junk science on trial
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Quality of the Evidence and Reliability of the ConvictionTRANSCRIPT
Junk ScienceJunk ScienceJunk ScienceJunk Science
Quality of the Quality of the Evidence and Evidence and Reliability of the Reliability of the Conviction Conviction
Science is Science is EverywhereEverywhere
Science is Science is EverywhereEverywhere
Justice Breyer noted the pervasive use Justice Breyer noted the pervasive use of expert witnesses in modern litigation: of expert witnesses in modern litigation:
"Scientific issues permeate the law. "Scientific issues permeate the law. Criminal courts consider the scientific Criminal courts consider the scientific validity of . . . DNA sampling or validity of . . . DNA sampling or voiceprints, or expert predictions of voiceprints, or expert predictions of defendants' 'future dangerousness,' defendants' 'future dangerousness,' which can lead courts or juries to which can lead courts or juries to authorize or withhold the punishment of authorize or withhold the punishment of death." death."
Justice Breyer noted the pervasive use Justice Breyer noted the pervasive use of expert witnesses in modern litigation: of expert witnesses in modern litigation:
"Scientific issues permeate the law. "Scientific issues permeate the law. Criminal courts consider the scientific Criminal courts consider the scientific validity of . . . DNA sampling or validity of . . . DNA sampling or voiceprints, or expert predictions of voiceprints, or expert predictions of defendants' 'future dangerousness,' defendants' 'future dangerousness,' which can lead courts or juries to which can lead courts or juries to authorize or withhold the punishment of authorize or withhold the punishment of death." death."
So – what is the problem So – what is the problem with that?with that?So – what is the problem So – what is the problem with that?with that?
Science is becoming more Science is becoming more complexcomplex
Witnesses remain as fallible as Witnesses remain as fallible as everever
Counsel lack the tools to Counsel lack the tools to evaluate and challengeevaluate and challenge
Courts lack the skills to decideCourts lack the skills to decide
Science is becoming more Science is becoming more complexcomplex
Witnesses remain as fallible as Witnesses remain as fallible as everever
Counsel lack the tools to Counsel lack the tools to evaluate and challengeevaluate and challenge
Courts lack the skills to decideCourts lack the skills to decide
The ‘Junk Science’ The ‘Junk Science’ DebateDebateThe ‘Junk Science’ The ‘Junk Science’ DebateDebate
Some legal scholars, editorialists, and others Some legal scholars, editorialists, and others argued that juries must be protected from the argued that juries must be protected from the scourge of junk science. scourge of junk science.
Like-minded judges began to scrutinize Like-minded judges began to scrutinize scientific evidence closely before admitting it scientific evidence closely before admitting it at trial and to exclude evidence that did not at trial and to exclude evidence that did not meet their strict standards. meet their strict standards.
Other judges were content to rely on the Other judges were content to rely on the adversarial system to reveal any flaws in adversarial system to reveal any flaws in tendered scientific evidence. These judges tendered scientific evidence. These judges favored admitting any scientific evidence that favored admitting any scientific evidence that seemed relevant, and therefore rarely seemed relevant, and therefore rarely excluded scientific evidence before trial. excluded scientific evidence before trial.
Some legal scholars, editorialists, and others Some legal scholars, editorialists, and others argued that juries must be protected from the argued that juries must be protected from the scourge of junk science. scourge of junk science.
Like-minded judges began to scrutinize Like-minded judges began to scrutinize scientific evidence closely before admitting it scientific evidence closely before admitting it at trial and to exclude evidence that did not at trial and to exclude evidence that did not meet their strict standards. meet their strict standards.
Other judges were content to rely on the Other judges were content to rely on the adversarial system to reveal any flaws in adversarial system to reveal any flaws in tendered scientific evidence. These judges tendered scientific evidence. These judges favored admitting any scientific evidence that favored admitting any scientific evidence that seemed relevant, and therefore rarely seemed relevant, and therefore rarely excluded scientific evidence before trial. excluded scientific evidence before trial.
(1) the junk science problem is real; (1) the junk science problem is real; (2) juries are not competent to decide (2) juries are not competent to decide
complex scientific issues; complex scientific issues; (3) tightening the rules for the (3) tightening the rules for the
admissibility of scientific evidence is a admissibility of scientific evidence is a second best solution to the problem of second best solution to the problem of junk science in tort; junk science in tort;
(4) tightening the rules for the (4) tightening the rules for the admissibility of scientific evidence will admissibility of scientific evidence will not solve the junk science problem in not solve the junk science problem in criminal cases -- broader reforms criminal cases -- broader reforms (within science) are needed.(within science) are needed.
(1) the junk science problem is real; (1) the junk science problem is real; (2) juries are not competent to decide (2) juries are not competent to decide
complex scientific issues; complex scientific issues; (3) tightening the rules for the (3) tightening the rules for the
admissibility of scientific evidence is a admissibility of scientific evidence is a second best solution to the problem of second best solution to the problem of junk science in tort; junk science in tort;
(4) tightening the rules for the (4) tightening the rules for the admissibility of scientific evidence will admissibility of scientific evidence will not solve the junk science problem in not solve the junk science problem in criminal cases -- broader reforms criminal cases -- broader reforms (within science) are needed.(within science) are needed.
The Complexity of The Complexity of Science: Science: DNA AnalysisDNA Analysis
The Complexity of The Complexity of Science: Science: DNA AnalysisDNA Analysis
The advent of DNA evidence, dramatically changed the legal The advent of DNA evidence, dramatically changed the legal landscape.landscape.
The initial DNA skirmishes over laboratory protocols quickly The initial DNA skirmishes over laboratory protocols quickly morphed into fights over statistical interpretation and morphed into fights over statistical interpretation and population genetics. population genetics.
The initial technique, Restriction Fragment Length The initial technique, Restriction Fragment Length Polymorphism (RFLP), was soon supplanted by Polymerase Polymorphism (RFLP), was soon supplanted by Polymerase Chain Reaction (PCR) involving the DQ-alpha loci, which was Chain Reaction (PCR) involving the DQ-alpha loci, which was followed by Polymarkers (PM) and D1S80. followed by Polymarkers (PM) and D1S80.
These, in turn, were replaced by Short Tandem Repeats (STR), These, in turn, were replaced by Short Tandem Repeats (STR), the current procedure. the current procedure.
In addition to nuclear DNA, mitochondrial DNA analysis and In addition to nuclear DNA, mitochondrial DNA analysis and animal and plant DNA evidence have been introduced in animal and plant DNA evidence have been introduced in criminal cases, raising further evidentiary questions. criminal cases, raising further evidentiary questions.
Finally, the use of DNA databases for "cold hits" has Finally, the use of DNA databases for "cold hits" has presented its own fundamental issue: whether DNA evidence presented its own fundamental issue: whether DNA evidence alone is sufficient to uphold a conviction. alone is sufficient to uphold a conviction.
The advent of DNA evidence, dramatically changed the legal The advent of DNA evidence, dramatically changed the legal landscape.landscape.
The initial DNA skirmishes over laboratory protocols quickly The initial DNA skirmishes over laboratory protocols quickly morphed into fights over statistical interpretation and morphed into fights over statistical interpretation and population genetics. population genetics.
