s duty? In a Note titled “Lawyer Competence and Neglect” published in 1991, Laura A. Naide states, “The concern of the legal profession regarding the issues of lawyer neglect and incompetence has grown dramatically in recent years.” Ms. Naide continues, explaining that “The issues of neglect and incompetence are closely inter-related. An incompetent attorney is likely to neglect legal matters because of feelings of inadequacy and anxiety. Courts are more likely to sanction an attorney for neglect than incompetence, however, because incompetence is extremely difficult to prove.” (Naide,L., 5 Geo. J. Legal Ethics 191 1991-1992)

An equal factor in the reluctance to characterize the lack of lawyerly or judicial scientific knowledge as incompetence is that- after all these years- some lawyers remain uncomfortable with science and with Daubert, Joiner, Kumho and the federal and state Rules of Evidence. The forests of trees sacrificed and the billions of little electrons inconvenienced by the academic and lawyerly attempts to explain the requirements for scientific evidence support likelihood of a science fear factor. One explanation for a clear reluctance to openly hold lawyers and judges accountable to understand scientific evidence they use to present to or to decide cases is that some lawyers may see themselves at risk.

The Model Rules and the Indiana Rules of Professional Conduct contain the same language in this section. Rule 1.1 Competence: “A lawyer shall provide competent representation to a client. Competent representation requires the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation.”

Arguably, the phrase “thoroughness and preparation reasonably necessary for the representation” includes the study and effort required to thoroughly understand the scientific issues in the case and the proper vetting of the experts. Not that there are many cases out there that address science testimony as a competency issue, however, a portent may be found in California. A proposed opinion from the California State Bar’s Standing Committee on Professional Responsibility and Conduct states that a lawyer engaged in litigation in which e-discovery is sought has an ethical duty of competence for e-discovery. The California Sate Bar would hold the lawyer responsible to recognize and take appropriate action to protect clients in e-discovery. If the e-discovery challenges presented exceed the lawyer’s current command of e-discovery issues, the lawyer must take one of three courses:

  • Take steps to acquire the necessary skills;
  • Retain technical consultants to provide the required skill set; or
  • Decline the representation.

Could this proposed opinion on the competence and use of e-discovery by a small stretch supply a rationale for competence with science evidence?
Judge Nancy Gertner, a former federal district court judge in Massachusetts, expressed her concern regarding The National Academy of Sciences’ call for change in forensic sciences in a law review commentary. “I am concerned that suggestions that focus on changes within the field of forensic science itself, rather than changes in the larger judicial and adversarial culture in which forensic science operates, are doomed to failure. It is unquestionably important to encourage the creation of a research culture – upgrading forensic science journals, developing scientific standards to guide casework, improving access to data, etc. – as the article does, but I do not believe that these efforts can succeed without parallel changes in courts and in advocacy.” (UCLA Law Review at http://www.uclalawreview.org/pdf/58-3-S.pdf)

Judge Gertner entered an order that was intended to require lawyers and judges to more carefully consider the admission of expert testimony. As she addressed the proper consideration of scientific testimony she stated: “The NAS report suggests a different calculus– that admissibility of such evidence ought not to be presumed; that it has to be carefully examined in each case, and tested in the light of the NAS concerns, the concerns of Daubert/Kumho case law, and Rule 702 of the Federal Rules of Evidence.” (Full order below.)

The real concern is not that the record is devoid of judicial disapproval or concern about the competent use and presentation of scientific evidence; it is that that client pays the costs of bad science in the courts. The many errors found by the Innocence Project in criminal cases call attention to the science testimony failures. Sometime the order on the post-conviction relief will note the ineffective assistance of counsel in the use of the testimony. Usually, there is no disciplinary sanction for incompetence or at least the sanction is couched in terms other than in competent presentation or rebuttal of scientific evidence. There is no comparable Innocence Project, a true facts type project for civil cases. Once the civil case is done, the practical likelihood of any remedy for the client is none.

The solution is not more lawyer discipline but recognition of the need for lawyers and judges to remedy their science aversions. Instead of catching a horse of scientific injustice, the legal profession should not get out of the barn. Science and the need for rules of evidence have come a long way since Frye.

Thank you for stopping in at Law Tips. Let us know if there are any topics, or specific faculty, you would like to see included in the future. I want to express appreciation to Judge Chezem for bringing her valuable knowledge on the ethics of scientific evidence to our readers. The training she provides as a member of the faculty for ICLEF’s Admissibility of Scientific Evidence and Expert Testimony covers additional relevant topics, such as, choosing an expert witness and preparing the expert report. This seminar is available at your convenience as an On Demand Seminar, Click Here. Setup your personal viewing as your calendar allows. It only takes a few clicks.

