The Department of Justice's "Proposed Uniform Language for Testimony and Reports"

The US Department of Justice (DoJ) has "Proposed Language Regarding Expert Testimony and Lab Reports in Forensic Science." The public comment period on www.regulations.gov closes July 8. Because words are the subject of the "Uniform Language" documents, as they are styled, it may be appropriate (if somewhat tedious) to jot down a few notes in the manner of English composition teachers. Readers who want remarks on the substantive merits of the documents will have to wait. 1/ What follows is merely about clarity of expression and ugliness (words like and "his/her" and "and/or").

To begin with, an initial disclaimer, boxed and bolded in the original, reads as follows:

This document provides examples of the scientifically-supported conclusions and opinions that may be contained in Department of Justice reports and testimony. These examples are not intended to be all inclusive and may be dependent upon the precedent set by the judge or locality in which a testimony is provided. Further, these examples are not intended to serve as precedent for other forensic laboratories and do not imply that statements by other forensic laboratories are incorrect, indefensible, or erroneous. This document is not intended to, does not, and may not be relied upon to create any rights, substantive or procedural, enforceable by law by any party in any matter, civil or criminal, nor does it place any limitation on otherwise lawful investigative and litigative prerogatives of the Department.

What would a careful copy editor have to say about this?

• First sentence. The documents do not give examples of scientifically-supported statements. They give (1) examples of conclusions and (2) sometimes specify the kind of scientific support that would be needed for some of them. The toxicology "Uniform Language" document, for example, refers to "analytical findings" without regard to the scientific basis of the analyses. Surely not every conceivable analytical method is scientifically adequate. (As I said at the outset, this is just a problem with the wording of the introductory disclaimer. I am not suggesting that the analytical methods currently employed by DoJ toxicologists are invalid. In fact, separate "Supporting Documentation" asserts that every one has been validated. However, the introductory statement refers to "this document," and the Uniform Language document does not constrain the range of conclusions about "analytical findings" to scientifically supported ones. In comparison, it states that "[t]he examiner may report and/or state the pharmacokinetic and pharmacodynamic effects of drugs and poisons based on data published in peer reviewed literature or other authoritative sources.")
• Second sentence. "The examples are not intended to be all inclusive" of what? Of "the scientifically-supported conclusions and opinions that may be contained in Department of Justice reports and testimony"? Presumably, this clause is meant to say that "The list of permissible statements is not exhaustive. Other statements might be acceptable."
• Second sentence (con't). "These examples ... may be dependent upon the precedent set by the judge or locality in which a testimony is provided." Stilted language ("may be dependent on") aside, the examples are examples — regardless of local law. The scientifically supportable ones in "this document" are examples of scientifically acceptable statements for the field without regard to their admissibility. The unacceptable ones should be scientifically unacceptable regardless of what a trial judge (whose rulings are not technically "precedent" for any other case) or other judges, lawyers, or legislatures do.
• Third sentence. "[T]hese examples are not intended to serve as precedent for other forensic laboratories and do not imply that statements by other forensic laboratories are incorrect, indefensible, or erroneous." DoJ has no power to make legal precedent. That it considers specific statements unfit for use by its laboratories surely has implications. Presumably, the sentence is meant to state the obvious — that DoJ's adoption for its laboratories of this list of acceptable and unacceptable examples is not intended to require other laboratories to do anything.
• Final sentence. "This document is not intended to, does not, and may not be relied upon to create any rights, substantive or procedural, enforceable by law by any party in any matter, civil or criminal ... ." But any judge is free to rely on this document to create an enforceable right. Presumably, the intended meaning is that the document, in itself, does not create such a right.
• Final sentence (cont'd). "nor does it place any limitation on otherwise lawful investigative and litigative prerogatives of the Department." What is the function of "otherwise lawful"? Naturally, the draft document places no limitation on anything DoJ wants to do. Does the full sentence mean that after adopting these guidelines, DoJ lawyers and laboratory staff will be free to depart from them? I think it means that the document is for internal guidance only and is not intended to be enforceable by any litigant.

Of course, the box of disclaimers at the beginning of each documents is just boilerplate. But skimming a couple of the Uniform Language documents also shows room for improvements in the mechanics of the writing. Here are some examples:

• Extensive use of the barbarism "and/or" 2/ and an occasional "his/her." 
• The phrase "[a]n examiner may state or imply" is common. Inasmuch as any examiner who legitimately may state that a proposition is true also may imply that it is true, "may state" the phrase "or imply" is surplusage. 3/
• Another common locution is "This document provides the acceptable range of opinions expressed in both laboratory reports and during expert witness testimony ... ." I think this is intended to state that "This document specifies the range of opinions that examiners may provide in laboratory reports or expert testimony." (It is not the "range" that is acceptable — it is the opinions.)
• The last statement is always qualified by the clause "while acknowledging that this document cannot address every variable in every examination." The qualification seems pointless or obscure. What does "address" mean here? Who would have imagined that the Uniform Language documents are supposed to address "every variable" in every forensic test, method, or analysis? If attention should have been given to an important "variable" but was not, how can we know that the range of opinions allowed is appropriate?

NOTES

1. Update: Remarks on a few of the discipline-specific documents are at

• Proposed Uniform Language for Forensic Toxicology, June 6, 2016, http://for-sci-law.blogspot.com/2016/06/proposed-uniform-language-for-forensic.html;

2. Bryan A. Garner, A Dictionary of Modern Legal Usage 56 (2d ed. 1995) (observing that "and/or has been vilified for most of its life—and rightly so. ... 'the only safe rule to follow is not to use the expression in any legal writing, document or proceeding, under any circumstances.'") (quoting Dwight G. McCarty, That Hybrid "and/or," 39 Mich. State B.J. 9, 17 (1960)); Leslie O’Flahavan, Is Using "and/or" in a Sentence Just Plain Dumb?, Jan. 25, 2010, http://ewriteonline.com/writing-matters/2010/01/using-andor-in-a-sentence-is-just-plain-dumb/ (surveying advice from journal editors and others and concluding that "the verdict is in: and/or is JPD (just plain dumb)").

3. The situation with "may not state or imply" is different.