The initial technique, Restriction Fragment Length The initial technique, Restriction Fragment Length Polymorphism (RFLP), was soon supplanted by Polymerase Polymorphism (RFLP), was soon supplanted by Polymerase Chain Reaction (PCR) involving the DQ-alpha loci, which was Chain Reaction (PCR) involving the DQ-alpha loci, which was followed by Polymarkers (PM) and D1S80. followed by Polymarkers (PM) and D1S80.
These, in turn, were replaced by Short Tandem Repeats (STR), These, in turn, were replaced by Short Tandem Repeats (STR), the current procedure. the current procedure.
In addition to nuclear DNA, mitochondrial DNA analysis and In addition to nuclear DNA, mitochondrial DNA analysis and animal and plant DNA evidence have been introduced in animal and plant DNA evidence have been introduced in criminal cases, raising further evidentiary questions. criminal cases, raising further evidentiary questions.
Finally, the use of DNA databases for "cold hits" has Finally, the use of DNA databases for "cold hits" has presented its own fundamental issue: whether DNA evidence presented its own fundamental issue: whether DNA evidence alone is sufficient to uphold a conviction. alone is sufficient to uphold a conviction.
Social ScienceSocial ScienceSocial ScienceSocial Science
Beginning in the 1980s, the use of Beginning in the 1980s, the use of social science research has had a social science research has had a significant impact on criminal litigation.significant impact on criminal litigation.
Battered Woman Syndrome, Battered Woman Syndrome, Rape Trauma Syndrome, Rape Trauma Syndrome, Child Sexual Abuse Accommodation Child Sexual Abuse Accommodation
Syndrome (CSAAS), Syndrome (CSAAS), Child Interviewing Techniques,Child Interviewing Techniques, Munchausen syndrome by Proxy Munchausen syndrome by Proxy
Beginning in the 1980s, the use of Beginning in the 1980s, the use of social science research has had a social science research has had a significant impact on criminal litigation.significant impact on criminal litigation.
Battered Woman Syndrome, Battered Woman Syndrome, Rape Trauma Syndrome, Rape Trauma Syndrome, Child Sexual Abuse Accommodation Child Sexual Abuse Accommodation
Syndrome (CSAAS), Syndrome (CSAAS), Child Interviewing Techniques,Child Interviewing Techniques, Munchausen syndrome by Proxy Munchausen syndrome by Proxy
Social ScienceSocial ScienceSocial ScienceSocial Science
Various types of profile evidence: of Various types of profile evidence: of battering parents, drug couriers, sex battering parents, drug couriers, sex offenders and child molestersoffenders and child molesters
Neonaticide syndrome-postpartum Neonaticide syndrome-postpartum psychosis. psychosis.
The use of hypnotically refreshed testimony The use of hypnotically refreshed testimony also produced vigorous debate. also produced vigorous debate.
The related and controversial phenomenon The related and controversial phenomenon of repressed memory syndrome. of repressed memory syndrome.
the deficiencies of eyewitness the deficiencies of eyewitness identifications identifications
the existence of false confessions. the existence of false confessions.
Various types of profile evidence: of Various types of profile evidence: of battering parents, drug couriers, sex battering parents, drug couriers, sex offenders and child molestersoffenders and child molesters
Neonaticide syndrome-postpartum Neonaticide syndrome-postpartum psychosis. psychosis.
The use of hypnotically refreshed testimony The use of hypnotically refreshed testimony also produced vigorous debate. also produced vigorous debate.
The related and controversial phenomenon The related and controversial phenomenon of repressed memory syndrome. of repressed memory syndrome.
the deficiencies of eyewitness the deficiencies of eyewitness identifications identifications
the existence of false confessions. the existence of false confessions.
The Fallibility of The Fallibility of Witnesses: Witnesses: Scientific Scientific FraudFraud
The Fallibility of The Fallibility of Witnesses: Witnesses: Scientific Scientific FraudFraud
Forged fingerprints Forged fingerprints faked autopsiesfaked autopsies false laboratory reportsfalse laboratory reports perjured testimony (including perjured testimony (including
the falsification of credentials) the falsification of credentials) have all been reportedhave all been reported
Forged fingerprints Forged fingerprints faked autopsiesfaked autopsies false laboratory reportsfalse laboratory reports perjured testimony (including perjured testimony (including
the falsification of credentials) the falsification of credentials) have all been reportedhave all been reported
Scientific Fraud & Scientific Fraud & IncompetenceIncompetenceScientific Fraud & Scientific Fraud & IncompetenceIncompetence
The Department of Justice's 1997 report on the The Department of Justice's 1997 report on the FBI laboratory, issued by the Inspector FBI laboratory, issued by the Inspector General, graphically described negligence, General, graphically described negligence, misconduct, and other shortcomings of the misconduct, and other shortcomings of the premier crime laboratory in the country. premier crime laboratory in the country.
The investigation found scientifically flawed The investigation found scientifically flawed testimony, inaccurate testimony, testimony testimony, inaccurate testimony, testimony beyond the competence of examiners, beyond the competence of examiners, improperly prepared laboratory reports, improperly prepared laboratory reports, insufficient documentation of test results, insufficient documentation of test results, inadequate record management and retention, inadequate record management and retention, and failures of management "to resolve serious and failures of management "to resolve serious and credible allegations of incompetence." and credible allegations of incompetence."
The Department of Justice's 1997 report on the The Department of Justice's 1997 report on the FBI laboratory, issued by the Inspector FBI laboratory, issued by the Inspector General, graphically described negligence, General, graphically described negligence, misconduct, and other shortcomings of the misconduct, and other shortcomings of the premier crime laboratory in the country. premier crime laboratory in the country.
The investigation found scientifically flawed The investigation found scientifically flawed testimony, inaccurate testimony, testimony testimony, inaccurate testimony, testimony beyond the competence of examiners, beyond the competence of examiners, improperly prepared laboratory reports, improperly prepared laboratory reports, insufficient documentation of test results, insufficient documentation of test results, inadequate record management and retention, inadequate record management and retention, and failures of management "to resolve serious and failures of management "to resolve serious and credible allegations of incompetence." and credible allegations of incompetence."
Richard H. UnderwoodRichard H. UnderwoodRichard H. UnderwoodRichard H. Underwood
"(one) can concede the "(one) can concede the important, even essential, role important, even essential, role of the expert witness . . . of the expert witness . . .
(and yet worry about) whether (and yet worry about) whether the vastly increased role of the vastly increased role of experts in the law poses a experts in the law poses a threat to the proper exercise of threat to the proper exercise of the court's arbitral role." the court's arbitral role."
"(one) can concede the "(one) can concede the important, even essential, role important, even essential, role of the expert witness . . . of the expert witness . . .
(and yet worry about) whether (and yet worry about) whether the vastly increased role of the vastly increased role of experts in the law poses a experts in the law poses a threat to the proper exercise of threat to the proper exercise of the court's arbitral role." the court's arbitral role."
