Thursday, September 1, 2011

Your Money or Your Life

As I said yesterday, there's something else beside the usual so-you-affirmed-a-death-sentence-what-else-is-new about State v. Lang. Unfortunately, I have to dip into the arcana of evidence law, and quote a chunk of trial testimony, to explain.  Here's the trial testimony as reproduced in the opinion.
{¶ 65} Michele Foster provided expert testimony about the DNA found on the handgun used in the killings. She stated that DNA was detected from “at least two individuals” at three different locations on the handgun. The prosecutor then questioned Foster about the comparison of Lang’s and Walker’s DNA with the DNA found on the handgun:
{¶ 66} “Q: Do you have an opinion as to a reasonable degree of scientific certainty as to whose DNA appears on that handgun?
{¶ 67} “A: In this particular case, we can say that Antonio Walker is not the major source of DNA that we detected from the swabbing of the pistol.
{¶ 68} “In this case we, based on our comparison, we can say that Edward Lang cannot be excluded as a possible minor source to the DNA that we found on the weapon.
{¶ 69} “Q: When you say not excluded, what do you mean by that?
{¶ 70} “A: Well, in this particular case, because we had such low level DNA, we can’t say to a reasonable degree of scientific certainty that this person is the source.
{¶ 71} “In this particular case, the chance of finding the major DNA profile that we found on that pistol is 1 in 3,461,” meaning that “1 of 3,461 people could possibly be included as a potential source of the DNA.”
The part to pay attention to is the prepositional phrase
to a reasonable degree of scientific certainty.
If you go to law school and study evidence law (which apparently and bizarrely and stupidly many law students never do), you learn that it's one of the touchstones of expert testimony.  An expert's opinion is to be given
to a reasonable degree of scientific certainty.
So we're trained to ask the question asked here in paragraph 66.
Do you have an opinion as to a reasonable degree of scientific certainty . . . ?
We expect the answer to be "yes."  Then we go on to ask what that opinion is.  But it's all about getting to the 
reasonable degree of scientific certainty.
Except, here the answer was
No, can't do that.  But I can tell you what's possible.
Uh, no.  You're not supposed to do that.  At least, that's the rule we all learned.  It's the general rule.  It's the right rule (because, really, anything is possible - some things are just far more likely than others - and are actually understood based on, say, science.  Other things, well there was that Texas case where they found probable cause because Jesus and the angels spoke to the prophetess so naturally.
Anyway, the evidence came in, Lang was convicted and sentenced to die, and the case went to the Ohio Supreme Court which said that expert evidence of possibility was just peachy keen.
They'd laid out that rule before, in Joe D'Ambrosio's case.  (You remember Joe.  He's the guy who even the dissenter agreed was a victim of repeated lying and cheating and stonewalling by the state of Ohio.  But that was something only the federal courts cared about.  We're talking now about the Ohio Supreme Court in State v. D'Ambrosio, Joe's direct appeal (citations omitted)
While several decisions from this court indicate that speculative opinions by medical experts are inadmissible since they are based on possibilities and not probabilities . . . we believe that the better practice, especially in criminal cases, is to let experts testify in terms of possibility. . . .  Evid.R. 702 allows expert opinion that "will assist the trier of fact to understand the evidence or to determine a fact in issue."  Here, Dr. Balraj's testimony helped the trier of fact to understand that, despite contrary appearances, the size of the wound was consistent with the size and shape of State's Exhibit 8A.  Although Dr. Balraj's testimony does not prove that State's Exhibit 8A was the murder weapon, we believe that is an issue of sufficiency, not admissibility.
To which you can say,
Well, maybe.
Except for the one parenthetical.
[E]specially in criminal cases.
Because, see, in civil cases the evidence still has to satisfy that reasonable degree of scientific certainty standard.  And that's the issue Lang's lawyers picked up on as they raised a claim under the Equal Protection Clause of the 14th Amendment.
No State shall . . . deny to any person within its jurisdiction the equal protection of the laws.
The short explanation of equal protection law is that the law must treat everyone the same.  And because if Lang were a defendant in a civil case that DNA testimony would not have been admissible, the state shouldn't get to admit it in this case.
To which the Supreme Court of Ohio said
Pish tosh.
Sure the rules are stricter in civil cases.  But that's because there's so much more at stake in civil cases.
OK, that's not how they phrased it.  Here's how they phrased it.
The Equal Protection Clause of the Fourteenth Amendment to the United States Constitution, Section 1, commands that no state shall “deny to any person within its jurisdiction the equal protection of the laws.” The Equal Protection Clause does not prevent all classification, however. It simply forbids laws that treat persons differently when they are otherwise alike in all relevant respects. Nordlinger v. Hahn (1992), 505 U.S. 1, 10, 112 S.Ct. 2326, 120 L.Ed.2d 1. Lang’s equal protection argument can be rejected because criminal defendants and civil litigants have vastly different stakes and concerns and are not similarly situated. See Mason v. Home Depot U.S.A., Inc. (2008), 283 Ga. 271, 274-275, 658 S.E.2d 603 (rejecting equal protection claim challenging more stringent requirements for admission of expert testimony in tort actions than in criminal cases).
Which is pretty much the same thing.
Oh, of course the folks in Columbus had to search pretty hard for law saying that they can provide less protection to someone facing death than to someone who might have to cough up some cash.  And they found it in Mason, that Georgia case.  The thing is, Mason only gets where the folks in Columbus (Ohio, not Georgia) took it if you do some serious ignoring of why it doesn't apply. 
Mason sued Home Depot over injuries he said he got using a floor covering product he bought there (sued the manufacturer, too).  The defendants wanted to stop Mason's expert doctors from testifying, and under a special law Georgia enacted shortly before trial, they could do that.  Because even though they would have been allowed to testify in a criminal case, the rules for tort cases were stricter and kept the evidence out.  Mason argued that he was being denied equal protection because he couldn't put on evidence that he could have used had he been a criminal defendant.
Said the Georgia Supreme Court:
From the foregoing, we conclude that, for purposes of evidentiary standards, only those accused of the same offense are similarly situated in the criminal law arena, only those asserting or defending against the same cause of action are similarly situated in the civil law arena, and the parties to civil cases are not similarly situated to those engaged in criminal prosecutions.
So, yeah, that's the rule they cooked up.  But even if it's valid (though it strikes me as designed to be outcome determinative rather than constitutionally cogent), rules don't occur in vacuums.  Context matters.  A lot.
And, simply, there's a big difference between saying that you can exclude something that a private litigant wants to use to prove his claim in a civil case when it's deemed unreliable but you have to let the government use equally unreliable evidence to prove its claims in a criminal case.
Put everything else aside.  Criminal defendants have special rights provided by the Fifth, Sixth, and Eighth Amendments.  The idea is that the balances are supposed to be tipped in their favor.  Not so civil plaintiffs.  But applying the Mason reasoning to criminal defendants violates that underlying principle.
Still, when you look at how much is at stake . . .
Criminal - life and liberty
Civil - cash
You can understand why the courts would think civil matters are far more weighty and deserving of extra protection.
As you'll recall, the court affirmed Lang's death sentence.
Did I mention that sometimes it's just embarrassing?
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  1. It's the disfavored litigant rule. Whoever is on the opposite side of the government, the insurance company or the bank loses the point.

