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.
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,
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.
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?
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.
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.
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.