Scientific Method and Trick Questions

Jamison Koehler posts about a CLE he attended that included a breakout session on the cross of the chemist.

[Presenter Ed] Shacklee was talking about how intimidating it can be for a non-scientist to cross-examine a government chemist.  Sometimes we also have to deal with a cranky judge who is annoyed with us for dragging the whole thing out:  The test shows that it was a controlled substance.  Why are you wasting all of our time?

But it can and should be done.  You focus on a few areas in which the government is vulnerable. And then you do it again and again, each time learning from your mistakes the previous time.

Excellent, yet sad advice. There is much truth in the fact that we learn from each experience, and eventually, become sufficiently competent that we can become effective.  Of course, it helps to begin with a solid base of knowledge in the subject area, ranging from scientific method to learned treatises and the inherent flaws of accepted testing methodologies.  These are all available for any lawyer interested enough to look for them, and don’t require a post-doctoral degree to appreciate.

But as Jamison raises via the great showman, Irving Younger, “you need at least 100 trials under your belt before you can really call yourself a trial attorney.”  Even with the effort of learning, if not mastering, the science behind the testimony, the ability to conduct an effective cross, especially of an expert, doesn’t come from a book.

Having enjoyed lectures by Irving Younger at Cornell, I can attest to his ability to captivate an audience with his drama, if not his content.  If only he could dance.

But Jamison goes on to raise a dubious approach that offers some surface appeal:

Private attorney Scott DiClaudio used to wait until the government spent all sorts of time qualifying a police officer as an “expert.”  His first question would then be:  How many grams are there in eight-ball?  Sometimes it was even more basic:  How many grams are there in an ounce?  I never once saw him use this tactic unsuccessfully.  Suddenly the “expert” didn’t seem quite so formidable.  Suddenly he didn’t look quite so smug.

Tricks like this are great when they work. The problem is that they don’t always work.  While some cooks are aware that there are 28.3495 grams in an ounce, many are not because Americans generally suck at the metric system.  Would it shock a jury if the testimony was “beats me, it’s not something I’ve ever needed to know”?

But the eight-ball question is even more problematic. Shockingly, not everybody knows what an eight-ball is (it’s an eighth of an ounce, and a commonly used drug term) because not everybody buys cocaine.  The correct answer is 3.5 grams, but would you know that?

So what if the police officer “expert” testifies in response to the eight-ball question that it’s 5 grams?  Clearly wrong, but there is an excellent chance the no one on the jury will know.  And then what?

Ask the judge to take judicial notice that the expert’s response was wrong? While a judge might do so when the question involves standard units of measurement, no judge will ever take judicial notice about the meaning of a drug term.

Announce to the jury that the expert is a blithering idiot? The lawyer isn’t a witness, a point that most clients find troubling since they tend to expect that the lawyer will stand up, just like they do on TV, and offer their story and attack the story of the other side, without their ever having to utter a word or leave their seat.  They’re shocked to learn that lawyers can only argue facts in evidence, and evidence is what comes from the mouths of witnesses.

Retain a defense expert and call her as a witness for the sole purpose of testifying that the expert’s eight-ball testimony was wrong?  Not only has the jury long since forgotten the irrelevant prosecution testimony, but it highlights the lack of a defense, since the best the defense can do is pick on some puny, inconsequential detail after the expert has given persuasive testimony about the substantive drugs involved in the case. Plus, does the defendant have the wherewithal to retain an expert? Can an expert be found in the midst of trial? Not too often.

To be clear, clients adore gimmicks. They truly believe that trials are little more than charades where the side with the best tricks prevails.  Tell a defendant of your plan to trick the expert and make him come off as the fool and watch the defendant’s face light up.  But you may also see that smile turn upside down if the trick falls flat.

I’ve used gimmicks. Every trial lawyer gives them a try, and the feeling when they work is fantastic. Everybody loves beating the system.  But I’ve seen them fail as well. And I’ve seen them backfire. And I’ve seen them backfire with devastating effect.  Nobody likes to talk about how a really cool trick question ends up burning the defendant, so I will. It happens. And after it happens, you can’t unask the question.

