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this post was submitted on 07 Oct 2023
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This test would be fine if we didn't have an adversarial system for expert witnesses. A jury can be made to understand that this test can produce false positives and should not be considered definitive evidence that precludes a reasonable doubt because it is reasonable that a stillborn baby's lungs can randomly get air in them from mechanisms other than breathing. It could still be useful for weighing the other evidence in the case.
The problem comes from the fact that the defense has to hire a competing expert to explain that everything the med examiner did was bunk and the jury has to decide what expert to trust, not what the value of the information is. That's not something a jury is particularly good at doing. Beyond that, who you hire ends up costing the defense money and can be a problem for indigent defendants.
I'll give you an example from the rape/murder charge that I was on a jury for that we put a guy away for life. A test was used to determine the time between ejaculation and murder as the defendant's argument was that he had sex with but did not murder the victim. A prostatic acid phosphatase test was used to determine that the semen was deposited shortly before the murder. That is also a test that isn't well studied, particularly in my case that involved a decomposing body.
His DNA and that test alone were not enough for me to reach beyond a reasonable doubt. The timeline of her disappearance, the fact that she was found near his camp, and the fact that the ligature used to kill her was from his camp was. The test just added to a growing list, where it was no longer reasonable to have a doubt.
I have a background somewhat in the area of testing. No way I'd just take a test at face value. As a juror, are you able to get any clarity on stuff like that if you want?
Yeah, the inclusion of this test in any kind of deliberation would just muddy the waters. I don't see how that serves any goal of justice.
That's the issue I have with the justice system - it's much too loose with facts because it's designed around persuading non experts (and arguably jury selection is designed to reject people with high education or relevant background knowledge). The adversarial process gives each side an equal go at persuasion even if one side doesn't have a leg to stand on scientifically. The judge isn't in a position to disallow something that would be considered bullshit to an expert, and any qualified expert is allowed to sell out and present a biased interpretation of facts, even if 99% of their peers would disagree. More often than not, your resources determine whether or not you're right in the eyes of the law. It's bullshit.
Edit: if you're a physician on trial for malpractice, "A jury of your peers" would consist entirely of physicians in your area of practice, as they are the only people with the relevant understanding and background knowledge to evaluate whether your actions followed the standard of care or constitute malpractice. The fact that courts don't operate this way means that findings of guilt or innocence are basically a popularity/debate contest with a veneer of authenticity.
Agreed. Functionally, the laziness of the US justice system incentivizes quick and easy answers and simple findings of fact. Not much inquiry or investigation going on in your average case.
Additionally, the pool of "experts" consists primarily of people in a field who have already made the choice to sell their services to the highest bidder.
Now, of course, there are experts who jump into a courtroom because they've been righteously incensed by the subject matter at hand or want to make sure that facts and scientific conclusions are presented accurately, but in my experience, every medical "expert" I've met is a mercenary.
Edit: Your point about peers is a very good one, although I don't see courts expending resources to incentivize or force actual peers to convene for every malpractice dispute. No matter how much I wish they could.
That's a good way to put it - it's laziness. Maybe it's laziness though the burden of history where the structure of the system is cobbled together from hundreds of years of increasingly irrelevant procedures and precedent that can't be modernized with society. I'm not a legal scholar by any stretch, but the whole thing looks suspect to me.
I've heard from medical experts that appear not to be mercenaries, but my issue is that there's no way for the legal system to distinguish between a person who takes the job only when they're on the right side of an issue, and a person who will craft an argument to make their side seem right regardless of the facts. The process all seems very corrupt from the outside. It incentivizes financial conflict of interest.
I mean, context matters, I'm mostly talking about the ones employed in a civil litigation context.
I would say those approached by journalists are less likely to be in on the take.
That's what I'm talking about also. Experts who are being paid to express an opinion, but in a circumstance where their peers would hold a consensus opinion that opposes what they are stating in court. Those experts are mercenaries.
Just saw this, but yeah, definitely. I just wanted to be clear that I'm not dumping on experts in general lol I think people took offense.
And I think it's even more dangerous than that, it's not just people providing a solitary or fringe supported theory or conclusion.
Especially with a test like what was described, if you get an expert to put their thumb on the scales of an already pretty cloudy issue, it's even more effective in a case. If they're mainly doing that to help line their pockets, they'll be more likely to play fast and loose with their statements.
Have you met very many of these mercenaries?
Quite a few. It's definitely hyperbole, but in civil litigation, it's hard to get people who are actually doing research/still practicing their craft and have recent knowledge/are the real deal as they feel like they're better serving their interests by not wasting their time on a court case (which I find pretty hard to disagree with, tbh).
Edit: added the stuff about recent knowledge as there are definitely good intentioned people who will start doing this kind of work as they wind down their practice or research.