Time Will Tell

At  Above the Law a while back, Mark Herrmann explained why old lawyers were always seeing problems where newer lawyers saw none.  They had the misfortune of experience, having been there, done that, and learned the hard way how ideas that seemed so good at the time ended up in the toilet. 

Whether it was because of the certainty that nothing could possibly go wrong, or merely the manifestation of the ancient legal maxim, stercus accidit, it happens.  Old lawyers experienced it. Young lawyer had yet to, and were unpersuaded that there was any reason to doubt their certainty.

At Tempe Criminal Defense, Matt Brown provides another remarkably astute observation about scientific expert witnesses.

Expert one is young and arrogant. He has no practical experience. He testifies to scientific “facts” that seal a person’s fate. He grudgingly acknowledges that science is not absolute, yet he speaks in nothing but certainties when it comes to each and every fact weighing in favor of guilt. He insists that his “science” is infallible and that things must be a certain way. He uses big words to build even bigger claims.

Expert two has a half-century of practical experience, and he more or less founded his field of study. He’s conducted over fifty clinical trials involving the type of thing to which he’s testifying. He has academic and professional credentials that can’t be beat. He testifies that things are complex and that no reputable scientist would ever dare to make the ridiculous claims expert one did.

Expert one wins. Every time.

Absurd? Sure. Crazy? Not exactly. On the “win” side, Matt notes that juries want nothing to do with knowledge or understanding. They want to be spoon fed answers upon which they can rely without a further thought.  Remember,

There is no expedient to which a man will not resort to avoid the real labor of thinking.

–Sir Joshua Reynolds

This is human nature, the desire to make sense of a confusing and troubling world.  If you didn’t blindly believe in science, would you let some guy you don’t know stick a needle in your arm and inject a fluid of unknown origin?  Would you drive across a structure suspended hundreds of feet in the air over large body of water?  Would you drive at all?

By its very nature, science is fluid. Reputable practitioners gather measurable evidence and subject it to specific principles of reasoning. From that, they develop theories to test and retest. They gain knowledge, but they don’t produce “facts” beyond the empirical data of the studies themselves. They gain knowledge and produce other theories which each must then be tested and retested. Validation does not create truths, but rather principles at best. Outliers exist. They may be explained, but that process too requires more testing and analysis. When the reason for discrepancies is explained, it isn’t much more absolute than the initial hypothesis. It’s a tendency, an assumption, or at best a theory. It certainly isn’t a “fact” by any stretch of the imagination.

Scientific method is rigorous and never ending, when done right.  It’s also not a particularly interesting subject to most people, whether they go to elementary school, judge school or pre-trial hearings in Troy, New York.  For those who cared, we can remember when fingerprints proved identity beyond dispute.  And then some more points were needed, And some more. And then we realized that it was all subjective crap, only as good as the bias of the overworked examiner who was expected to tell the prosecutor what he wanted to hear to receive his police department paycheck. 

For a long time, there was certainty. Then less so about what came before, but certainty that now they had it right. And again.  And when prints are used today, knowing all we know about the problems and flaws, it will still be presented as conclusive.  I often muse about the day they figure out that DNA can’t conclusively prove identity. Or the day a judge certifies a cop as a “duct tape expert,” with every bit as much expertise behind him as the cop who can “interpret” wiretapped conversations between drug conspirators.

We know better.  Or at least we will know better some day, when we’ve experienced enough of life to be painfully aware of how little is certain and how much can go wrong.  We used to reiterate Benjamin Franklin’s words, that nothing was certain except death and taxes.  Of course, he was old. And a scientist. Rarely are his words uttered anymore.

In an increasingly complex world, people seek refuge in the quick, easy and certain.  Not only does it allow us to function, but it saves us from getting a splitting headache thinking hard thoughts about things that don’t really interest us.  As I’ve been told with great frequency by young lawyers whose names are rarely known, they know everything there is to know and my old man admonitions, like Mark Herrmann’s, only serve to bolster my one virtue of experience and to diminish their certainty. 

Scientific method is for doubters.  Tolerance for ambiguity is for old men.  Thinking is a waste of time.  We love it when someone tells exactly what something is, without equivocation, nuance or reservation.  For all its complexity, we live in a simple world if only we embrace being told what we think by people who are absolutely certain that they are right and there could be no doubt whatsoever. Jurors love it. Young lawyers love it.  Curmudgeons, not so much.

8 comments on “Time Will Tell

  1. Onlooker

    “I often muse about the day they figure out that DNA can’t conclusively prove identity.”

    I’ve had exactly the same thought as I’ve become more skeptical, even jaded, in my older age. Who knows, right? But it sure would suck to find that out later; at least for some poor schmuck locked up in error.

    It really can be difficult to argue against those with such certainty. Makes things so messy too.

    I guess you can put me in the curmudgeon category. LOL

  2. LTMC

    Scott, I enjoyed this comment in particular:

    “I often muse about the day they figure out that DNA can’t conclusively prove identity.”

    I work as a research assistant for a professor who is trying to demonstrate that DNA evidence of racial genomic probability is unreliable. To quote the man, from a 2009 article: “Race…remains a purely social construct. Scientific evidence that claims the ability to biologically discern race should therefore be rejected by courts as irrelevant, unreliable and unfairly prejudicial.”

    Unfortunately, courts regularly allow this junk science in because so few people deal with this issue in any depth. And as you’ve noted on prior occasions, judges don’t have to be experts; they only have to (allegedly) know how to recognize one based on objective factors. And that’s how we get a guy like Paul Cassell being recognized as an “expert” on false confession data, while the defense’s expert witness is banned from testifying to the same effect.

  3. Rick Horowitz

    I’m involved in a case alleging my clients “knew or should have known” they were supposedly selling counterfeit sports jerseys. The “expert testimony” so far comes from a cop who, “based on [his] training and experience…know[s]” that counterfeit sports jersey sellers typically charge $70 per jersey.

    I’m wondering what’s going to happen when we go into court and show that those exact same jerseys are selling on the official NHL website for around $70.

    “Expert witnesses,” it seems to me, is one of the bigger perversions in the criminal “justice” system.

  4. SHG

    It never ceases to amaze me how police are experts at so very many things. I know they are experts because the court tells me, over and over. And there is almost nothing that they aren’t expert about, based on their “training and experience.”  Really, we should pay them much more than we do for all they have to offer.

  5. John Neff

    At one time I read a lot of expert testimony in environmental law cases. From a teaching of science and technology point of view it was a very valuable source. In general I was very impressed by the quality of the testimony by both sides of the issue.

    From an expert testimony point of view that would be the high ground. Risk assessment in my opinion would be the pits.

  6. Leo

    My limited “training and experience” has showed me that “training and experience” is police code for “I am making this up”.

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