As technology advances and new scientific discoveries are made, more courts are faced with issues of admissibility and reliability as challenges in administering their use. Judges and juries are faced with difficult scientific and often unscientific propositions delivered through self-serving expert witnesses and tailored studies. Development of science and tech in the courts is not limited to new findings of traditional sciences but far more narrow and complex fields. Emojis and emoticons for example are making their way into the courts and have been over the last decade as evidentiary supplements and sometimes crucially so. While several new scientific and technological developments do not serve as the deciding factor for many cases, their use means they must be acknowledged, which certainly contributes to the already complex mixture in the adversarial system. Even when immaterial, evidence admitted is evidence heard and juries must make sense of what’s presented as they come to a conclusion.
The issue with scientific evidence is that the factfinder is more than likely an untrained outsider in relation to what is being presented. A well-functioning adversarial system proposes that the truth will come out through the tug and pull of two sides pushing each other’s arguments to their limits. With science and technology this often presents itself as multiple “experts” coming to opposing conclusions as demanded by the party that employs them. Juries are not truly presented with objective scientific inquiries that are then adapted to the facts, rather, the science is colored by the party’s goal. Even when objectively presented, the complexities of the presentation itself can muddle the factfinding process. Take DNA and other forensic evidence for example. As long as the methods are verified and accepted, and the samples in a given case are sufficient for analysis, there should be an objectively accurate representation supporting a specific conclusion. What we sometimes see in DNA cases though, especially in cases involving complex mixtures of DNA for more than one or two individuals, is that the forensic conclusion is one thing, the statistical representation to the jury by a prosecutor or defendant is another. Depending on how the results of a DNA analysis is presented, a lay jury can be receiving unhelpful and even misleading statistical information about the scientific evidence. Continuing with DNA, another issue is the sheer force some scientific evidence can generate from media and societal beliefs on science. Forensics like DNA is the obvious example as juries are often swayed by the mere mention of DNA analysis even when other evidence supports a completely different conclusion. A different example is that of the polygraph, which though almost unanimously rejected by relevant scientific communities has long been used and is sometimes still used by law enforcement and introduced in courts for the mere fact that public opinion accepted it as accurate. The rationale is sometimes that pressure might lead a defendant to confessing without or while taking the test. Bloodstain pattern analysis is another science that’s been widely accepted despite a self-promoting proof history with no objective proof of its validity. It’s a challenge to dispute a proposed truth especially when it’s been accepted repeatedly over time.
As discussed above with DNA, even when valid, the courts face challenges with the presence of scientific evidence in the trial process. As the presentation of science and technology can add a subjective element that masks itself as objective, it can convolute an already intricate process regarding the search for truth. In a 2017 case, an Israeli couple was charged thousands of dollars in fees after a court ruled that their use of emoji to a landlord signaled an intent to rent his apartment. Aside from the question of what constitutes an expert in such a setting there remains the inherently subjective interpretation of emoji based on the individual. Regardless of the outcome, a case like this typifies a challenge with new, narrow, uses of science and tech in the courts, for which the courts are not prepared to handle.
In the United States the standards for evaluating the admissibility and reliability of scientific evidence in the courtroom was first established in 1923 in Frye v. United States. The established standard was that scientific evidence was admissible if it was generally accepted in the relevant scientific community. This continued to be the standard until 1993 when the case Daubert v. Merrell Dow established four new factors to be considered in admitting scientific evidence. The factors are the testability of the theory/methodology, whether the theory has been published and subject to peer review, any potential rate of error, and whether the knowledge has reached general acceptance in the relevant community. While Daubert trumped Frye in federal settings, states have retained the right to use either Frye, Daubert, or some combination of the two. Almost eighty percent of states employ the Daubert standard with the rest retaining Frye or some other process. Aside from the jurisdictional challenge of which standard to meet, less privileged plaintiffs and defendants especially face strong challenges regarding the use of science in the courts. What we’ve seen since Daubert is that those with the means to hire good, more expensive experts can get their evidence admitted as they are more likely to meet the four factors in Daubert, while less privileged plaintiffs bear the burden of rebutting such expert witnesses or bringing in their own evidence due to the more stringent standards. The effect of this is that evidence is sometimes being introduced to the courts not because it’s generally accepted as true but because if you have the means you can find an opinion tailored to your position.
The challenge for judges and juries is that a lack of familiarity and literacy with new science and trending changes in technology creates a dependence on the adversarial system to justify and debunk technical claims as more and more niches of scientific evidence emerge in the courts. The challenge for the adversarial system is that expert opinions are not created equal. The challenge for experts is that you have an inherent incentive to support your position and your paycheck, altogether creating a scientific reality in the courts that doesn’t always reflect the larger world.
Science and technology in the courts adds complexity to an already complex system. While their use can be extremely beneficial, the challenge of complex systems is the natural accidents that accompany them. While our legal system is inherently complex and has built in resistance to natural accidents, they do sometimes happen, and we have accepted that reality as the best we can do. The question is whether the influence of new science and technology in the courts exacerbates the nature and frequency of those natural accidents and what to do about it. At the minimal a more scientifically literate populous among lawyers and Judges might create a higher threshold for what stands up in courts and what doesn’t. Questions have been raised about court appointed experts as a solution to the self-serving nature of expert opinions but that adds an additional cost and takes away some of the inherent autonomy of the adversarial system. As more advancements are made in scientific and technical inquiries, it is important for actors in the legal system to deliberate before acquiescing to their introduction in legal settings. In other words, the best response to the speed of science in law might not be to keep up but to slow down.
Enoch Ajayi is a J.D. candidate, 2020, at NYU School of Law.