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PostPosted: Wed May 25, 2016 2:57 pm 
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I've been thinking on this off and on after the discussion on the case on bite-mark evidence. It may be a little late in the year to be discussing new case ideas, but I'll go ahead and throw it out there.

Basically the case would be to punish "expert" testimony if that testimony can later be proven to be false beyond a reasonable doubt. The punishment would be that the expert gets whatever punishment (x years of imprisonment, death penalty, etc.) the defendant faced. A few examples, all of which have happened before:

An expert makes false claims about the certainty of the evidence that is deceives the jury.
An expert claims a conclusion is proven by science, but the science or process they used is debunked at a later date and shown to be false.
An expert equates a "match" with positive identification in testimony to a jury.

The basic idea would be that if any given testimony, when presumed true, is "good enough" to help convict another person, then that same testimony, if proven false, is "bad enough" to convict the witness. If an expert isn't certain enough about what he says to put his own neck on the line, then the defendant's neck shouldn't be at risk either.

My own guess is that the consequence of such a policy would be that every expert would hedge his bets and be very clear to the jury. Such as telling the jury about any flaws in the process that could cast doubt on the lab finding. And telling the jury when a "match" isn't the same thing as a positive identification. And admitting to the jury that his methods may be wrong, may be proven false at a later date, instead of appealing to the idea of the omniscience of science in American popular culture.

Anyway it seemed like an appealing case idea that somebody might be able to go far with. I tend to like cases that deal with a very specific but significant issue, and that use a more intellectual rather than factual reasoning for the justifications. Any thoughts?

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PostPosted: Thu May 26, 2016 3:12 am 
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Seems a bit subjective. Who decides whether the testimony is "correct " or not? Unless you mean when a witness outright lies, in which case he can be punished for perjury in the status quo. Furthermore, what about accidents? If you make an exception for accidentally inaccurate testimony, how will anyone ever prove intent? They can just say "I didn't know the scientific evidence was inaccurate."

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PostPosted: Thu May 26, 2016 3:01 pm 
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So this is just a random idea I'd been thinking of so there aren't specifics worked out. From a broader perspective, assuming there was some workable implementation plan, I'm thinking of things like: Is it just to punish a false witness with potentially severe sentences? Does pegging the punishment to the harm makes sense? When someone claims to be an expert, and the jury convicts someone because "science proved it", if this is shown to have been false, is it even necessary to prove intent to convict the expert of false testimony? Maybe I should have posted this somewhere else since I guess my motive was to start a broader discussion more than just talk about its merits specifically as a debate case.

Specifically though:
-Who decides whether expert testimony is correct: Who is already deciding now whether expert testimony is true when they use expert testimony to convict someone? A jury. If at a later date, new facts come out that contradict the story the expert told, or if several other experts would testify to claim the science used was debunked, then a jury would hear that trial too.
-About accidents and intent: The whole idea I'm chewing on is whether it's really just to protect an expert witness with the "intent to falsify" standard. People can get convicted based on a jury's factual view of how accurate expert testimony is; is it wrong for an expert to get convicted on a jury's factual view of how inaccurate his testimony was?

Basically I'm coming from the perception that someone needs to take responsibility for the accuracy of forensic science. If an expert isn't confident enough in the veracity of his science to put his life on the line, should the jury be using that science to put the defendant's life on the line? All the expert really would have to do to protect himself is tell the jury whether and why he thinks there's a possibility he could be wrong; then the jury can keep that in mind when they weight the evidence against the defendant. There are plenty of examples in the literature where innocent people were falsely convicted, because an expert was loose with his testimony and caused the jury to believe science had proven guilt.

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PostPosted: Thu May 26, 2016 10:50 pm 
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Oh I see what you're saying. If you want a purely philosophical response to this idea, here would be mine:

Punishing an expert the same amount as the person he helped convict would be a disproportionate punishment. Remember, the expert was merely negligent, he didn't have a depraved mind nor did he actually mean to wrongfully convict someone. To say that a negligent witness should receive as much harm as he accidentally caused is counter to our intuitive sense of what is just, and is also inconsistent with how our justice system operates.

