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What to do with opposing experts

March 12, 2012

1. History, 2. Law, 6. Trial

I caught opposing articles on a supposed scientific fact.  Article 1:

New chemical analyses have found that Coca-Cola, Pepsi-Cola, Diet Coke, and Diet Pepsi contain high levels of 4-methylimidazole (4-MI), a known animal carcinogen. The carcinogen forms when ammonia or ammonia and sulfites are used to manufacture the “caramel coloring” that gives those sodas their distinctive brown colors, according to the Center for Science in the Public Interest, the nonprofit watchdog group that commissioned the tests. CSPI first petitioned the FDA to ban ammonia-sulfite caramel coloring in February 2011.

That sounds reasonable. The alleged “safe level” is 29 micrograms per 12-ounce serving; the products test from 103 to 153 micrograms.  I don’t drink soda – it’s nothing but chemical swill.  But to each his own in his world.  However, reading the article in isolation had a whiff of credence to me because of another article I read recently about a guy that claimed his can of Mountain Dew had a mouse in it.  Yikes!  Worse yet, the defense said the claim was impossible:  “Their scientific expert found the rodent could not have been in the can since the soda case was sealed in August 2008, and its body would have dissolved as a result of the acid in the soda.”

You people drink this stuff?  To. Each. His. Own.  Anyway …

Here’s a bit from the 2d article I found:

The ABA added that a person would need to drink massive amounts of cola to reach a risk level similar to the dosing in mice — 2,900 cans of cola every day for 70 years — that served as the basis for California’s decision.

2,900 cans a day.  Let’s see, there’s 1,440 minutes in a day.  That’s roughly a 12-ounce serving every 30 seconds.  24 hours a day, 7 days a week, for 70 years.  If a person did that, I think cancer would be the least of their problems.  Think “dissolved mouse.”

But here’s the baseline article from the cancer study:

The National Toxicology Program, the division of the National Institute of Environmental Health Sciences that conducted the animal studies, said that there is “clear evidence” that both 2-MI and 4-MI are animal carcinogens. Chemicals that cause cancer in animals are considered to pose cancer threats to humans. Researchers at the University of California, Davis, found significant levels of 4-MI in five brands of cola.

There’s “clear evidence,” so it is claimed.  But I have to assume that the “clear evidence” is more clearly seen in the dose-response relationship, to wit, one can every 30 seconds without pause for 70 years.  Why isn’t that discussed, and where do we go from here?

The problem, from our perspective, is that we have a seemingly rational, learned professional on the witness stand stating quite clearly that Substance A leads to Condition X.  In the criminal-law context, that may be a professional testifying about latent prints or DNA or any of a host of other things that are all meant to connect the scene or act of the crime with the defendant.

The issue with any expert is to never accept the conclusion.  Silly as it is, a picture I keep in my mind is Snoopy, Charlie Brown’s dog.  The mutt wasn’t dancing.  It had fleas.  A dog’s shoulder isn’t constructed to scratch its own back.  The “Snoopy Dance” and the expert’s Conclusion are both fallacies.

Direct examination, if the prosecutor is any good, started at the beginning – an Observation – and led the expert down a single path towards a Conclusion.  Two comments:  The Observation may not be the correct starting point; the “single path” may not be the only path.  Kill the proffered Observation, and you may kill the Conclusion.  Walk another path, and you may wind up at a different Conclusion.  And remember one key objective:  We don’t have to prove that the Conclusion is wrong; we just need to raise reasonable doubt.  That gives us the world of possibilities within which to dwell rather than the world of probabilities.  And what better end result than to have the expert say, “I’m probably right.”

So, let’s kill the Observation.  An observation is made at a moment in time of a particular physical state of a piece of evidence.  The moment in time is always, of course, after the crime was committed.  What was the time lapse between crime and observation?  Was the crime scene contaminated through uncontrolled access?  Could the observation have pre-existed the crime?  Could the observation have occurred after the crime was committed?

The physical state of the evidence goes, in part, to source.  Why that particular hair sample or fingerprint?  Were others present not associated with the defendant?

Following the path leads to evidence control, something cops are supposed to be good at, but all of that is premised on a system not always rigidly followed.  How long from crime scene to evidence room?  How often was it checked out and handled?  Demand the equipment-calibration records from the expert’s lab.

Remember in all of this review that we’re rarely going to win based upon scientific methodology – the dude’s got a PhD and does it for a living.  Yes, sometimes we can nail that, but more often we’re going to raise doubt because of the process items – and jurors can relate better to those issues.

I read research papers constantly.  SSRN is a good place to start.  Sometimes you’ll find a gem on methodology.  Here’s a good paper on point for us.

There is a 3d way to go about crucifying an expert:  He may be a biased toad hopping from one trial to another always reaching the same conclusion.  There’s nothing like a good ole fashioned ad hominem attack to warm up the witness chair.  Find past trials.  If you’re lucky and appeals were filed, transcripts may be there.  The civil side of the world, replete with millions of dollars extorted over alleged mice in soda cans, has databases of transcripts sorted by expert.  Research the opposing expert as if he were planning to date your daughter.

Obviously, we need to know how our state handles Frye and Daubert.  And if we’re fortunate enough to have our own expert, then let the games begin.  But if not, remember that we need to draw the expert into our world – our comfort zone – and thereby remove him from his.  Scientific-credibility issues are run as raids – quickly.  Process issues are slow and deliberate.

And once you’ve scored some points, just like every other cross, get out.

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About Clyde

Clyde is the lead attorney in the firm. Licensed to practice in 1993, he's also taught Constitutional and Criminal Law for several years at a private university, primarily at the Master's level.

View all posts by Clyde

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