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FULL ORDER:

ICLEF presentation by Hon. Linda Chezem, The Duty of the Attorney in Using Scientific Evidence:
Order issued by Judge Nancy Gertner, a former federal district court judge in Massachusetts:

Case 1: 08-cr-1 01 04-NG Document 45 Filed 03/10/2010 Page 1 of 3
Case 1: 08-cr-10104-NG Document 45 Filed 03/10/2010 Page 2 of 3

…of the processes used in the forensic science disciplines are … not based on a body of knowledge that recognizes the underlying limitations of the scientific principles and methodologies for problem solving and discovery …. [S]ome of these activities [encompassed by the term “forensic science”] might not have a well developed research base, are not informed by scientific Knowledge, or are not developed within the culture of science.

NRC 2009- 1-3

While the report does not speak to admissibility or inadmissibility in a given case, it raised profound questions that need to be carefully examined in every case prior to trial: “1) the extent to which a particular forensic discipline is founded on a reliable scientific methodology that gives it the capacity to accurately analyze evidence and report findings and (2) the extent to which practitioners in a particular forensic discipline rely on human interpretation that could be tainted by error, the threat ofbias, or the absence of sound operational procedures and robust performance standards.” NRC 2009 S-7.

The Report noted that these fundamental questions have not been “satisfactorily dealt with in judicial decisions pertaining to the admissibility” of evidence. Id. To be sure, the court’s treatment of this evidence relates directly to the adequacy of counsel’s treatment. See, e.g.

Sturgeon v. Quarterman, 615 F. Supp. 2d 546, 572-573 (S.D. Tex. 2009) (defense counsel’s failure to prepare a witness to testify about the unreliability of eyewitness identifications prevented defendant from presenting testimony that would have called into question the only direct evidence against him and was ineffective assistance of counsel warranting habeas relief); Richter v. Hickman, 578 F.3d 944, 946-947 (9th Cir. Cal. 2009) (en bane) (defense counsel’s failure to conduct an adequate forensic investigation with respect to blood spatter, serology, and pathology comprised ineffective assistance of counsel warranting habeas relief). See also United States v. Pena, 586 F. 3d 105 (1st Cir. 2009 affirmed) the court’s decision not to hold a Daubert hearing on fingerprint testimony where counsel offered no expert or evidence. Affirmed.

In the past, the admissibility of this kind of evidence was effectively presumed, largely because of its pedigree– the fact that it had been admitted for decades. As such, counsel rarely challenged it, and if it were challenged, it was rarely excluded or limited. But see United States v. Hines, 55 F. Supp. 2d 62 (D. Mass. 1999) and United States v. Green, 405 F. Supp. 2D 104 (D. Mass. 2005) .

The NAS report suggests a different calculus — that admissibility of such evidence ought not to be presumed; that it has to be carefully examined in each case, and tested in the light of the NAS concerns, the concerns of Daubert/Kumho case law, and Rule 702 of the Federal Rules of Evidence. This order is entered to accomplish that end.

SO ORDERED.

Date: March 8, 2010

NANCY GERTNER, U.S.D.C.

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About our Law Tips faculty participant:
Hon. Linda L. Chezem is a Professor and Adjunct Professor with Purdue University and Indiana University School of Medicine as well as a former Indiana Appellate Court Judge. She resides in Mooresville, IN. Judge Chezem provides a glimpse at her background: For example, I served as the judicial scholar in residence to the Arizona Supreme Court working in the Judicial Education Division for a semester. Much of my work has been to provide education about underage drinking and impaired driving. The impaired driving assessments (for 15 states) that I chaired are an evaluative mechanism that has been consistently supported by the National Highway Traffic Safety Administration (NHTSA). I surveyed judges and prosecutors to determine their continuing education needs and responses to science content in their education and piloted educational materials with success. I also teach law students, graduate students and lawyers about ethical and legal issues in alcohol research. As a result of an appointment to the Indiana Toxicology Advisory Board, I created a Forensic Science Ethics Class.

About our Law Tips blogger:
Nancy Hurley has long-standing connections with Indiana lawyers. She was formerly a member of the ISBA and IBF staffs for over 30 years. Nancy’s latest lifestyle venture is with ICLEF. We are utilizing her exceptional writing and interviewing skills while exploring how her Indiana-lawyer background fits with ICLEF’s needs. When she isn’t ferreting out new topics for Law Tips, her work can be found in our Speaker Spotlight blogs, postings on the ICLEF Facebook and Twitter pages, and other places her legal experience lends itself.

Thank you for reading Law Tips. You may subscribe to this weekly blog through the RSS link at the top of this page.  Also, you are encouraged to comment below or email Nancy. She welcomes your input as she continues to sift through the treasure trove of knowledge of our CLE faculty to share with you.

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