Friday, September 7, 2012

None Dare Call It Bullshit

But my guy's gonna say it ain't so.  That's reasonable doubt, so I can't be guilty.  Ain't taking no deal.
We've all heard that from our clients.  And then we've watched them hauled off to the pokey because, well, as I've said repeatedly, trials are about proof and proof is whatever the jury believes.  And the jury tends to believe the cops and the alleged victims rather than, say, the defendant's mother or best friend.
But there is this thing about reasonable doubt.  Not just any old doubt.  Reasonable doubt.  And the proof is supposed to be beyond it.
I've been reading (slogging, might be a better word) through the transcript of a capital trial, but really, it could be any trial, civil or criminal.  There are expert witnesses on both sides.  Each is highly credentialed.  And each is determined by the court to be an expert in the same field.*
Each looks at the same evidence.  Defense expert says A.  State expert looks at the same stuff and says not A.
The jury goes back to deliberate.
Guilty or not guilty?
The outcome rests on whether it's A or not A.
The jury has been told it can believe all, some, or none of what any witness has to say.  But it cannot find the defendant guilty unless the state proves guilt beyond a reasonable doubt.  That is, the jury must be convinced, beyond a reasonable doubt, that the state's witness expert is right, that not A.
Here are the three possibilities:
  1. One expert is incompetent.
  2. One expert is a liar.
  3. Experts disagree.
Let's consider those in turn.  
Both experts have credentials, as they say, up the wazoo.  Degrees, affiliations, experience.  Neither side disputed the expertise of the witness on the other side.  And the judge, the authority in the courtroom made specific findings, aloud and on the record in front of the jurors, that each is in fact an expert.
Have the jurors any basis on which to believe one incompetent?
No.  A juror who thought one or the other expert incompetent wouldn't be following her oath.
Sure, could be.  Witnesses lie under oath all the time.
Cops do it so much there's even a term for it.  It's called testilying.
Now, there are experts and experts.  Some really are whores who'll say whatever they're paid to say.  But there aren't many of them and they don't last long because, frankly, it's obvious.  They're charlatans and mountebanks and everyone can see it.  Competent lawyers don't use them because they won't help.
And serious experts, they don't want to damage their reputation by selling it to the highest bidder.
These two guy looked at the same stuff and just interpreted it differently.  They have specialized training the jury doesn't have.  Education, affiliations, experience.  One says it's flu the other says pneumonia.  One says the widget was badly manufactured, and here's why.  The other says the widget was just fine until the frazmut smashed into it, and here's how I can tell.
Maybe that mushroom is poisonous.  Maybe not.
Maybe global warming.  Then again, maybe it's just getting hotter.
Some years ago, I sat on a jury in a civil case.  The issue, the only issue, was whether the fact that the plaintiff was in more pain after the accident than before was a function of the accident or a coincidentally timed consequence of an earlier injury. 
There were opposing experts.  One we concluded was a whore.  The other admitted cheating the defendant.  One might have been right.  I suppose one has to have been right, in the same way that a stopped clock is right twice a day.  I mean, their positions were X and not X.  So sure, however dishonestly they came to their conclusions, one was right.  It's just that there was no way to tell which one.
Except, she was in more pain after the accident than before.  With no reason to believe the expert who said coincidence, the likelihood was that the accident caused the pain.  Accidents, after all, will do that.
Here's the thing, though.  Civil cases are decided by a preponderance of the evidence.  More probable than not.  She didn't have to prove beyond a reasonable doubt that the accident did it.  If she'd had to prove that, we'd have voted against her. 
End of Anecdote
OK, here's the point.
We look to experts because jurors aren't competent to answer the question.  Is it cancer or a calcium deposit?  Damned if I know.  The jurors really can't tell, either.
Yet they have the job of deciding whether it's proved beyond a reasonable doubt.  When the oncologists disagree.
In an honest system, we'd acknowledge that the state simply hasn't proved it unless one of the experts is believed, beyond a reasonable doubt, to be flat out lying.
Not wrong.
And we'd ask the jury to make a special finding.  If they didn't say 
Fucking asshole lying sack of shit,
then it would have to be Not guilty.  No matter what they decided.
Our legal system doesn't live in that world.  We ask jurors to decide whether the skull fracture was caused by a bat or an auto accident, whether the accused has mental retardation, whether the guy will be dangerous in the future, whether the baby was dropped or thrown. Whether the DNA was his or not.
And, and here's the bottom line.
They can't.  
And yet we send men to death row because of what they say.
In their ignorance.

*For any non-lawyers reading this, that's a standard thing.  The lawyers put forth the purported expert's credentials in order to show that the person is, in fact, an expert and asks the judge to make that finding which allows the witness to offer opinions within her field of expertise.