Evaluating Scientific Evaluating Scientific EvidenceEvidenceEvaluating Scientific Evaluating Scientific EvidenceEvidence
One suspects that control problems One suspects that control problems are perceived to be more worrisome are perceived to be more worrisome where the law operates through an where the law operates through an adversary systemadversary system
relationship between the law and relationship between the law and expert testimony in English law as a expert testimony in English law as a " shotgun marriage" in which the " shotgun marriage" in which the men of law have attempted to keep men of law have attempted to keep the expert in a "subordinate role." the expert in a "subordinate role."
One suspects that control problems One suspects that control problems are perceived to be more worrisome are perceived to be more worrisome where the law operates through an where the law operates through an adversary systemadversary system
relationship between the law and relationship between the law and expert testimony in English law as a expert testimony in English law as a " shotgun marriage" in which the " shotgun marriage" in which the men of law have attempted to keep men of law have attempted to keep the expert in a "subordinate role." the expert in a "subordinate role."
Evaluating Scientific Evaluating Scientific EvidenceEvidenceEvaluating Scientific Evaluating Scientific EvidenceEvidence
Role of CounselRole of Counsel Role of the CourtsRole of the Courts Role of the ExpertsRole of the Experts
Role of CounselRole of Counsel Role of the CourtsRole of the Courts Role of the ExpertsRole of the Experts
CounselCounselCounselCounsel
Plaintiffs' lawyers in civil cases wants a Plaintiffs' lawyers in civil cases wants a loose standard for the admission of loose standard for the admission of scientific evidence-the plaintiffs' lawyers scientific evidence-the plaintiffs' lawyers would prefer that the question be one of would prefer that the question be one of evidentiary weight or sufficiency evidentiary weight or sufficiency
This is a large and increasingly well This is a large and increasingly well organized group that knows how to get organized group that knows how to get its points across. its points across.
Conservative politicians refer to this Conservative politicians refer to this group as "The Trial Lawyers." group as "The Trial Lawyers."
Plaintiffs' lawyers in civil cases wants a Plaintiffs' lawyers in civil cases wants a loose standard for the admission of loose standard for the admission of scientific evidence-the plaintiffs' lawyers scientific evidence-the plaintiffs' lawyers would prefer that the question be one of would prefer that the question be one of evidentiary weight or sufficiency evidentiary weight or sufficiency
This is a large and increasingly well This is a large and increasingly well organized group that knows how to get organized group that knows how to get its points across. its points across.
Conservative politicians refer to this Conservative politicians refer to this group as "The Trial Lawyers." group as "The Trial Lawyers."
CounselCounselCounselCounsel
Defense lawyers in civil cases Defense lawyers in civil cases want a strict admissibility want a strict admissibility standardstandard
This group is less organized than This group is less organized than the plaintiff barthe plaintiff bar
Civil defense lawyers support and Civil defense lawyers support and are supported by corporations are supported by corporations and insurance companies. and insurance companies.
Defense lawyers in civil cases Defense lawyers in civil cases want a strict admissibility want a strict admissibility standardstandard
This group is less organized than This group is less organized than the plaintiff barthe plaintiff bar
Civil defense lawyers support and Civil defense lawyers support and are supported by corporations are supported by corporations and insurance companies. and insurance companies.
CounselCounselCounselCounsel
Prosecutors (and other Prosecutors (and other government lawyers-lawyers in government lawyers-lawyers in enforcement agencies, who use enforcement agencies, who use scientific evidence) want a scientific evidence) want a liberal standard of admissibility, liberal standard of admissibility, or at least a standard that will or at least a standard that will apply in the same way to both apply in the same way to both the prosecution and the defense the prosecution and the defense
Prosecutors (and other Prosecutors (and other government lawyers-lawyers in government lawyers-lawyers in enforcement agencies, who use enforcement agencies, who use scientific evidence) want a scientific evidence) want a liberal standard of admissibility, liberal standard of admissibility, or at least a standard that will or at least a standard that will apply in the same way to both apply in the same way to both the prosecution and the defense the prosecution and the defense
CounselCounselCounselCounsel
Criminal defense lawyers want Criminal defense lawyers want a strict, standard to be applied a strict, standard to be applied to the prosecution, but want a to the prosecution, but want a more liberal standard or no more liberal standard or no standard at all to be applied to standard at all to be applied to the defense. the defense.
Criminal defense lawyers want Criminal defense lawyers want a strict, standard to be applied a strict, standard to be applied to the prosecution, but want a to the prosecution, but want a more liberal standard or no more liberal standard or no standard at all to be applied to standard at all to be applied to the defense. the defense.
Judges & JuriesJudges & JuriesJudges & JuriesJudges & Juries
IN HIS BOOK LABORATORY OF JUSTICE, IN HIS BOOK LABORATORY OF JUSTICE, David Faigman takes the Supreme David Faigman takes the Supreme Court to task for persistently failing to Court to task for persistently failing to inquire into the merits of the scientific inquire into the merits of the scientific evidence figuring in the cases before it. evidence figuring in the cases before it.
"For 200-plus years the Court has "For 200-plus years the Court has demonstrated remarkable insensitivity demonstrated remarkable insensitivity to empirical questions," he contends. to empirical questions," he contends. "Its factual jurisprudence is slapdash, "Its factual jurisprudence is slapdash, sloppy, and, too often, supercilious."sloppy, and, too often, supercilious."
IN HIS BOOK LABORATORY OF JUSTICE, IN HIS BOOK LABORATORY OF JUSTICE, David Faigman takes the Supreme David Faigman takes the Supreme Court to task for persistently failing to Court to task for persistently failing to inquire into the merits of the scientific inquire into the merits of the scientific evidence figuring in the cases before it. evidence figuring in the cases before it.
"For 200-plus years the Court has "For 200-plus years the Court has demonstrated remarkable insensitivity demonstrated remarkable insensitivity to empirical questions," he contends. to empirical questions," he contends. "Its factual jurisprudence is slapdash, "Its factual jurisprudence is slapdash, sloppy, and, too often, supercilious."sloppy, and, too often, supercilious."
The Courts: Daubert The Courts: Daubert (Mohan)(Mohan)
The Courts: Daubert The Courts: Daubert (Mohan)(Mohan)
"By a preponderance of the evidence, the proponent "By a preponderance of the evidence, the proponent of the expert evidencof the expert evidencee has to demonstrate to the has to demonstrate to the judge that it is good evidence, perhaps in spite of judge that it is good evidence, perhaps in spite of what other experts think about it.“what other experts think about it.“
The judge must decide at least three questions: The judge must decide at least three questions: (1) whether the witness is indeed expert in the field; (1) whether the witness is indeed expert in the field; (2) whether the field is a genuine area of science; (2) whether the field is a genuine area of science; (3) whether, given a positive answer to (1) and (2), (3) whether, given a positive answer to (1) and (2), his particular depositions are credible. . . . his particular depositions are credible. . . .
All three of these questions pose difficulty for a legal All three of these questions pose difficulty for a legal tribunal since they seem to be questions that only tribunal since they seem to be questions that only an expert can answer. an expert can answer.
Hence the specter of a vicious logical regress arises. Hence the specter of a vicious logical regress arises.
