Opportunities and Pitfalls at the Intersection of Science and the Law
by: Abassos • March 23, 2011 • no comments
I'm really excited to introduce the newest Oregon Criminal Law author: Kevin Sali. Kevin is a criminal defense attorney with Angeli Law Group in Portland. But in his first career he was a science guy, earning a masters degree in biochemistry from Duke, working in a lab and teaching science. This rare confluence of legal and scientific knowledge has allowed Kevin to become one of our best resources in dealing with scientific evidence. Last year, he conducted a five day Brown/O'Key hearing in the Hood River Juice water pollution felony trial. Which is about four and a half days longer than the longest such hearing I've litigated. He also recently won a Rape I trial that centered around DNA and other scientific evidence. As one would expect from this intro, Kevin will write about how to effectively evaluate and confront scientific evidence and experts in criminal trials. Without further ado, Kevin Sali:
Opportunities and Pitfalls at the Intersection of Science and the Law
The combination of law and science is a tense one, especially in the criminal context. One field calls, at least in theory, for decisions at the level of "moral certainty." The other is based, practically by definition, on flux, uncertainty, and an ever-changing body of knowledge. So when science enters the criminal courtroom, at least one side's natural way of thinking may need to be adjusted.
If scientific evidence is presented accurately and fairly by a qualified expert, there may be little cause for concern. If there is a genuine body of specialized knowledge that can assist the factfinding process, and if the expert is careful to explain the limitations of that knowledge and of the inferences it can support, the evidence may well be helpful and its introduction fair. Under those circumstances, the judge or jury is presented with a defined portion of additional evidence that can affect the factfinding process to a degree matching its underlying strength, but no more.
Unfortunately, that's not always what happens. Too often, a proof gap is filled by supposedly scientific evidence that can't legitimately bear the weight it's asked to carry.
Perhaps counterintuitively, the most dangerous "experts" can be those who are the least qualified. A less qualified expert may not know enough about his subject area, or about science in general, to have the humility that comes with understanding the vast gulf between the world's complexity and the present limitations of human knowledge. He may not know his field well enough to be aware of the limiting or countervailing facts that ought to qualify the strength of his conclusions. (This is especially true if the expert is a government employee whose job is largely to testify for his employer. As Upton Sinclair wrote, "[i]t is difficult to get a man to understand something when his salary depends upon his not understanding it.") Finally, his career path may not be one in which the credibility damage from publicly overstating his case would do much harm.
The results can be frustrating, with the expert freely firing off purportedly "scientific" evidence and that evidence possibly being given more weight than it deserves. This can be particularly difficult if the lawyer feels that she is "not a science person" and feels less than confident challenging the expert, especially in a live court proceeding.
This series of articles will focus on the issues faced by defense lawyers dealing with scientific evidence in Oregon criminal cases. The primary focus will be on defending against the State's scientific evidence, as opposed to affirmatively introducing defense evidence (although there will be some discussion of the latter as well). The goal is to provide Oregon defenders with as much ammunition as possible to prevent the State's scientific evidence from being allowed to carry any more weight than it deserves.
Using the analysis in Oregon cases such as State v. Brown and State v. O'Key as a framework, the articles will focus on the large number of potential areas for attacking proffered scientific evidence-both in seeking to exclude such evidence, and in weakening its force if admitted. Along with legal and strategic considerations like how to challenge the State's scientific evidence and effectively cross-examine the State's experts, the articles will include discussions of potentially helpful scientific principles like how "real" scientists validate, evaluate and describe their methods and which features of the scientific method are opportunities to demonstrate the vast distance between scientific research and moral certainty.
Finally, as this series of articles evolves, I hope that members of the defense community will supplement, criticize, and generally interact through comments, emails and phone calls. Looking forward to the discussion!
