The “lung float” test claims to help determine if a baby was born alive or dead, but many medical examiners say it’s too unreliable. Yet the test is still being used to bring murder charges — and get convictions.
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?
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.
No, jurors are not allowed to ask questions. Like I said, it wasn’t the lynchpin in the case(deliberations were decidedly short). It was useful to add to a much more extensive list (even more extensive than I included). That’s why I don’t particularly like the expert witness system the US has, like I said.
Edit: and to clarify the reasoning for the test, the defendant said he had sex with the victim several days before. The background of the test was to show there was no biological breakdown to suggest that. My memory isn’t perfect on it since it was several years ago.
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.
Have you met very many of these mercenaries?
No, jurors are not allowed to ask questions. Like I said, it wasn’t the lynchpin in the case(deliberations were decidedly short). It was useful to add to a much more extensive list (even more extensive than I included). That’s why I don’t particularly like the expert witness system the US has, like I said.
Edit: and to clarify the reasoning for the test, the defendant said he had sex with the victim several days before. The background of the test was to show there was no biological breakdown to suggest that. My memory isn’t perfect on it since it was several years ago.
Here’s a link to the case that gives a good overview, but realize that it doesn’t have ALL the evidence we reviewed. https://www.fredericknewspost.com/news/crime_and_justice/courts/man-convicted-in-1996-rape-and-murder-of-frederick-girl/article_a71161c5-f52a-5d1c-844d-0e88e3f9cae8.html