New York judges are arming themselves with science, the better to be “gatekeepers” of expert testimony in the courtroom, according to the NY Law Journal. The notion that judges are qualified to resolve scientific disputes comes from the famous Supreme Court decision, Daubert v. Birth Defects Pharmaceuticals, Inc.
Justice Rehnquist – not usually known for modesty – dissented that he was darned if he understood what they were talking about, “error rate” and “falsifiability” and what-have-you. New York sensibly ignores Daubert and tells judges that so long as the science is accepted by reputable professionals in the field, that’s enough gatekeeping already. The rest is up to the jury using their life experience of watching aspirin commercials.
But we’re all for remedial judicial education – it’s embarrassing when our highest state court refers to DNA charts as “those little peaks and valleys” instead of the proper scientific term, doodads. Judge Curmudgeon Bludgeon enthusiastically recommends Science.
Scene: The Judge Cafeteria in the Brooklyn courthouse. Judge Bludgeon plops his tray down next to Judge Tenafly and Judge Gravesend eating jell-o salads.
Tenafly: . . . and of course I found it reliable because it was a dying declaration. Plus he swore on the Bible. Hiya, Bludge, where’ve you been all week?
Bludgeon: Just got back from rigorous scientific boot camp in Cancun.
Gravesend: Science, bah, humbug! Undermines our authority. There’s only one expert in my courtroom, and that’s me.
Bludgeon: You guys better get with the program and learn to talk science or jurors will be snickering at you before you can say “falsifiability.” After all, we’re the gatekeepers.
Tenafly: Gatekeepers? You mean like in that Kafka story? Where the litigant never gets past the Gate of the Law?
Bludgeon: (smugly) I bet you don’t even know what a hypothesis is.
Gravesend: I do so! It’s an explanation. Like if somebody takes up two seats in the subway, it’s because he’s putting his own interests above those of Society.
Bludgeon: And what if somebody disagrees with your hypothesis?
Tenafly: Then I hold them in contempt.
Bludgeon: No, no, no, you have to test your hypothesis.
Gravesend: (baffled) But why? If I think it, it must be right.
Tenafly: And how can you test what you already know is right?
Bludgeon: You exercise your sound discretion, just like always. Only now we call it Science.
Gravesend (to Tenafly) Gosh, we’d better sign up for Science Camp right away!