"By a preponderance of the evidence, the proponent "By a preponderance of the evidence, the proponent of the expert evidencof the expert evidencee has to demonstrate to the has to demonstrate to the judge that it is good evidence, perhaps in spite of judge that it is good evidence, perhaps in spite of what other experts think about it.“what other experts think about it.“
The judge must decide at least three questions: The judge must decide at least three questions: (1) whether the witness is indeed expert in the field; (1) whether the witness is indeed expert in the field; (2) whether the field is a genuine area of science; (2) whether the field is a genuine area of science; (3) whether, given a positive answer to (1) and (2), (3) whether, given a positive answer to (1) and (2), his particular depositions are credible. . . . his particular depositions are credible. . . .
All three of these questions pose difficulty for a legal All three of these questions pose difficulty for a legal tribunal since they seem to be questions that only tribunal since they seem to be questions that only an expert can answer. an expert can answer.
Hence the specter of a vicious logical regress arises. Hence the specter of a vicious logical regress arises.
Applying the Rule: Novel, Applying the Rule: Novel, social, psychological social, psychological sciencescience
Applying the Rule: Novel, Applying the Rule: Novel, social, psychological social, psychological sciencescience
Goodyear Tire & Rubber Co. v. Goodyear Tire & Rubber Co. v. Thompson, a products liability case Thompson, a products liability case against arising from the plaintiff's against arising from the plaintiff's injuries that he suffered when he was injuries that he suffered when he was changing a multi-piece tire rim changing a multi-piece tire rim manufactured by Goodyear. manufactured by Goodyear.
Dr. O.J. Hahn would have testified that Dr. O.J. Hahn would have testified that the wheel multi-piece tire rim was the wheel multi-piece tire rim was defectively designed, and a safer defectively designed, and a safer technology was available. technology was available.
Goodyear Tire & Rubber Co. v. Goodyear Tire & Rubber Co. v. Thompson, a products liability case Thompson, a products liability case against arising from the plaintiff's against arising from the plaintiff's injuries that he suffered when he was injuries that he suffered when he was changing a multi-piece tire rim changing a multi-piece tire rim manufactured by Goodyear. manufactured by Goodyear.
Dr. O.J. Hahn would have testified that Dr. O.J. Hahn would have testified that the wheel multi-piece tire rim was the wheel multi-piece tire rim was defectively designed, and a safer defectively designed, and a safer technology was available. technology was available.
‘‘Novel’ ScienceNovel’ Science‘‘Novel’ ScienceNovel’ Science
Dr. Hahn was very well qualified. Dr. Hahn was very well qualified. His opinion was based on the His opinion was based on the
application of his knowledge of application of his knowledge of engineering principles, and his study of engineering principles, and his study of wheel bolting systems wheel bolting systems
These systems were successfully used These systems were successfully used on B-52s, and Dr. Hahn sensibly on B-52s, and Dr. Hahn sensibly concluded that a similar bolting system concluded that a similar bolting system would work on wheel assemblies on would work on wheel assemblies on trucks and trailers. trucks and trailers.
Dr. Hahn was very well qualified. Dr. Hahn was very well qualified. His opinion was based on the His opinion was based on the
application of his knowledge of application of his knowledge of engineering principles, and his study of engineering principles, and his study of wheel bolting systems wheel bolting systems
These systems were successfully used These systems were successfully used on B-52s, and Dr. Hahn sensibly on B-52s, and Dr. Hahn sensibly concluded that a similar bolting system concluded that a similar bolting system would work on wheel assemblies on would work on wheel assemblies on trucks and trailers. trucks and trailers.
‘‘Novel’ ScienceNovel’ Science‘‘Novel’ ScienceNovel’ Science
because Dr. Hahn had never:because Dr. Hahn had never: (1) used a B-52 system on a truck, (1) used a B-52 system on a truck, (2) submitted his views to any tire (2) submitted his views to any tire
manufacturer, manufacturer, (3) submitted his suggested design (3) submitted his suggested design
for peer review, nor for peer review, nor (4) published his "B-52 bolting (4) published his "B-52 bolting
theory" in any article,theory" in any article, his testimony was not admissible his testimony was not admissible
because Dr. Hahn had never:because Dr. Hahn had never: (1) used a B-52 system on a truck, (1) used a B-52 system on a truck, (2) submitted his views to any tire (2) submitted his views to any tire
manufacturer, manufacturer, (3) submitted his suggested design (3) submitted his suggested design
for peer review, nor for peer review, nor (4) published his "B-52 bolting (4) published his "B-52 bolting
theory" in any article,theory" in any article, his testimony was not admissible his testimony was not admissible
‘‘Novel’ ScienceNovel’ Science‘‘Novel’ ScienceNovel’ Science
Was this a proper exercise of Was this a proper exercise of (Daubert) gatekeeping power? (Daubert) gatekeeping power?
The dissent questioned whether it The dissent questioned whether it was not more sensible to admit was not more sensible to admit testimony based on accepted testimony based on accepted scientific principles of engineering, scientific principles of engineering, and let the jury consider the points and let the jury consider the points made by defendant as matters made by defendant as matters going to the weight and not the going to the weight and not the admissibility of the evidence admissibility of the evidence
Was this a proper exercise of Was this a proper exercise of (Daubert) gatekeeping power? (Daubert) gatekeeping power?
The dissent questioned whether it The dissent questioned whether it was not more sensible to admit was not more sensible to admit testimony based on accepted testimony based on accepted scientific principles of engineering, scientific principles of engineering, and let the jury consider the points and let the jury consider the points made by defendant as matters made by defendant as matters going to the weight and not the going to the weight and not the admissibility of the evidence admissibility of the evidence
‘‘Social’ScienceSocial’Science‘‘Social’ScienceSocial’Science In these difficult and thorny cases, the court In these difficult and thorny cases, the court
"used science to disguise a policy choice." "used science to disguise a policy choice." Justice Blackmun delved into the science in Roe Justice Blackmun delved into the science in Roe
v Wade drawing on his experience as counsel v Wade drawing on his experience as counsel for the Mayo Clinic when he spent a summer for the Mayo Clinic when he spent a summer enmeshed in the study of fetal viability. enmeshed in the study of fetal viability.
much of the expertise in play in Supreme Court much of the expertise in play in Supreme Court cases concerns social science, an area of cases concerns social science, an area of frequently unsettled knowledge. frequently unsettled knowledge.
Unsettled science today may become Unsettled science today may become established science tomorrow, or it may fall by established science tomorrow, or it may fall by the wayside. the wayside.
In either case, the claimant science of the In either case, the claimant science of the moment offers a hazardous foundation on which moment offers a hazardous foundation on which to erect principles of constitutional law.to erect principles of constitutional law.
In these difficult and thorny cases, the court In these difficult and thorny cases, the court "used science to disguise a policy choice." "used science to disguise a policy choice."
