Category: News

By Judge Brian MacKenzie

“Scientific evidence permeates the law” according to Justice Stephen Breyer (see note 1). His statement was specifically about scientific evidence in a trial. However, trials are not the only place where judges are being pressed to understand and then use the ever-expanding universe of research based knowledge that is available. While present in hearings and trials, there has been a particularly strong move to have judges apply such information in sentencing and probation supervision. The development of evidence-based sentencing, a concept based on a medical model, is merely one example (see note 2).

This expanding universe of scientific knowledge has engendered many discussions about the perceived need to increase the amount of science based education judges receive. Some argue that judges should be educated like scientists. The problem intrinsic this idea is that judges are specialists in the law, and generalists in everything else. Moreover, the vast majority of judges turned away from a scientific education, at least by the time they were in college and certainly by the time they were in law school. Law school teaches a different manner of seeking the truth than the scientific method.

After all, what scientist would accept a scientific proposition that while approximately 90% of people arrested will be convicted of a crime, each of these
people starts with the presumption that they are innocence of the charges? Beyond inclination and education, there is the question of time. Most judges are lucky if they receive two or three days of judicial educational during the course of the year. Much of that educational time is spent on updates on the current state of the law. Nonetheless, it is true that judges need to be given the tools to help them process scientific information in their different
roles as what Justice Breyer calls “evidentiary gatekeepers” and as “finders of reality based facts (see note 3).”

These different roles suggest there should be different educational approaches. When the judge is acting as an evidentiary gatekeeper, (for example, deciding whether the results of a drug test should be admitted in a trial) a thorough understanding of the rules on the admissibility of scientific evidence would be helpful. A judge who is sentencing a defendant and is trying to assess that person’s future behavior needs yet a different understanding — one based more on psychology and social science.

How does the judicial education community meet the varied educational needs of the judiciary? It starts with the recognition that judges are specialists in the law and generalists in everything else. As part of that legal specialization judges are the evidentiary gatekeepers for any scientific or technical evidence that is admitted in a trial. As the Supreme Court stated: “Daubert‘s gatekeeping requirement is to make certain that an expert, whether basing testimony upon professional studies or personal experience, employs in the courtroom the same level of  intellectual rigor that characterizes the practice of an expert in the relevant field” (see note 4).

Providing judges with the tools to make better evidentiary decisions about the admissibiity of scientific evidence will also ensure that the trier of fact is not confused by poor or junk science. Gatekeeping will not help a judge better understand the emerging science about addiction when it comes to sentencing. Neither will it help with a risk assessment about a defendant’s future conduct. But, as sentencing is a part of the specialized training judges already receive, there is a wealth of training and conferences on this topic. For example, one need only look at the National Association of Drug Court Professionals annual conference for trainers who teach about every aspect of addiction and sentencing.

Still, not every judge has either the time or the interest to attend a national training. How can we better assist the judiciary in dealing with this flood of scientific evidence? One answer was developed by our colleagues in Canada created a bench book entitled the “Science Manual for Canadian Judges” (see note 5). Bench books and the trainings connected to them are an excellent means for helping judges keep current with the needs of their job. NAJSE should take a leadership role in creating such a manual.

NOTES

1. Justice Stephen Breyer,“Science in The Courtroom” Issues In Science And Technology, 2000
2. Sonja B. Starr, “Evidence-Based Sentencing And The Scientific Rationalization Of Discrimination” Stanford Law Review, Vol. 66:803, 2014
3. Breyer, note 1
4. Ibid
5. “Science Manual for Canadian Judges” NATIONAL JUDICIAL INSTITUTE, INSTITUT NATIONAL DE LA MAGISTRATURE, 2013

ABOUT THE AUTHOR
Judge Brian MacKenzie is an award winning judicial educator who retired from the bench after almost twenty-seven years of service. After leaving the bench he helped to create the Justice Speakers Institute where he is now a partner and chief finical officer. He has been honored by the Foundation for the Improvement of Justice with the Paul H. Chapman medal, for significant contributions to the American Criminal Justice System and by the American Judges Association for significant contributions to judicial education. Judge MacKenzie served as the President of the American Judges Association from 2014 to 2015. From 2008 to 2010 Judge MacKenzie was the American Bar Association/National Highway Traffic Safety Administration Judicial Fellow. He received his Juris Doctorate from Wayne State University Law School in 1974. Judge MacKenzie has written and lectured throughout the world on issues including procedural fairness, veterans treatment courts, domestic violence, drug treatment courts, alcohol/drug testing, and high visibility cases. Among other entities he has presented for American University, the National Judicial College, the National Association of Drug Court Professionals, the American Judges Association, the American Bar Association, the National Traffic Safety Administration, and the National Association of Court Managers. He is the co-editor of the book, “Michigan Criminal Procedure”. He is also the author of the American Judges Association’s position paper entitled “Procedural Fairness: The Key to Drug Treatment Courts”. His blog and podcast can be found at http://justicespeakersinstitute.com/. Judge MacKenzie is married to Karen MacKenzie. He has three children; Kate, David and Breanna and five grandsons, Daniel, Raymond, Henry, Zachary and Lucas.

The Education and Curriculum Committee is hard at work on a number of initiatives designed to enhance the professional lives of judicial educators. The fifteen-member committee, co-chaired by Judith Anderson of Washington and Anthony Simones of Missouri, made the decision to split into three subcommittees in order to effectively achieve the goals of the group.

