Forensics Journal - Stevenson University 2013 | Page 11

STEVENSON UNIVERSITY

ken, don’t fix it” which is another way of expressing stare decisis. The
Blackwell opinion discusses the reliability of evidence, a concept from
Daubert, but the opinion is clearly not an adoption of Daubert. I
extrapolated the reliability discussion from Daubert because it really
was not part of the “Frye/Reed” opinion. There has been no showing
of a need to change the standard, however, whether conservative or
not, and the Blackwell conclusion has been universally accepted.

DO JUDGES HAVE TO BECOME SUBJECT MATTER
EXPERTS? ARE THERE FORMAL TRAINING PROGRAMS
FOR MARYLAND JUDGES?
Judge Robert Bell, our Chief Judge and one of the founders of
ASTAR (Advanced Science and Technology Adjudication Resource
Project) nationally, has made a significant investment in the training
and education of our judges. This will be his legacy when he retires
later this year.

SHIFTING GEARS FOR A MINUTE, THE COURT HAS JUST
ANNOUNCED A CENTER FOR PROFESSIONALISM WHICH
HAS BEEN A STRONG INTEREST OF YOURS SINCE YOUR
APPOINTMENT. WHAT PROMPTED YOUR INTEREST IN
PROFESSIONALISM?

With federal funding, Judge Bell initiated the ASTAR program for
trial and appellate judges to train them in various aspects of science in
order to understand the scientific method. We have covered genetics,
DNA, brain scans, and addiction, not to be subject matter experts,
but to understand the analytical process and learn the scientific
method. I can’t think of an area of science that we have not discussed
from cancer to differential diagnosis. Without that training it would
have been difficult to decide cases like Blackwell. The training allows
the judge to feel comfortable in the gate-keeping role, a function that
the Court of Appeals feels is important.

For a long time there has been a required course in professionalism for
newly appointed lawyers, but none for experienced lawyers.
When I came on the bench in 2001, the Maryland State Bar Association had recommended similar training for experienced lawyers. The
concern was that some lawyers and judges did not have a real sense
of professionalism. We, on the Court, felt that we needed an understanding of the status of professionalism throughout the state.

WHO ARE YOUR PARTNERS IN ASTAR?
We are fortunately situated in the midst of some of the most
important scientific research institutions in the country, so we have
partnered with the NationaI Institute of Mental Health, National
Institute of Health and Johns Hopkins. We have judges coming from
all over the country to attend our programs.

I led the Task Force on Professionalism and with Chief Judge Bell and
others visited every county in Maryland and conducted open hearings
with members of the Bar in attendance to explore: what was the sense
of professionalism in that locale, was it waxing or waning, the reasons
why and if waning, the ways to deal with it. In most every county,
there was a general sense that professionalism, defined in different
ways in terms of civility and ethics, was declining. A large part of
the problem involved practice areas such as domestic law, motivated
by clients’ desire for “Rambo style” lawyering or it was facilitated
by advances in the use of technology allowing for fast, sometimes
unguarded communication.

DO YOU SEE ANY TRENDS IN THE ACCEPTANCE AND
HANDLING OF EXPERT WITNESSES?
The Court does not select its cases and so it follows somewhat slowly
behind the trend. We only get the case after it makes its way through
the court system.

As an outcome of that work, we just announced the opening of the
Center for Professionalism, a quasi-judicial agency which will be
responsible for conducting the training for the newly admitted lawyers in a day long program as well as a mentoring program.

HOW ABOUT THE USE OF EXPERT PANELS APPOINTED BY
THE COURT IN HIGHLY TECHNICAL CASES?
When I think of expert panels, I envision experts acceptable to both
sides, but practically speaking, we lack the resources. The federal
courts have used panels for years because they have the funding. With
state courts, there really is no money to support expert panels.

The next wave will be dealing with aging attorneys, multi-jurisdictional practice (out of state lawyers), substance abuse in attorneys, and
mandatory CLE for all lawyers.

HOW WOULD YOU INTERPRET THE FACT THAT
MARYLAND’S COURT OF APPEALS HAS NOT ADOPTED
DAUBERT AS OUR STANDARD? IS THIS A REFLECTION OF
A CONSERVATIVE APPROACH TO SCIENTIFIC EVIDENCE?

We recognize the need for a professionalism course for experienced
lawyers. We all need refreshers and most lawyers recognize that. There
is just some resistance to the regulation but we all agree that no lawyer
can stay stagnant and still be successful.

I have not seen any push in the judiciary to change from Frye to
Daubert. In the judiciary there is clearly a sense that “if it isn’t bro-

HOW DO YOU ENVISION THE MENTORING PROGRAM
WORKING?

10