Justice Blackmun delved into the science in Roe Justice Blackmun delved into the science in Roe v Wade drawing on his experience as counsel v Wade drawing on his experience as counsel for the Mayo Clinic when he spent a summer for the Mayo Clinic when he spent a summer enmeshed in the study of fetal viability. enmeshed in the study of fetal viability.
much of the expertise in play in Supreme Court much of the expertise in play in Supreme Court cases concerns social science, an area of cases concerns social science, an area of frequently unsettled knowledge. frequently unsettled knowledge.
Unsettled science today may become Unsettled science today may become established science tomorrow, or it may fall by established science tomorrow, or it may fall by the wayside. the wayside.
In either case, the claimant science of the In either case, the claimant science of the moment offers a hazardous foundation on which moment offers a hazardous foundation on which to erect principles of constitutional law.to erect principles of constitutional law.
Over value the Over value the ExpertExpert
Over value the Over value the ExpertExpert
opinion (may) have a weight and opinion (may) have a weight and authority that it may not deserve, authority that it may not deserve,
not just because he may not be a not just because he may not be a particularly good specimen of particularly good specimen of "homo scientificus" "homo scientificus"
but also because what he but also because what he testifies to may be much more testifies to may be much more contestable than the deferential contestable than the deferential lay person is inclined to believe. lay person is inclined to believe.
opinion (may) have a weight and opinion (may) have a weight and authority that it may not deserve, authority that it may not deserve,
not just because he may not be a not just because he may not be a particularly good specimen of particularly good specimen of "homo scientificus" "homo scientificus"
but also because what he but also because what he testifies to may be much more testifies to may be much more contestable than the deferential contestable than the deferential lay person is inclined to believe. lay person is inclined to believe.
Accuracy ProblemsAccuracy ProblemsAccuracy ProblemsAccuracy Problems
"(f)orensic experts often present "(f)orensic experts often present their findings with great their findings with great confidence, but infallibility is confidence, but infallibility is unfortunately not a characteristic unfortunately not a characteristic of forensic laboratories" of forensic laboratories"
"(t)he problem with DNA "(t)he problem with DNA evidence is no longer one of evidence is no longer one of validity, but one of proficiency"). validity, but one of proficiency").
"(f)orensic experts often present "(f)orensic experts often present their findings with great their findings with great confidence, but infallibility is confidence, but infallibility is unfortunately not a characteristic unfortunately not a characteristic of forensic laboratories" of forensic laboratories"
"(t)he problem with DNA "(t)he problem with DNA evidence is no longer one of evidence is no longer one of validity, but one of proficiency"). validity, but one of proficiency").
Over Value the ScienceOver Value the ScienceOver Value the ScienceOver Value the Science
some procedures have been subjected some procedures have been subjected to little or no testing, to little or no testing,
"most of forensic science operates "most of forensic science operates outside of (any) peer review systems." outside of (any) peer review systems."
Publication is limited. Publication is limited. Many techniques are not used Many techniques are not used
"outside," and "outside," and may not be generally accepted, at least may not be generally accepted, at least
by the larger scientific community.by the larger scientific community.
some procedures have been subjected some procedures have been subjected to little or no testing, to little or no testing,
"most of forensic science operates "most of forensic science operates outside of (any) peer review systems." outside of (any) peer review systems."
Publication is limited. Publication is limited. Many techniques are not used Many techniques are not used
"outside," and "outside," and may not be generally accepted, at least may not be generally accepted, at least
by the larger scientific community.by the larger scientific community.
Error RatesError RatesError RatesError Rates
little is . . . known about the little is . . . known about the true error rates for almost all true error rates for almost all forensic science techniques forensic science techniques
. . (and that) (t)he few . . (and that) (t)he few disclosed error rates . . . are disclosed error rates . . . are shockingly high." shockingly high."
little is . . . known about the little is . . . known about the true error rates for almost all true error rates for almost all forensic science techniques forensic science techniques
. . (and that) (t)he few . . (and that) (t)he few disclosed error rates . . . are disclosed error rates . . . are shockingly high." shockingly high."
Error RatesError RatesError RatesError Rates Are we to consider the degree of error inherent in a Are we to consider the degree of error inherent in a
test or technique even when it is properly test or technique even when it is properly conducted (theoretical accuracy)? conducted (theoretical accuracy)?
Are we talking about performance rates on a Are we talking about performance rates on a particular lab's or a particular individual's particular lab's or a particular individual's proficiency tests? proficiency tests?
Should an expert be required to combine the Should an expert be required to combine the probability of a match due to lab error with the probability of a match due to lab error with the random-match probabilities (RMP)? (DNA)random-match probabilities (RMP)? (DNA)
Should the jury be told anything about "error Should the jury be told anything about "error rates"? rates"?
Should we demand some evidence of actual human Should we demand some evidence of actual human error in the particular case before we inject error in the particular case before we inject "possibilities" into the trial? "possibilities" into the trial?
Can the risks be minimized by providing Can the risks be minimized by providing opportunities for reciprocal discovery and testing? opportunities for reciprocal discovery and testing?
Are we to consider the degree of error inherent in a Are we to consider the degree of error inherent in a test or technique even when it is properly test or technique even when it is properly conducted (theoretical accuracy)? conducted (theoretical accuracy)?
Are we talking about performance rates on a Are we talking about performance rates on a particular lab's or a particular individual's particular lab's or a particular individual's proficiency tests? proficiency tests?
Should an expert be required to combine the Should an expert be required to combine the probability of a match due to lab error with the probability of a match due to lab error with the random-match probabilities (RMP)? (DNA)random-match probabilities (RMP)? (DNA)
Should the jury be told anything about "error Should the jury be told anything about "error rates"? rates"?
Should we demand some evidence of actual human Should we demand some evidence of actual human error in the particular case before we inject error in the particular case before we inject "possibilities" into the trial? "possibilities" into the trial?
Can the risks be minimized by providing Can the risks be minimized by providing opportunities for reciprocal discovery and testing? opportunities for reciprocal discovery and testing?