  1. We look to experts because jurors aren't competent insert period and continue with the rest of the essay.

    The real miracle is that the system isn't in worse shape than it is already. Get some poor fool in front of a jury that has more tattoos than teeth and it's little wonder that they can't come to a rational decision.

    And the business with the experts? Spare me. You go and find a real scientific expert on whatever subject you like. I'll find an out of work, red hot actress, get her some credentials from an on line university in Panama and train her in what to say and how to out argue an attorney - which isn't all that hard for her, given that she's prettier than a Spring day in a Norman Rockwell painting and hotter than a five dollar pistol on Saturday night - and the jury will stop listening to your side just as soon as she parks her cute little caboose on the hot seat.

    And, in case it escapes you, most expert witnesses are uglier than the back end of a Tijuana Taxi. The real ones, anyway.

  2. As a science-and-engineering type guy, the prospect of dueling experts fills me with existential angst. I mean, science and engineering, those aren't squishy fields of knowledge. We have known facts and right answers. So how does stuff like this happen?

    My gut reaction, based on how things usually work outside the courtroom, is that there is rather a lot more lying than you allow for. Not so much lying about the facts or the science or even about the expert's conclusions, but about the degree of certainty in those conclusions. One expert may look at a depressed skull fracture and think " accident," and the other expert may look at the same fracture and think " bat." But my guess is that -- far more often than they admit -- they aren't really certain beyond a reasonable doubt.

    1. I'm not sure it's lying. More like giving limited answers. They don't talk about error rates and variances unless they're asked or it will help their side, and too often they're not asked.

      On the other hand, the legal measure with which they're supposed to state their conclusions, is that they're true "to a reasonable degree of [scientific/medical/engineering/whatever] certainty." Not beyond a reasonable doubt.

      On the third hand, fingerprint examiners, who have no error rates because their purported expertise has never been properly evaluated, will frequently claim that their conclusions are absolutely correct. I've heard more than one say that when he's convinced, it's simply not possible for him to be wrong. Sad to say, they're probably not lying when they say that. They actually believe in their own infallibility. (I suspect that's what they're taught by their trainers.)

  3. When I wrote that comment, I actually had in mind some of your earlier comments about fingerprint examiners. I guess that could be incompetence rather than lies.

    I was also thinking about gang cops, who testify that the defendant was wearing gang colors, a gang hat, gang socks, had multiple cell phones as gang members are known to do, spinning rims on his car, listened to gangsta rap... I don't know how that stuff gets in...

    1. It's the rule that says if it helps show the defendant is a bad guy it's admissible. It's in the invisible ink footnote to the Sixth Amendment.

  4. I remember the first time I heard a prosecutor argue that if the court didn't allow him to elicit the challenged testimony, he would be unable to prove his case. Involuntary laughter emitted from my mouth. The judge then corrected him and stated, "don't you mean that you are seeking to introduce this as background evidence, and not for the truth of the matter, counsellor?"

    Yes. That's what he meant. Exactly.

    1. Verdict first - trial afterwards, as the Queen did not quite say.

  5. Actually, any defense lawyer worth his salt know he can consult expert after expert until he finds the one willing to support the defense theory. And you don't have to disclose that you settled on that one only after the first six told you what you didn't want to hear -- a real boon to the defense, which (unlike the prosecution) has no duty to disclose experts who reject your position.

    1. Sure, you can find a whore (though unless you've got unlimited resources, you really can't go from person to person to person until you stumble across one.) But it's a lousy tactic that will mostly come back to bite you, won't do your client any good. And I hate to break this to you, but the government sometimes cheats and doesn't reveal the information it's supposed to. Shocking, I know.

  6. If we ever want the jury process to produce more accurate results in this type of case than an opinion poll or an election, we must have jurors who can evaluate the science themselves. I would like to see a rule that in any case that hinges on a scientific theory such as "product X caused my client's cancer", at least four of the 12 jurors must be credentialed experts in the relevant field of inquiry, and most of those expert members must concur in any verdict for the plaintiff.

  7. I served on a jury for a civil case about an eminent domain seizure in which a property owner was contesting the value that the county said his land was worth. The meat of the argument came down to expert testimony from each side's real estate appraisers, and it was practically impossible for the jurors the know which appraiser's valuation was more realistic. As you might expect, the county spent quite a bit of time denouncing the credibility of the citizen's appraiser and his methods. But the citizen's attorney demolished the county's case with a single question to his expert witness ... "how many times has the county used you as THEIR expert witness for real estate valuations in the past". Dozens of times. I hope the property owner was happy with the outcome.