The first goal is to propose curriculum-based sessions for the 2017 NASJE Conference. The subcommittee that took on this task included Kelly Tait, Janice Calvi-Ruimerman, Marie Anders, Stephanie Hemmert, Dana Bartocci, Judith Anderson and Anthony Simones. After reviewing the sessions offered at recent conferences, a number of needs were identified. One session will examine why the curriculum designs were created and how they can be used by judicial educators to enhance the quality of their work. A second session will address the always-relevant topic of diversity issues. A third session will explore success in writing grant applications. Finally, a much-needed session will deal with the Human Resources Curriculum Design. Workgroups are currently creating proposals for these sessions to be submitted to the Conference Committee.

A second goal is to continue what has come to be known as the “Article Club.” Created last year, it was inspired by the success of book clubs throughout the nation. However, the idea of asking busy judicial educators to find the extra time to read a book to prepare for a single meeting struck the committee as unrealistic. On the other hand, simply asking them to read an article in preparation for a session was much more realistic. Thus, the initial idea of a “book club” became a much more practical “article club.” Another modification of the status quo involved the “webinar” format. The visual-heavy focus of webinars seemed ill-suited to what the committee sought to accomplish with these sessions: the simple sharing of ideas. It was decided that a conference-call format would be much more conducive to achieving this objective. Thus, the “callinar” was born. The two sessions were well-received last year and two more callinars will be offered in 2017. The subcommittee charged with offering the article club callinars includes Julie McDonald, Thea Whalen, Linda Dunbar, Judith Anderson and Anthony Simones.

A final goal is to identify and to lay the foundation for the creation of the next curriculum design: ethics. The subject of ethics is one that has permeated all of the existing curriculum designs. The committee concluded that rather than just occupy a small section of the various curriculum designs, this issue is one that justifies its own curriculum design. Jeff Schrade, Jesse Walker, Janice Calvi-Ruimerman, Ileen Gerstenberger, Stephen Feiler, Christine Christopherson, Judith Anderson and Anthony Simones comprise the subcommittee that will address this issue. The first step will be to develop a core curriculum on ethics. After this, the group will wrestle with a number of issues involved in the creation of the Ethics Curriculum Design, including the designation of an author, as well as the question of whether to continue the structural approach used in the past curriculum designs.

The agenda of the Education and Curriculum Committee has been characterized as ambitious. Given the importance of the issues this committee addresses, and the quality of the individuals who compose this group, it is difficult to imagine anything less than an ambitious agenda for this committee.

If you are interested in getting involved with the Education and Curriculum Committee, please feel free to contact co-chairs Judith Anderson at judith.anderson@courts.wa.gov or Tony Simones at anthony.simones@courts.mo.gov.

Mark Goodner, Deputy Counsel and Director of Judicial Education, TMCEC
Regan Metteauer, Program Attorney, TMCEC

Judicial Education in Texas works differently than in many other states. Instead of judicial education being a function of the Office of Court Administration (OCA) as it is elsewhere (usually called the AOC or Administrative Office of the Courts), judicial education is provided through multiple entities each providing training for a different segment of the judiciary. This judicial education is financed by a grant from the Court of Criminal Appeals (Texas’ highest court for criminal cases) out of funds appropriated by the Legislature to the Judicial and Court Personnel Training Fund. In Texas, judicial education is administered by the Court of Criminal Appeals, through grants from the Court to Judicial Education entities, such as the Texas Municipal Courts Education Center (TMCEC).

TMCEC was formed in 1984 by the Texas Municipal Courts Association (TMCA) to provide extensive, continuing professional education and training programs for municipal judges and court personnel. In the last fiscal year, TMCEC trained over 5,300 municipal judges, court administrators, clerks, juvenile case managers, prosecutors, bailiffs, and warrant officers. Other education providers such as the Texas Association of Counties, the Texas Justice Court Training Center, and the Texas Center for the Judiciary provide extensive education opportunities to their respective constituencies. Some specialized education is also funded through other grants from the Texas Department of Transportation.

Since 2008, TMCEC has received special funding from the Texas Department of Transportation to provide education on traffic safety, with a focus on impaired driving. The role of municipal judges in impaired driving cases, primarily as magistrates, is only part of a bigger picture. All levels of the judiciary have a role in an impaired driving case. Thus, the impaired driving symposium was born.

The Impaired Driving Symposium is a special conference hosted jointly by the Texas Association of Counties, the Texas Center for the Judiciary, the Texas Justice Court Training Center, and TMCEC. This seminar gives Texas judges the opportunity to converse and network with judges from other levels of the judiciary with the goal of streamlining impaired driving cases from arrest to disposition. Course topics for the 2016 Impaired Driving Symposium included probable cause, blood warrants case law, electronic search warrants, compliance issues, case studies, drugged driving, setting bond conditions, occupational driver’s licenses, and minors under the influence. Over 140 Texas judges attended the 2016 Impaired Driving Symposium. The third annual symposium is scheduled for 2017. The Impaired Driving Symposium has proven to be a successful new model of education only possible through the combined efforts and support of all of the judicial education entities.

Mark Goodner is the Deputy Counsel and Director of Judicial Education for the Texas Municipal Courts Education Center (TMCEC). Annually, Mark plans, develops, and oversees ten Regional Judges Seminars per year each offering 16 hours of judicial education along with two 32-hour New Judges Seminars. In addition to his work at TMCEC, Mark serves as the Presiding Judge for the City of Woodcreek and as an Associate Judge for the cities of Bee Cave and Leander. Mark is a Certified Court Manager, having completed the Court Management Program of the Institute for Court Management in August 2016. Mr. Goodner graduated from the University of Texas School of Law with a juris doctorate and certification in the Graduate Portfolio Program in Dispute Resolution in May of 2007.