Setting limits on judicial scientific, technical, and other specialized fact-finding in the new millennium

In Kumho Tire Co. v. Carmichael, the Supreme Court significantly broadened the scope of the judicial gatekeeping role previously set forth in Daubert v. Merrell Dow Pharmaceuticals, Inc., holding that federal district judges must ensure that all admitted scientific, technical and other specialized e xpert testimony is both relevant and reliable. Faced with the challenge of making scientifically, technically, and legally sound admissibility determi nations, many generalist trial judges will inevitably be tempted to educate themselves on the nature and substance of the complex matters requiring th eir attention. While some judges may rely on court-appointed technical advi sors, scientific reference manuals, or privately sponsored judicial seminar s for assistance, other judges may venture into cyberspace, review scientif ic journal articles not presented by the parties, or consult colleagues off the record. However, the extent to which judges can properly engage in suc h practices has become a matter of great debate and uncertainty due to the divergent teachings of Kumho, the Code of Conduct for United States judges, 28 U.S.C. 144 and 455 (the federal judicial disqualification statutes), an d the Federal Rules of Evidence. In his Note, the author examines the recently broadened scope of the judici al gatekeeping role in light of the competing ethical and legislative force s that seek to limit a judge's active involvement in the scientific, techni cal, and other specialized fact-finding process. The author argues that the Judicial Conference of the United States, Congress, and the Supreme Court should modify the Code of Conduct for United States Judges, 28 U.S.C. 455, and Federal Rule of Evidence 104(a) to prohibit sua sponte, ex parte commun ications by judges who seek to acquire case-specific scientific, technical, or other specialized evidence not presented by the patties. The author con tends that peen if such independent factual inquiries by judges may increas e the likelihood of "correct" admissibility determinations, such activities run counter to the spirit of our judical system, which encourages the vigo rous adversarial presentation of evidence and affords all parties unbiased and impartial gatekeepers.