    It's very consistent and easy to understand. What's the problem?

  2. Playing the devil's advocate, it seems a civil litigant could have an expert, say an epidemiologist, testify "to a reasonable degree of scientific certainty" that it's 51% likely that an exposure caused the plaintiff's disease (supporting recovery under the civil preponderance of the evidence standard). Similarly, in the Lang case, it seems the expert could have testified "to a reasonable degree of scientific certainty" that "1 of 3,461 people could possibly be included as a potential source of the DNA."

  3. People can lie and bullshit their way through all sorts of things. Courts are supposed to rule on what things are rather than what they're called, which means that they're supposed to look at the substance of what's being said rather than the phrasing.

    But really, this isn't a post about expert testimony. It's a post about the rule of law and respect (or lack of it) for the principles that are supposed to govern our system but all too rarely do.

  4. People can lie and bullshit their way through all sorts of things.

    Finally! Truth at last. What a relief.

  5. What if the defendant needs to introduce evidence of probabilities, such as evidence that a possible third-party perpetrator "cannot be excluded" as a source of the dna?

  6. It's probably going to be true to a reasonable degree of scientific certainty that the third-party guy cannot be excluded.

    Beyond that, there's a general principle that the defense has a greater right to present evidence than the state does. Consider hearsay. The Confrontation Clause prohibits the state from introducing testimonial hearsay because the defendant has a right to confront his accusers. The state has no constitutional right to confront anyone. Indeed, the state has no constitutional right to due process or much of anything else. The protections are all for the benefit of the accused.