Thoughts on 'gatekeeping'.

I was encouraged to see that the September issue of TRIAL was devoted to "Experts and Evidence" and that the article by Bert Black discussed the fact that "something has gone wrong with Daubert." [Learn the Science in Your Cases, Sept. 2003, at 18.]

Since Daubert, federal judges have become the "gatekeepers" of justice. More and more frequently, laws, rules, and regulations have entrusted judges with a degree of power that certainly would have shocked the nation's founders and, no doubt, the judges' own legal mentors.

Daubert holds that a judge has the right to rule on the admissibility of expert evidence based on whether he or she perceives the evidence to be "valid." The criteria set forth in Daubert and its progeny concerning when evidence should be admitted are the same ones that any juror with common sense would use in evaluating the weight that should be given an expert's testimony: What is the scientific basis for the evidence? Are there objective tests? Has the expert published in his or her area of expertise?

Daubert has given federal judges an almost impossible task. Black tells us that, as attorneys, we must "learn the science" in each case in which we or our opponents present scientific evidence. Incredibly, a federal judge must learn the science in every case on his or her docket. The enormous amount of time that this effort must take is truly mind-boggling.

This trend can perhaps be traced to Marbury v. Madison, in which the U.S. Supreme Court declared itself to be the final arbiter of what laws are constitutional. It is a cornerstone of our jurisprudence that the Supreme Court determines what laws pass constitutional muster, but the practicality of district court judges determining the validity of a case on grounds other than purely legal ones is suspect.

A final thought: Have we truly considered the impact of having lifetime-appointed judges act as "gatekeepers," evaluating the substantive validity of lawsuits?

There are strong arguments to be made for the lifetime appointment of judges, but none of them is based on the idea that such a system is more democratic than electing judges to the bench.

There are strong arguments to be made for a judicial "gatekeeper" to bar "junk" science from the courtroom, but none of them is based on the assumption that jurors can make valid judgments about such evidence.

We proclaim that we want to bring democracy to the world. Are we afraid to bring it to our own courts?

Armando A. Pandola Jr.

Philadelphia, Pennsylvania