Bringing science to justices. (NIEHS News).

California Court of Appeals justice Thomas E. Hollenhorst jokes that he and many other judges chose law as a career to escape science and math. "I think that for the typical judge, there was a Y in the road when they started college about whether they were going to be involved in hard science or soft science," he says. "I think that many of them fled to soft science because they didn't have the wiring to do hard science, and they've continued to just stay away from it."

For science-averse judges everywhere, however, those days are over. Ever since 1993, when the U.S. Supreme Court ruled in Daubert v. Merrell Dow Pharmaceuticals that federal judges must take greater responsibility in weeding out unreliable "junk science" in courts, the judicial remove from hard science has been shrinking. Even though Daubert applied only to federal courts, most states have since adopted similar standards. At the same time, the development of the Human Genome Project and the explosion of legal and ethical questions surrounding genetics are bringing science into the courtroom like never before.

In response to this growing need for greater judicial scientific knowledge, the NIEHS and the U.S. Department of Energy have joined together to provide funding for the Einstein Institute for Science, Health and the Courts (EINSHAC), a nongovernmental organization created in 1993 to educate judges about genetic science. EINSHAC enthusiast James K. Selkirk, who is deputy director of the National Center for Toxicogenomics at the NIEHS, says that NIEHS director Kenneth Olden saw a need for an entity to help jurists deal with their new responsibilities. "Ultimately, part of our goal as an institute is not only to seek scientific truths, but to communicate those truths out to the world," Selkirk says. "EINSHAC is a venue by which judges can be educated in information they're not routinely exposed to in their legal training."

Reaching a Level of Comfort

According to lawyer Franklin Zweig, who has served full-time as president of EINSHAC from its start, the organization has conducted 37 programs to date and built its network of participating judges--who, because of limited resources, must be invited by other EINSHAC judges--to about 3,000. As its numbers have grown, so has the breadth of EINSHAC's interest. In addition to genetics, EINSHAC programs now examine environmental science, molecular biology, biotechnology, and bioterrorism.

"Our mission," Zweig says, "is to make the science understandable, to extract the mystique, and render it in 'plain vanilla' so that judges, who tend to be phobic about science, have a better chance of accessing it and turning its implications into procedural benefits for case management."

EINSHAC events, which are run primarily by judges and a few scientists, range from half-day seminars to larger conferences of several days. Typically, each event features one topic that gets broken down into subtopics addressed by keynote speakers and discussion panels. In "adjudication clinics," small groups of about a dozen judges break out to discuss hypothetical cases with a scientific advisor. "We don't prescribe outcomes," Zweig says. "[The judges are] the decision makers; they must determine the outcomes."

Although EINSHAC strives to provide judges with comprehensive scientific information, its objective in doing so is much narrower. "We seek to increase judges' comfort and confidence that they can control the expert testimony in a proceeding," Zweig says. "We find that that's the most valuable objective for judges, whose main gatekeeping role is to determine what evidence should be brought in and what should be excluded."

In the case of bioterrorism education, however, the goal is broader. Rufus G. King III, chief judge of the Superior Court for the District of Columbia, has been an EINSHAC bioterrorism panel member several times, and he says it's helped him and others come to grips with a variety of administrative questions related to bioterrorism. For instance, King says, "What if a lawyer comes up and says, 'My client has told me that he [possesses the smallpox virus] and that he's doing everything he can to see that everyone in the building dies'? What do you do? You're responsible; this is your courtroom. Do you close the court? Do you excuse people? Do you get that person into the cell block?"

Taking It to the Courtroom

One judge, who requested anonymity, listed several ways in which her EINSHAC experience helped her in determining real-life outcomes. In one, a medical negligence case, the lawyers and their scientific experts were vigorously arguing whether the matter would ever get to a jury. The judge's EINSHAC training helped her recognize the scientific problems the case would face if it went to trial at that point. "Because of my EINSHAC experience, I was able to suggest that they go on their own to a neutral scientist for evaluation [of the evidence]," she says. "I actually suggested a doctor who's never in the court system; he doesn't participate in the adversary process and has a very good reputation. They went to him, and the case disappeared."

She credits her EINSHAC education for providing a "certain comfort level with science" that has convinced her twice to disqualify scientific experts during trial because they lacked the competence necessary for the case--not something a judge does lightly. In one of the situations, the case disappeared because the parties couldn't come up with the qualified expert required by the judge. In the second, the dismissal was upheld on appeal.

In addition, says this same judge, her experience with EINSHAC gave her the idea of providing case-specific scientific glossaries for jurors, which she has used several times at trial. "Every juror in the box has a long glossary of terms so that when these terms are used by the experts, they can look at them and understand what's being said," she says. "I require the lawyers to agree on the glossary; they have to write it up."

The primary EINSHAC goal of helping judges better identify the scientific evidence to be allowed at trial doesn't apply to appellate judges, who can't bring new evidence into their review of lower courts' findings. But Hollenhorst said that his EINSHAC education has still been helpful. "At the appellate level, it gives us a much better encyclopedia to deal with terminology and the correctness of assertions that have been made in the trial court," he says. "It's caused me to look at the scientific issues with a more discerning eye about how they were handled."

King says that his own education from EINSHAC greatly increased his comfort with DNA evidence in criminal trials involving serious felonies such as murder and rape. It also gave him an idea: why not develop some basic scientific materials to guide jurors when they hear complex scientific cases? The result, in 2001, was a 25-minute video that explains basic DNA science. "Now, instead of a juror's first experience with any DNA science being from an expert who has a motive, their first exposure is from somebody trying to give them sort of a high-school-level background on it," he says. "Then, when they start to listen to the experts, who are perhaps trying to exert a particular spin, there's a little greater level of sophistication." King has used the video in court and made copies available at EINSHAC programs, where, he says, they are very popular.

Widening Perspectives

One EINSHAC program, the Genetics Adjudication Resource Project, or GARP, is designed to assist judges by predicting new kinds of cases that may arise from the Human Genome Project's mapping of all human genes. Judge Pauline Newman of the U.S. Court of Appeals for the Federal Circuit, who chairs the GARP Advisory and Review Committee, says, "The committee's job is to keep track of everything that's being done and is proposed to be done, and to provide advice, suggestions, and critical commentary on it." (Newman has a Ph.D. in chemistry and worked as a chemist before switching to law.)

In following the science, EINSHAC is taking on a more global perspective, according to Zweig. "When we started, we focused on federal and state courts exclusively, but as the science clearly [spread] across the globe and the disputes inspired by science and technology became more and more international, we started and enhanced an international focus."

To that end, EINSHAC judges have traveled to other countries to discuss what they've learned about scientific advances in the United States. Those trips are part of an EINSHAC project called International Working Conversations, which will conclude in mid-2004 with the Third Courts International Working Conversation on EnviroGenetics Disputes and Issues in Australia, and the subsequent publication of an international guidebook on court management of life science technology disputes and evidence.

Where science deals in broad data about probabilities, courts operate on a case-by-case basis. This creates an inherent uneasiness between the two, and one of EINSHAC's goals is to reduce that uneasiness. Sheila Newton, director of the NIEHS Office of Policy, Planning, and Evaluation, uses the analogy of a chemical exposure level to demonstrate the difference between the two realms: Where a scientific study may be able to identify what percentage of a group of people will be affected by a specific exposure level, courts are interested in determining whether an individual is likely to have sustained an injury due to an exposure, she says. The process for determining justice based on scientific probabilities is difficult, but judges are the ones who have to make it work, Newton says. "That's why we think that the work that EINSHAC is doing is so critical."