Our justice system generally only uses "eye for eye, tooth for tooth" when the perpetrator fully intended the harm he caused. That's why we punish those who commit manslaughter less than those who commit murder. If you really think that a negligent witness who accidentally causes an unjust life imprisonment should get a life sentence himself, why shouldn't everyone convicted of negligent homicide be automatically sentenced to the death penalty?

Also, from a more practical perspective: what if the person just has a minority view on some issue? Should he be thrown in prison just because a lot of people think the methods he uses are unscientific? Remember the majority is not always right.

Finally, even if your entire hypothesis were correct, you still shouldn't give a witness the same sentence as the defendant he wronged. You'd be punishing the witness MORE than the defendant, because the defendant is typically exonerated before he's served his entire sentence.

In any case, this is an intriguing issue and a very interesting question. :)

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PostPosted: Fri May 27, 2016 5:07 am 
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Quote:
Also, from a more practical perspective: what if the person just has a minority view on some issue? Should he be thrown in prison just because a lot of people think the methods he uses are unscientific? Remember the majority is not always right.
A conviction is supposed to be based on guilt that is beyond a reasonable doubt. If there is credible scientific disagreement on a method or procedure of forensic science, but an expert's testimony to a jury just says "so my science has proven xyz", then he may cause the jury to believe something is beyond a reasonable doubt when it is not.

Quote:
Finally, even if your entire hypothesis were correct, you still shouldn't give a witness the same sentence as the defendant he wronged. You'd be punishing the witness MORE than the defendant, because the defendant is typically exonerated before he's served his entire sentence.
Minor repair - the witness serves whatever term the defendant has. If the defendant served six years of a life sentence and then was exonerated on proof of innocence, the false witness gets six years.

Quote:
Punishing an expert the same amount as the person he helped convict would be a disproportionate punishment. Remember, the expert was merely negligent, he didn't have a depraved mind nor did he actually mean to wrongfully convict someone. To say that a negligent witness should receive as much harm as he accidentally caused is counter to our intuitive sense of what is just, and is also inconsistent with how our justice system operates.

Our justice system generally only uses "eye for eye, tooth for tooth" when the perpetrator fully intended the harm he caused. That's why we punish those who commit manslaughter less than those who commit murder. If you really think that a negligent witness who accidentally causes an unjust life imprisonment should get a life sentence himself, why shouldn't everyone convicted of negligent homicide be automatically sentenced to the death penalty?
That's a very good point.

-It's not the usual case, but sometimes it is clear that the witness knew better, so he must have had intent
-In cases where we infrequently are able to catch the wrongdoer, sometimes the punishment will exceed the crime just to make the deterrence efficient

-Those are accessory issues. The real question for me is, does the nature of expert testimony preclude the applicability of intent? Put in other words, when an eye witness identifies a suspect, people will look at that and think "so it is the opinion of this witness that the suspect is guilty". When an expert testifies on the basis of forensic science, they typically won't present it as "this is my opinion" but as "this is objective, repeatable, provable fact". The whole point of forensic science as such is that the personality/intent of the scientist is supposed to be irrelevant. My question is, is it fair for this to work both ways?

Perhaps? a better way wouldn't be to punish the witness, but add rules to how the evidence can be presented and instructions given to the jury. Can we change things up so the jury perceives that the testimony is just another credible opinion (and they can know what makes it credible and how much so)?

An alternative way to think of this in economic terms: There is a risk and a cost that science is inaccurate - or that the science was accurate but the distinction of what is and isn't proven by the science gets muddled (this tends to be the most common problem with expert testimony). The scientist/expert is the one generating the risk, but the defendant is the one that might pay for it - this is an externality. If the scientist/expert knows that he could face the same risk, then we've internalized the externality. Hypothetically this should reach an efficient outcome, where the certainty of the claims the expert makes is balanced by his own fear of the risk.

Anyway, I know as a generalization that it's impossible to have a perfect system, but when I read specific instances of what sometimes goes wrong, the ruin to an innocent person's life because of false testimony, I get riled up pretty easy. Maybe this isn't the best fix, it just seems like there has to be something we can do.

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Caleb Smith
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"But I declare that Carthage must be destroyed."
Cato the Elder


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