Error RatesError RatesError RatesError Rates Investigation of the West Virginia State Police Crime Investigation of the West Virginia State Police Crime
Laboratory, Serology Division:Laboratory, Serology Division:(1) no written documentation of testing methodology; (1) no written documentation of testing methodology; (2) no written quality assurance program; (2) no written quality assurance program; (3) no written internal or external auditing procedures (3) no written internal or external auditing procedures (4) no routine proficiency testing of laboratory (4) no routine proficiency testing of laboratory technicians;technicians;(5) no technical review of work product; (5) no technical review of work product; (6) no written documentation of instrument (6) no written documentation of instrument maintenance and calibration; maintenance and calibration; (7) no written testing procedures manual; (7) no written testing procedures manual; (8) failure to follow generally accepted scientific (8) failure to follow generally accepted scientific testing standards with respect to certain tests; testing standards with respect to certain tests; (9) inadequate record-keeping; (9) inadequate record-keeping; 10) failure to conduct collateral testing 10) failure to conduct collateral testing
Investigation of the West Virginia State Police Crime Investigation of the West Virginia State Police Crime Laboratory, Serology Division:Laboratory, Serology Division:(1) no written documentation of testing methodology; (1) no written documentation of testing methodology; (2) no written quality assurance program; (2) no written quality assurance program; (3) no written internal or external auditing procedures (3) no written internal or external auditing procedures (4) no routine proficiency testing of laboratory (4) no routine proficiency testing of laboratory technicians;technicians;(5) no technical review of work product; (5) no technical review of work product; (6) no written documentation of instrument (6) no written documentation of instrument maintenance and calibration; maintenance and calibration; (7) no written testing procedures manual; (7) no written testing procedures manual; (8) failure to follow generally accepted scientific (8) failure to follow generally accepted scientific testing standards with respect to certain tests; testing standards with respect to certain tests; (9) inadequate record-keeping; (9) inadequate record-keeping; 10) failure to conduct collateral testing 10) failure to conduct collateral testing
Error RatesError RatesError RatesError Rates Reports of investigations of other crime laboratories Reports of investigations of other crime laboratories
are also available on several forensic web pages on are also available on several forensic web pages on the internetthe internet
De Paul University Center for Law and Science, at De Paul University Center for Law and Science, at http://www. law.depaul.edu (last visited Nov. 6, 2000); http://www. law.depaul.edu (last visited Nov. 6, 2000);
Scientific Testimony: An Online Journal, (last visited Scientific Testimony: An Online Journal, (last visited Nov. 6, 2000) at http://www.scientific.org; Nov. 6, 2000) at http://www.scientific.org;
Kim Kruglick, Forensic Resource and Criminal Law Kim Kruglick, Forensic Resource and Criminal Law Search Site, at http:// Search Site, at http:// www.kruglaw.com/lawsearch.htm (last visited Nov. 6, www.kruglaw.com/lawsearch.htm (last visited Nov. 6, 2000); 2000);
The Evidence Site, at The Evidence Site, at http://www.law.umich.edu/thayer/ (last visited Nov. 6, http://www.law.umich.edu/thayer/ (last visited Nov. 6, 2000).2000).
Reports of investigations of other crime laboratories Reports of investigations of other crime laboratories are also available on several forensic web pages on are also available on several forensic web pages on the internetthe internet
De Paul University Center for Law and Science, at De Paul University Center for Law and Science, at http://www. law.depaul.edu (last visited Nov. 6, 2000); http://www. law.depaul.edu (last visited Nov. 6, 2000);
Scientific Testimony: An Online Journal, (last visited Scientific Testimony: An Online Journal, (last visited Nov. 6, 2000) at http://www.scientific.org; Nov. 6, 2000) at http://www.scientific.org;
Kim Kruglick, Forensic Resource and Criminal Law Kim Kruglick, Forensic Resource and Criminal Law Search Site, at http:// Search Site, at http:// www.kruglaw.com/lawsearch.htm (last visited Nov. 6, www.kruglaw.com/lawsearch.htm (last visited Nov. 6, 2000); 2000);
The Evidence Site, at The Evidence Site, at http://www.law.umich.edu/thayer/ (last visited Nov. 6, http://www.law.umich.edu/thayer/ (last visited Nov. 6, 2000).2000).
Honesty ProblemsHonesty ProblemsHonesty ProblemsHonesty Problems
"(t)he adversary system is probably "(t)he adversary system is probably the best tool we have for the best tool we have for detecting . . (overconfidence, self-detecting . . (overconfidence, self-deception, and dishonesty) . . . deception, and dishonesty) . . .
ironically, it is itself responsible for ironically, it is itself responsible for one common defect, namely, the one common defect, namely, the expert's temptation to identify expert's temptation to identify overmuch with the cause of his overmuch with the cause of his 'side."'side."
"(t)he adversary system is probably "(t)he adversary system is probably the best tool we have for the best tool we have for detecting . . (overconfidence, self-detecting . . (overconfidence, self-deception, and dishonesty) . . . deception, and dishonesty) . . .
ironically, it is itself responsible for ironically, it is itself responsible for one common defect, namely, the one common defect, namely, the expert's temptation to identify expert's temptation to identify overmuch with the cause of his overmuch with the cause of his 'side."'side."
Expert WitnessesExpert WitnessesExpert WitnessesExpert Witnesses expert witnesses can be "co-opted" by the expert witnesses can be "co-opted" by the
prosecution-they may be little more than hired prosecution-they may be little more than hired guns of the state. guns of the state.
Even honest witnesses who are trying to be Even honest witnesses who are trying to be objective may not be asked the right questions objective may not be asked the right questions and may have their testimony filtered or and may have their testimony filtered or contorted by the advocate. contorted by the advocate.
"Untoward results follow when expert evidence in "Untoward results follow when expert evidence in complex cases is presented in adversarial complex cases is presented in adversarial fashion: Expert witnesses are manipulated for fashion: Expert witnesses are manipulated for partisan purposes, some relevant scientific partisan purposes, some relevant scientific findings are never introduced, and unwarranted findings are never introduced, and unwarranted conclusions are not distinguished from valid conclusions are not distinguished from valid research “ . . . research “ . . .
expert witnesses can be "co-opted" by the expert witnesses can be "co-opted" by the prosecution-they may be little more than hired prosecution-they may be little more than hired guns of the state. guns of the state.
Even honest witnesses who are trying to be Even honest witnesses who are trying to be objective may not be asked the right questions objective may not be asked the right questions and may have their testimony filtered or and may have their testimony filtered or contorted by the advocate. contorted by the advocate.
"Untoward results follow when expert evidence in "Untoward results follow when expert evidence in complex cases is presented in adversarial complex cases is presented in adversarial fashion: Expert witnesses are manipulated for fashion: Expert witnesses are manipulated for partisan purposes, some relevant scientific partisan purposes, some relevant scientific findings are never introduced, and unwarranted findings are never introduced, and unwarranted conclusions are not distinguished from valid conclusions are not distinguished from valid research “ . . . research “ . . .
Interest in the OutcomeInterest in the OutcomeInterest in the OutcomeInterest in the Outcome
Good detectives follow the Good detectives follow the evidence and do not manipulate evidence and do not manipulate the evidence to fit their pre-the evidence to fit their pre-conceived notions or theories.conceived notions or theories.
We all know, however, that We all know, however, that there are bad detectives as well there are bad detectives as well as over-zealous prosecutors. as over-zealous prosecutors.
Good detectives follow the Good detectives follow the evidence and do not manipulate evidence and do not manipulate the evidence to fit their pre-the evidence to fit their pre-conceived notions or theories.conceived notions or theories.
We all know, however, that We all know, however, that there are bad detectives as well there are bad detectives as well as over-zealous prosecutors. as over-zealous prosecutors.
Interest in the OutcomeInterest in the OutcomeInterest in the OutcomeInterest in the Outcome
Forensic scientist D.H. Garrison, Jr. Forensic scientist D.H. Garrison, Jr. puts it this way: puts it this way:
"Bad science is what forensic "Bad science is what forensic science becomes when an attorney science becomes when an attorney or prosecutor, who often display(s) or prosecutor, who often display(s) all the ethics of a full-grown all the ethics of a full-grown hamster, get(s) a forensic scientist hamster, get(s) a forensic scientist to play ball, to get with (the to play ball, to get with (the advocate's) program and see (the advocate's) program and see (the advocate's) big picture."advocate's) big picture."
