Judges as "Amateur Scientists"

In this essay written over a decade ago, David Faigman claims that "Scientifically illiterate judges pose a grave threat to the judiciary’s power and legitimacy."

How can a judge who knows nothing about science make an arbitrary decision with scientific evidence? Today's judiciary collectively resembles a preacher delivering a sermon, not an application of the scientific method by even amateur means. There is a reason for this, says Faigman under the heading "D. Bringing the General Down to the Specific"

Virtually all scientific research is done at the population level, yet it is often used to make statements about particular cases. As I have put it elsewhere, "[w]hile science attempts to discover the universals hiding among the particulars, trial courts attempt to discover the particulars hiding among the universals." Scientists usually study variables at the population level and design most of their methodological and statistical tools for this kind of work. The trial process, in contrast, usually concerns whether a particular case is an instance of the general phenomenon."

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One could infer that someone is statistically likely to commit a crime or uncivil action that negatively impacts a victim. It is up to the judiciary to step up and decide whether statistically likely person A or statistically likely person B is guilty or innocent, or to attribute harm done to circumstance. Lung cancer and secondhand smoke are discussed as an example.

This is still a problem today. The judiciary may believe that science has captured the public eye, but unless they want to be blinded by science, then they should understand the meaning of scientific implications. A judge should not fail in his or her judicial duties because he or she does not understand the body of evidence. Such ignorance is as bad, if not worse than a technologically averse judge hearing a case about technological improvements to be made on infrastructure.

The judiciary, at bare minimum, should have a rudimentary understanding of probability and statistics in order to hear cases which use any type of probabilistic or statistical evidence.




http://www.bu.edu/law/journals-archive/bulr/volume86n5/documents/faigmanv.2.pdf