Ruling the Rulemakers: Mending the Relationship between Science and the Rules of Evidence

Abstract

Under Rule 702 of the Federal Rules of Evidence, which reflects the Supreme Court’s landmark decisions in Daubert and Kumho Tire, courts are forbidden from admitting scientific conclusions unless they are meet certain standards for scientific research. This framework seeks to prevent important judicial determinations from being made on the basis of “bad science” - that is, untested and unreliable theories. One would think then that the Advisory Committee on Evidence Rules, which helped codify Rule 702, would insist on worthy scientific research when that research could assist them in deciding how to draft and amend other evidentiary rules. Not so. Ironically, many of the rules of evidence are themselves based entirely on bad science - or what others may call “fireside inductions.” For example, excited utterances are admitted under a hearsay exception because they are presumed - intuitively - to be inherently reliable, but scientific research warrants the opposite conclusion. Even more recent rules, such as the rules on privileges, have an important empirical component, and yet empirical research played an insignificant role in their development. The evidence rulemakers have extraordinarily broad responsibility but remarkably little guidance on how to perform their difficult and weighty task, and the solution may call for standards and governance in the rulemaking process. The Advisory Committee has certain resources at its disposal, such as the Federal Judicial Center, that allow it to obtain more rigorous research if it wishes. Without this research, the process suffers. This Article proposes that the Standing Committee on Rules of Practice and Procedure, which oversees the rulemaking process, promulgate a set of “governing principles” for the Advisory Committee on Evidence Rules. In short these principles would require, first, that rulemakers should consider scientific research wherever possible; second, that any research reflect the principles of “good science,” as outlined in Daubert; and third, that rulemakers be transparent when choosing to disregard such research for other reasons. Given the power of the Advisory Committee to prescribe the rules by which every federal district court operates, these added obligations will ensure that the process reflects not only the best that legal theory can offer, but the best that scientific knowledge can offer as well.