Before relying on a trick question to beat a witness, consider whether the value of it succeeding is greater than the harm it might do if it fails.  And never rely on a trick alone, even if someone tells you it never fails. You still need to learn, know, and be able to use, substantive knowledge of the testimony and cross.  Just in case this trial, this defendant, is the one where the gimmick doesn’t save the day.

12 comments on “Scientific Method and Trick Questions

  1. Jim Majkowski

    Why am I reminded of the old punchline, “I saw him spit it out?”

    Please keep up the terrific work; I love it.

    1. SHG Post author

      That went through my mind too. I was going to put it in, but it’s the punchline to not asking one question too many, and I didn’t want to mix my metaphors.

  2. mirriam

    That’s the problem though, isn’t it? We run down alleys thinking they are avenues and come up against dead ends more times than not. I remember going to NCDC and leaving thinking there wasn’t a case I couldn’t win on some ‘trick’ or other, then quickly learning that it wasn’t going to be that way. But the stories – the war stories of people coming out from under with these things they are too good to pass up. Why should I be the play it safe lawyer when those who win are the ones who have nifty defenses and clever antics?

    I love Irving Younger and even though I hardly ever get to go to trial, when I am on the brink I go back time and time again. There is something soothing in it, to know that there are things we can do even when it seems there isn’t anything we can do. At the end of the day we just need to prepared for anything.

    1. SHG Post author

      There is nothing wrong with learning some nifty tricks, provided you understand that they don’t/won’t always work and they aren’t a substitute for good lawyering, research or serious thought.

  3. Ultraviolet admin

    It’s amazing how many lawyers I talk with that do criminal work that are scientifically illiterate. The good ones are doing research now into knowing how stuff works just so they can know when to ask a question, but you’re correct it’s about experience as much as anything else. A potentially big one in Cali used to be in Marijuana cases the weight and if it hit the felony level. Careful reading specifies what is and is not allowed to be counted, and it turns out the crime labs would measure the whole thing and not take out steams and seeds that aren’t suppose to be counted.

    Or for a more typical DUI case, knowing how a breathalyzer works, what your home jurisdictions has, and what the calibration requirements are pretty important since they tend to be pretty detailed and sensitive. I know one lab ended up having bad numbers due to the hand sanitizer being too close to where they calibrate them.

    1. SHG Post author

      Yup. It can be the smallest of things, like the way safety glass on a car shatters when struck by a bullet. Assumptions aren’t good enough, as it’s not always what you would think. You need to know the science, and be ready to question it and prove it.

      1. Ultraviolet admin

        And one of the big problems is the lawyers who do know the science before law school are rarely attracted to defense work. Gotta admit I’ve got a very good science background (physic and chemistry), but I’m in IP, because IP is an easier business to pay off my loans.

  4. Fubar

    A couple decades ago a friend defended a poor immigrant charged with raising and selling fighting cocks. In fact, defendant had a chickenyard full of male bantams. Defendant routinely obtained immature male chicks cheaply or free, because farmers wanted hens. He then performed surgery well known to peasants the world over, and raised the bantams for food.

    Trick question for the state’s star Department of Ag witness: Did you determine whether the chickens you seized were capons?

    Answer: “What’s a capon?”

    1. earlwer

      Superman, Batman and a few other super-heroes.
      Unfortunately, Thunderhead, Strato Girl, Meta Man, Dyna Guy and Slashdown all had capons which caused their demise.
      Just ask Edna Mode. She knows.

      Which suggests an entirely different line of thought. Superheroes are not chickens, so why the capons?

  5. scott diclaudio

    I bumped into Judge Kosinski and he told me to read this article.
    Awesome. Made me smile. I have the notes of Testimony to four so called “experts” who were disqualified over the last few years, however, I hadn’t realized anyone noticed! Thanks for the memories.
    And, while not trying to be self-serving, … great piece!
    Be well,

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