Junk Science in the Courtroom
I used to write a lot about junk science in civil cases. I have never really liked the idea of limitations on liability awards as a solution for nutty civil rulings -- after all, how can Congress know in advance exactly what real damages will arise, and why should my ability to recover real damages be capped?
I always have felt that such solutions were beside the point, that what tort law needed was:
- Better immunization against junk science
- A rollback of the flawed notion that deep pockets are automatically liable, regardless of their actions, combined with some acknowledgment of individual responsibility
- Protection of dependents from nuisance suits and mass torts, both of which derive their power from the cost of defense rather than the facts of the case, forcing the innocent to settle just to avoid these defense costs.
I always had naively thought that the junk science issues were mainly limited to civil courts, and that criminal courts, with their much stronger protections against false convictions, did not really have these problems.
The more I read Radley Balko, though, the more depressed I get about innocent people sitting in jail as the result of really flawed evidence. The most recent example:
Last weekend, we looked at the case of Bill Dillon, the Brevard County resident imprisoned for 27 years before DNA tests set him free...
At least two other men suffered the same fate "” and another shared link: a dog.
Not just any dog. A wonder dog helped convict all three men: a German shepherd named Harass II, who wowed juries with his amazing ability to place suspects at the scenes of crimes.
Harass could supposedly do things no other dog could: tracking scents months later and even across water, according to his handler, John Preston.
Adam:
I favor execution for all prosecuting witnesses and attorneys in cases where people are wrongfully incarcerated and especially executed.
June 15, 2009, 10:30 amDrTorch:
I wonder if Joyce Gilchrist was the petshop owner that sold Preston the dog.
http://bubbaworld.com/gilchrist.html
"Joyce Gilchrist received her nickname "Black Magic" owing to her remarkable ability to see evidence other forensic chemists could not see, to draw conclusions that others would not approach, to turn speculation into fact and in doing so help the Oklahoma County District Attorney's office rack up win after win in district court."
http://en.wikipedia.org/wiki/Joyce_Gilchrist
June 15, 2009, 10:38 amMe:
:)
Bit hard to sell, but equal damages would be a huge improvement to our system of justice. Currently, there is no real balance, no downside to jailing away that guy you don't know who the nice prosecutor guy tells you might be a risk.
Note also that you don't even need flimsy evidence in today's America to convict; whatever became of 'in dubio pro reo'?
Link: http://www.msnbc.msn.com/id/31345639/ns/us_news-crime_and_courts/
June 15, 2009, 11:01 amCaptain Obviousness:
Another junk science in the criminal courtroom article on Reason, about a bite mark expert who claimed he was so good he could identify the person who took a bite out of a bologna sandwich
http://www.reason.com/news/show/132574.html
June 15, 2009, 12:27 pmFredP:
>I have never really liked the idea of limitations on liability awards as a solution for nutty civil rulings — after all, how can Congress know in advance exactly what real damages will arise, and why should my ability to recover real damages be capped?
The proposals are to cap only punitive damages and "pain and suffering", and to have no limit on real damages. If your real damages are $2 million, you can collect that, plus $250,000 for pain and suffering, but you can't collect $50 million for punitive damages.
June 15, 2009, 3:16 pmDr. T:
The part of our Constitution I truly dislike concerns trials by a jury of one's peers. The notion of being tried by the average idiots around me scares the crap out of me. The average person doesn't understand deductive reasoning, the difference between coincidence and causation, logical thinking and rhetoric, statistics and probabilities, the fallibility of eye witnesses, the high prevalence of perjury among testifying law enforcement personnel, etc. This makes the average person a worse than worthless decider of guilt in a typical criminal trial. The situation for civil trials is worse, because they often involve complex technical issues related to finance, manufacturing, medicine, or engineering.
I would love to see a criminal judicial system with full-time expert panels comprised of a legal expert and two citizens trained in reasoning, logic, rules of evidence, statistics, etc. Civil cases would have expert panels that vary by the type of case. A manufacturing liability case might have a legal expert, two manufacturing experts, a product testing expert, and a medical expert (if the product caused injury).
With expert panels, no legal team could "pull an OJ." Police and district attorneys would have to be much more scrupulous about evidence and testimony. Junk science testimony would be disallowed, and the lawyer and junk peddler would be fined. Court cases would be shorter, so we could reduce the absurd six-year backlog for civil trials. Unfortunately, at present we have a lot more to worry about than amending the Constitution. We have to defend it against Obama and his minions.
June 15, 2009, 3:45 pmSusan Chandler:
The Innocence Project of Florida posted a YouTube video of Gerald Rivera debunking John Preston's dog handling skills on ABC's "20/20" in 1984. http://www.youtube.com/watch?v=kwF94oXsnvc
Rivera is disinterested in a follow-up story; I asked three times at atlarge@foxnews.com. When Rivera came to Florida in December, when charges against Dillon were dropped, it was to attend Gov. Crist's wedding, which had a reported 220 invited guests.
June 15, 2009, 9:13 pmTsiroth:
I'd like to "Me Too" FredP's comment for emphasis. None of the
June 23, 2009, 3:55 amproposed award caps I've ever seen discussed talk about limiting real damages. All the proposals I've seen are for limiting damages for "pain and suffering" and/or punitive damages.
DAV:
"I would love to see a criminal judicial system with full-time expert panels comprised of a legal expert and two citizens trained in reasoning, logic, rules of evidence, statistics, etc. Civil cases would have expert panels that vary by the type of case. ..."
This one has the potential to be permanently loaded to give any desired outcome -- even if you meant the panel would be advisory only. At least the current system means that the prosecution also has to gamble on the outcome. Unfortunately, the prosecution usually has far less to lose.
June 23, 2009, 8:02 am