Forensics Journal - Stevenson University 2013 | Page 10

FORENSICS JOURNAL

Interview with Judge Lynne Battaglia,
Court of Appeals
Sue Schenning, Esquire
Interview conducted on Friday, December 14, 2012:

had been widely accepted and found that the theory upon which it
was based was no longer sound today. Its acceptance had eroded over
time and scientists in the field did not believe it to be reliable nor
valid today.

JUDGE BATTAGLIA, YOU HAVE WRITTEN THE COURT’S
TWO LEADING DECISIONS ON THE ADMISSIBILITY OF
SCIENTIFIC OPINION EVIDENCE IN THE CLEMMONS
AND BLACKWELL CASES. COULD YOU EXPLAIN THEIR
SIGNIFICANCE?

BOTH DECISIONS SEEM TO REFLECT THE RECOGNITION
OF THE POWER OF SCIENTIFIC EVIDENCE, WOULD YOU
AGREE?

Both cases explore the interaction of science and law. In Blackwell
v. Wyeth the issue was the relationship of thimerosol, a preservative
found in childhood vaccines, and autism in children. The premise was
that some children, but not all, who received vaccines with thimerosol
developed autism. A scientist developed the theory that thimerosol
caused autism in children, but then later qualified his theory to
thimerosol triggering a genetic predisposition to autism in children.
The trial judge, Stuart Berger of the Circuit Court for Baltimore City
(now on the Court of Special Appeals) conducted a week long hearing in which he examined the qualifications of the experts to testify
regarding the relationship of thimerosol to autism, and whether there
was any causal connection between the two.

Yes, junk science, science based on false premises or an analytical gap
(the use of sound data in an unsound way) can drive verdicts and produce unjust results. It may adversely affect people’s faith in the judicial
system by producing unjust results.
WHAT CAN OUR STUDENTS WHO ARE BEING TRAINED IN
HOW TO BECOME EXPERT WITNESSES TAKE FROM THESE
CASES? ARE THERE LIMITS ON TESTIMONY?
It depends on the role, whether the student is going to be testifying
as an expert or investigator. If testifying as experts, students must
become familiar with the state of the law and the state of the science.
They must be prepared to address the changes that may have occurred
in the science or its reputation. If engaged in litigation, experts must
be prepared to present arguments for or against the science. At the
same time, experts must take care not to become advocates. Once the
expert becomes an advocate, he/she loses all credibility.

Judge Berger believed that his role as a trial judge was to be the gatekeeper in deciding the admissibility of the evidence. He determined
that the premise that thimerosol was related to autism was not sound,
the theory did not meet the standard of reliability found in “Frye/
Reed” and there was no scientific causal connection between the
drug and autism. When the Court of Appeals looked at the case, we
not only examined his legal conclusions de novo but agreed with his
finding that the offered “science” did not meet the standards of “Frye/
Reed”, derived from a decision of the Court of Appeals in 1978 in
Reed v. State. In writing the Blackwell decision, I was able to explore
the interaction of science and law and realized that scientific standards
are much more rigorous than law because we have no test tube in law
nor do we have the ability to replicate the human experience.

With established science, if problems occur, it is usually because the
expert has overstated the premise. Instead of finding a connection
or correlation, it becomes 100% that X proves Y, when no scientist
would ever say that. Science is never 100% anything. When an expert
looks at a theory as an absolute or becomes invested in results, problems will ensue.
One of the major correlations between law and science is that both
embrace process. In law, it is generally shorter, resolution oriented and
involves due process. With science, there is a similar process but over
a longer period of time. Experts who are results oriented are really
short circuiting the process.

Scientists are skilled at withholding critical analysis, whereas lawyers
are required to develop critical analysis and apply it instantaneously.
In science, the ability to replicate the method and result is the cornerstone of reliability of their work. We can never replicate human
experience in law. So the search for truth in science is really very
different than in law.

AS A JUDGE PRESIDING OVER CASES INVOLVING THE
INTERRELATION OF SCIENCE AND LAW, HOW DOES ONE
PREPARE?

In Blackwell the Court recognized the gate-keeping role of the trial
judge when it comes to scientific evidence, a position not without
controversy among some judges who believe it should be up to the
jury to decide the validity of the science. We felt it was important to
maintain confidence in the court system to keep bad science out.

In the shift to a different role from prosecutor to judge, I have learned
just how much I don’t know, a humbling experience, but a process
that allows me to divorce myself from results. It has been one of the
best things that has happened to me in this job. I have been able to
explore the vastness of knowledge. To write Blackwell, was a gift to
me.

Clemmons presented the unusual situation of what to do when reliability and validity of a scientific theory hav H\