Forensic scientist D.H. Garrison, Jr. Forensic scientist D.H. Garrison, Jr. puts it this way: puts it this way:
"Bad science is what forensic "Bad science is what forensic science becomes when an attorney science becomes when an attorney or prosecutor, who often display(s) or prosecutor, who often display(s) all the ethics of a full-grown all the ethics of a full-grown hamster, get(s) a forensic scientist hamster, get(s) a forensic scientist to play ball, to get with (the to play ball, to get with (the advocate's) program and see (the advocate's) program and see (the advocate's) big picture."advocate's) big picture."
Interest in the OutcomeInterest in the OutcomeInterest in the OutcomeInterest in the Outcome Sometimes prosecutors will "shop Sometimes prosecutors will "shop
around" until they find an expert who will around" until they find an expert who will tell them what they want to hear.tell them what they want to hear.
This happened in the infamous Rolando This happened in the infamous Rolando Cruz case.Cruz case.]
The first lab guy says it's not the boot. . The first lab guy says it's not the boot. . . . We don't like that answer, so there's no . . We don't like that answer, so there's no paper (report). We go to a second guy paper (report). We go to a second guy who used to do our lab. He says yes. So who used to do our lab. He says yes. So we write a report on Mr. Yes. Then Louise we write a report on Mr. Yes. Then Louise Robbins arrives. This is the boot, she says. Robbins arrives. This is the boot, she says. That'll be $10,000. So now we have That'll be $10,000. So now we have evidence evidence
Sometimes prosecutors will "shop Sometimes prosecutors will "shop around" until they find an expert who will around" until they find an expert who will tell them what they want to hear.tell them what they want to hear.
This happened in the infamous Rolando This happened in the infamous Rolando Cruz case.Cruz case.]
The first lab guy says it's not the boot. . The first lab guy says it's not the boot. . . . We don't like that answer, so there's no . . We don't like that answer, so there's no paper (report). We go to a second guy paper (report). We go to a second guy who used to do our lab. He says yes. So who used to do our lab. He says yes. So we write a report on Mr. Yes. Then Louise we write a report on Mr. Yes. Then Louise Robbins arrives. This is the boot, she says. Robbins arrives. This is the boot, she says. That'll be $10,000. So now we have That'll be $10,000. So now we have evidence evidence
A troubling taleA troubling taleA troubling taleA troubling tale
Lawyer and criminology Lawyer and criminology Professor William Thompson Professor William Thompson tells a troubling tale about DNA. tells a troubling tale about DNA.
Lawyer and criminology Lawyer and criminology Professor William Thompson Professor William Thompson tells a troubling tale about DNA. tells a troubling tale about DNA.
A troubling taleA troubling taleA troubling taleA troubling tale
(T)he laboratory report indicated that the (T)he laboratory report indicated that the DNA test had produced powerful evidence DNA test had produced powerful evidence against both suspects against both suspects
a five locus match between each suspect and a five locus match between each suspect and the DNA found in semen extracted from the DNA found in semen extracted from
the victim. The report gave no indication that the victim. The report gave no indication that the evidence against suspect 1 was weaker the evidence against suspect 1 was weaker than that against suspect 2. . . . than that against suspect 2. . . .
Examination of the underlying autorads Examination of the underlying autorads confirmed a clear, unambiguous match with confirmed a clear, unambiguous match with suspect 2, but indicated the evidence against suspect 2, but indicated the evidence against suspect 1 was ambiguous and equivocal. suspect 1 was ambiguous and equivocal.
(T)he laboratory report indicated that the (T)he laboratory report indicated that the DNA test had produced powerful evidence DNA test had produced powerful evidence against both suspects against both suspects
a five locus match between each suspect and a five locus match between each suspect and the DNA found in semen extracted from the DNA found in semen extracted from
the victim. The report gave no indication that the victim. The report gave no indication that the evidence against suspect 1 was weaker the evidence against suspect 1 was weaker than that against suspect 2. . . . than that against suspect 2. . . .
Examination of the underlying autorads Examination of the underlying autorads confirmed a clear, unambiguous match with confirmed a clear, unambiguous match with suspect 2, but indicated the evidence against suspect 2, but indicated the evidence against suspect 1 was ambiguous and equivocal. suspect 1 was ambiguous and equivocal.
A troubling taleA troubling taleA troubling taleA troubling tale
. . . initial suspicion . . . examiner . . . initial suspicion . . . examiner bias.bias.
prosecution position - the autorads prosecution position - the autorads had been scored objectively by a had been scored objectively by a computer-assisted imaging device. computer-assisted imaging device.
The prosecution claimed a scanner The prosecution claimed a scanner was used to create a digital image was used to create a digital image of each autorad . . . making the of each autorad . . . making the process entirely objective. process entirely objective.
. . . initial suspicion . . . examiner . . . initial suspicion . . . examiner bias.bias.
prosecution position - the autorads prosecution position - the autorads had been scored objectively by a had been scored objectively by a computer-assisted imaging device. computer-assisted imaging device.
The prosecution claimed a scanner The prosecution claimed a scanner was used to create a digital image was used to create a digital image of each autorad . . . making the of each autorad . . . making the process entirely objective. process entirely objective.
A troubling taleA troubling taleA troubling taleA troubling tale . . . a court order to re-score the autorads with the . . . a court order to re-score the autorads with the
computer imaging device watched by counsel and an computer imaging device watched by counsel and an independent expert independent expert
In order to detect bands in the male vaginal extract lane In order to detect bands in the male vaginal extract lane that corresponded to those of suspect 1, the analyst had that corresponded to those of suspect 1, the analyst had to increase the sensitivity of the computer to the point to increase the sensitivity of the computer to the point that it detected many additional "bands" that matched that it detected many additional "bands" that matched neither suspect. neither suspect.
The analyst then performed a "manual override" of the The analyst then performed a "manual override" of the computer's scoring, instructing the computer to "delete" computer's scoring, instructing the computer to "delete" (i.e., ignore) all of the bands that matched neither (i.e., ignore) all of the bands that matched neither suspect. suspect.
The analyst’s explanation?The analyst’s explanation? He could tell by He could tell by lookinglooking that the undeleted bands, were that the undeleted bands, were
"true" bands while the others were not. "true" bands while the others were not. In fact, a number of the deleted bands he deleted had In fact, a number of the deleted bands he deleted had
higher optical densities than the bands scored as higher optical densities than the bands scored as matching suspect # 1matching suspect # 1
. . . a court order to re-score the autorads with the . . . a court order to re-score the autorads with the computer imaging device watched by counsel and an computer imaging device watched by counsel and an independent expert independent expert
In order to detect bands in the male vaginal extract lane In order to detect bands in the male vaginal extract lane that corresponded to those of suspect 1, the analyst had that corresponded to those of suspect 1, the analyst had to increase the sensitivity of the computer to the point to increase the sensitivity of the computer to the point that it detected many additional "bands" that matched that it detected many additional "bands" that matched neither suspect. neither suspect.
The analyst then performed a "manual override" of the The analyst then performed a "manual override" of the computer's scoring, instructing the computer to "delete" computer's scoring, instructing the computer to "delete" (i.e., ignore) all of the bands that matched neither (i.e., ignore) all of the bands that matched neither suspect. suspect.
The analyst’s explanation?The analyst’s explanation? He could tell by He could tell by lookinglooking that the undeleted bands, were that the undeleted bands, were
"true" bands while the others were not. "true" bands while the others were not. In fact, a number of the deleted bands he deleted had In fact, a number of the deleted bands he deleted had
higher optical densities than the bands scored as higher optical densities than the bands scored as matching suspect # 1matching suspect # 1
The trap of “Consistent The trap of “Consistent With”With”The trap of “Consistent The trap of “Consistent With”With”
"'(c)onsistent with' is one of "'(c)onsistent with' is one of those catch-all phrases that those catch-all phrases that means (little more than) means (little more than) something could be possible. It something could be possible. It is used a lot . . . especially on is used a lot . . . especially on the witness stand when the witness stand when evidence can be interpreted in evidence can be interpreted in more than one way." more than one way."
"'(c)onsistent with' is one of "'(c)onsistent with' is one of those catch-all phrases that those catch-all phrases that means (little more than) means (little more than) something could be possible. It something could be possible. It is used a lot . . . especially on is used a lot . . . especially on the witness stand when the witness stand when evidence can be interpreted in evidence can be interpreted in more than one way." more than one way."
Sacco & VanzettiSacco & VanzettiSacco & VanzettiSacco & Vanzetti
Q: Have you an opinion as to Q: Have you an opinion as to whether bullet no. 3 was fired from whether bullet no. 3 was fired from the Colt automatic which is in the Colt automatic which is in evidence (Sacco's pistol)? evidence (Sacco's pistol)?
A: I have.A: I have.
Q: And what is your opinion? Q: And what is your opinion?
A: My opinion is that it is consistent A: My opinion is that it is consistent with being fired by that pistol with being fired by that pistol
Q: Have you an opinion as to Q: Have you an opinion as to whether bullet no. 3 was fired from whether bullet no. 3 was fired from the Colt automatic which is in the Colt automatic which is in evidence (Sacco's pistol)? evidence (Sacco's pistol)?
A: I have.A: I have.
Q: And what is your opinion? Q: And what is your opinion?
A: My opinion is that it is consistent A: My opinion is that it is consistent with being fired by that pistol with being fired by that pistol
Judgement:Judgement:Judgement:Judgement:
The presiding judge accepted The presiding judge accepted this as if it were a statement this as if it were a statement that that
"it was . . . (Sacco's) pistol that "it was . . . (Sacco's) pistol that fired the bullet that caused the fired the bullet that caused the death of Berardelli." death of Berardelli."
The presiding judge accepted The presiding judge accepted this as if it were a statement this as if it were a statement that that
"it was . . . (Sacco's) pistol that "it was . . . (Sacco's) pistol that fired the bullet that caused the fired the bullet that caused the death of Berardelli." death of Berardelli."
Reality CheckReality CheckReality CheckReality Check
Later Captain Proctor would give an Later Captain Proctor would give an affidavit that he was never able to find affidavit that he was never able to find any convincing evidence to support any convincing evidence to support another expert's testimony that the another expert's testimony that the bullet was marked with scratches to bullet was marked with scratches to prove it went through Sacco's pistol.prove it went through Sacco's pistol.
He also said he told the district attorney He also said he told the district attorney he would answer "no" if he were asked he would answer "no" if he were asked if he had found any such "affirmative" if he had found any such "affirmative" evidence, but that he had not been evidence, but that he had not been asked that question at the trial. asked that question at the trial.
Later Captain Proctor would give an Later Captain Proctor would give an affidavit that he was never able to find affidavit that he was never able to find any convincing evidence to support any convincing evidence to support another expert's testimony that the another expert's testimony that the bullet was marked with scratches to bullet was marked with scratches to prove it went through Sacco's pistol.prove it went through Sacco's pistol.
He also said he told the district attorney He also said he told the district attorney he would answer "no" if he were asked he would answer "no" if he were asked if he had found any such "affirmative" if he had found any such "affirmative" evidence, but that he had not been evidence, but that he had not been asked that question at the trial. asked that question at the trial.
Would an expert lie?Would an expert lie?Would an expert lie?Would an expert lie?
Mouse: Who are you? Mouse: Who are you? Fox: I'm Robin Hood. Fox: I'm Robin Hood. Mouse: You don't look like Mouse: You don't look like
Robin Hood, but if you say you Robin Hood, but if you say you are then it must be true, are then it must be true, because Robin Hood wouldn't because Robin Hood wouldn't tell a lie tell a lie
Mouse: Who are you? Mouse: Who are you? Fox: I'm Robin Hood. Fox: I'm Robin Hood. Mouse: You don't look like Mouse: You don't look like
Robin Hood, but if you say you Robin Hood, but if you say you are then it must be true, are then it must be true, because Robin Hood wouldn't because Robin Hood wouldn't tell a lie tell a lie
Would an expert lie?Would an expert lie?Would an expert lie?Would an expert lie?
Perhaps the most spectacular cases of Perhaps the most spectacular cases of lying involved:lying involved:
Fred Zain, the former Chief of Serology Fred Zain, the former Chief of Serology at the West Virginia State Police Crime at the West Virginia State Police Crime Laboratory, Laboratory,
Dr. Ralph Erdmann, a pathologist for Dr. Ralph Erdmann, a pathologist for forty-two Texas counties, forty-two Texas counties,
and the late Dr. Louise Robbins, an and the late Dr. Louise Robbins, an anthropologist for hire who is anthropologist for hire who is remembered for her bogus shoeprint remembered for her bogus shoeprint and "Cinderella" testimony and "Cinderella" testimony
Perhaps the most spectacular cases of Perhaps the most spectacular cases of lying involved:lying involved:
Fred Zain, the former Chief of Serology Fred Zain, the former Chief of Serology at the West Virginia State Police Crime at the West Virginia State Police Crime Laboratory, Laboratory,
Dr. Ralph Erdmann, a pathologist for Dr. Ralph Erdmann, a pathologist for forty-two Texas counties, forty-two Texas counties,
and the late Dr. Louise Robbins, an and the late Dr. Louise Robbins, an anthropologist for hire who is anthropologist for hire who is remembered for her bogus shoeprint remembered for her bogus shoeprint and "Cinderella" testimony and "Cinderella" testimony
Daniel J. BrodskyDaniel J. BrodskyDaniel J. BrodskyDaniel J. Brodsky
Barristers ChambersBarristers Chambers
11 Prince Arthur Avenue11 Prince Arthur Avenue
Toronto, Ontario M5R 1B2Toronto, Ontario M5R 1B2
Telephone: (416) 964-2618Telephone: (416) 964-2618
[email protected]@Daniel-Brodsky.com
Barristers ChambersBarristers Chambers
11 Prince Arthur Avenue11 Prince Arthur Avenue
Toronto, Ontario M5R 1B2Toronto, Ontario M5R 1B2
Telephone: (416) 964-2618Telephone: (416) 964-2618
[email protected]@Daniel-Brodsky.com