5 ms·

Of course prosecutors will favour expert witnesses that will help them get convictions. Why isn’t that obvious?

by Ma8ee 6y ago

bardworx 6y ago
Ok, maybe I’m naive, but why is that obvious? Not arguing just trying to understand. My rationale is: prosecutors have to weigh an “easy” conviction vs the possibility that labs that always guarantee results may be biased. In the event that they get caught up with a biased lab, wouldn’t it look bad for their reputation? As in, they can’t even perform due diligence on their sources, how can you trust them in a promoted role? Or am I just naive on how the legal system works?
- the_local_host 6y ago
  I think you're underestimating the usefulness of scapegoats. If biased results exist, a lot of people look more effective. If such a bias is discovered, only a subset of those people will be blamed.
- benlivengood 6y ago
  > In the event that they get caught up with a biased lab, wouldn’t it look bad for their reputation? As in, they can’t even perform due diligence on their sources, how can you trust them in a promoted role? I am not a lawyer but as I understand the U.S. criminal justice system (which is adversarial between defense and prosecution with the judge officiating and the jury picking the winner) prosecutors are not experts in particular technical fields which is why courts allow expert witnesses. The defense is responsible for calling their own experts who can dispute other biased witnesses. If no one successfully disputes an expert witness over time the prosecutor's trust in them is very likely to grow. A prosecutor will always claim they did due diligence by selecting a reputable expert witness up until it's proven that the witness was not in fact reliable, but claim (likely in good faith) that they had no way of knowing the expert witness was biased. A better solution might be to mandate that expert witnesses get independently tested but again that's something a defense council could facilitate and bring into evidence. If no defense team finds it valuable to do this kind of work then it's unlikely a prosecutor will see it as useful either. Lack of challenges implies that the evidence is more or less indisputable from a legal perspective.
  - mulmen 6y ago
    I wonder how much of this has to do with funding differences. Public defenders are famously underfunded but prosecutors have essentially unlimited resources. As a result they are on a fast-track to political fortune, especially if they "do their job well" and "win" (get a lot of convictions). How can the truth-finding benefits of the adversarial system be preserved while leveling the playing field by equalizing resources? My naive thought is that both parties pay into a common fund that is split equally between the prosecution and defense. But that seems like it has it's own set of pitfalls. Are there other models we can look to for ideas?
    - curryst 6y ago
      So there's an underlying problem here, which is that at our current rate of indictments, our court systems cannot support everyone going to trial. One of the reasons people in charge of funding want to starve the public defenders is that if they're actually good, people will be less willing to just plea out to a lower charge. So the growth will be non-linear as their success rate increases due to the funding, which they now need more of to service the extra cases they get from being good. One idea is that whoever introduces an expert witness must also pay for the other side's expert witness, up to the cost of your expert. The defense doesn't need to prove anything due to the presumption of innocence, so the defense gets free counter-experts and only have to pay for the counter-expert if they want to bring up an expert about something the prosecution doesn't want to talk about.
      - mulmen 6y ago
        Huh, that’s an interesting idea but it seems to only address one form of inequality. Clearly the incentives are perverse. If there are more cases brought than the system can handle then this just sounds like a band aid at best. The real issue is why are there so many cases?
  - nobody9999 6y ago
    >I am not a lawyer but as I understand the U.S. criminal justice system (which is adversarial between defense and prosecution with the judge officiating and the jury picking the winner) That process happens very rarely. Federal criminal cases are resolved via plea bargain in ~97% of cases and state criminal cases are resolved via plea bargain in ~94% of cases[0]. This is a travesty of justice, especially since most defendants are severely over-charged and often face long prison sentences if they actually insist on (and can afford) a trial. Those practices, along with cash bail, force even innocent people to plead guilty to avoid having their lives destroyed by bankruptcy, loss of employment, homes and even custody of their children. And once they have a criminal conviction, they are stigmatized for life and are shut out of many jobs. In most of these cases, the forensic evidence (if any) is never presented. For a discussion of this, as well as American forensic practices, see Blood, Powder and Residue[1], by Beth Bechky (Author discussion can be found here[2]). While there are no required standards for forensics labs in the US (with some exceptions[4]), there are accreditation programs (example[3]), and not all forensic laboratories are for-profit companies. I'm not defending the quality or independence of any particular forensic lab, but it's definitely more diverse than just a bunch of corrupt, rapacious scum sucking at the teat of prosecutors' budgets. That said, most criminal defendants are at a significant disadvantage when it comes to performing/challening forensic research, as many state and federal labs provide such services for prosecutors, while defendants need to pay, often through the nose for them. It's just another way the US "justice" system is stacked against criminal defendants. [0] https://www.nbcnews.com/think/opinion/prisons-are-packed-because-prosecutors-are-coercing-plea-deals-yes-ncna1034201 https://www.nbcnews.com/think/opinion/prisons-are-packed-bec... [1] https://press.princeton.edu/books/hardcover/9780691183589/blood-powder-and-residue https://press.princeton.edu/books/hardcover/9780691183589/bl... [2] https://www.c-span.org/video/?508130-1/blood-powder-residue https://www.c-span.org/video/?508130-1/blood-powder-residue [3] https://anab.ansi.org/en/forensic-accreditation https://anab.ansi.org/en/forensic-accreditation [4] https://www.justice.gov/opa/pr/justice-department-announces-new-accreditation-policies-advance-forensic-science https://www.justice.gov/opa/pr/justice-department-announces-... Edit: Added notation for reference [1]
- horsawlarway 6y ago
  I'll take a different approach than the other folks responding to you - There are plenty of profit motives involved that have little to do with securing future contracts with police departments. At the most basic - Source code reviews are expensive. They can often throw thousands of false flags that developers have to individually track down and verify are not problems. Then there's the reputation hit of admitting a mistake - If you've had a bug for the last 5 years that makes you less reliable, that alone is likely to impact future contracts. So given the option of revealing this, admitting the mistake, and tackling the cases it impacted... OR... simply sweeping it under the rug and fixing it internally - some companies will take option number 2 (possibly most companies).
- eptcyka 6y ago
  Prosecutors don't seek justice, they seek a conviction.
drdrey 6y ago
There are countries where the job of the prosecutor is to uncover the truth, not to convict someone at all costs: https://en.wikipedia.org/wiki/Inquisitorial_system https://en.wikipedia.org/wiki/Inquisitorial_system
- Ma8ee 6y ago
  I know. I live in such country. But even here it is better for the prosecutor’s career with many convictions.
- jerf 6y ago
  I doubt there's any system in the world where it's officially the job of a prosecutor to "convict someone at all costs". It certainly isn't in the US. Nevertheless....
  - 2112 6y ago
    Most of the very real dynamics that affect all of our lives at a policy-making / systemic level are never official. If you think the official stuff is a reflection of reality ... I don't know how to finish this sentence. Safe from it being "official", it is very much the job of a prosecutor in the US to convict someone at all costs. This is common knowledge.
    - Aerroon 6y ago
      The Soviet Union is a perfect example of this. They had set up a proper republic. It had a constitution, elections, there were government posts etc. The problem was that the Party came first. The official that held the government post might've had the legal power, but in reality they were rubber stamps for the Party.
- heavyset_go 6y ago
  Conviction rates are surprisingly high in a lot of the first world.
  - 6y ago
JoeAltmaier 6y ago
Sometimes the expert witness is in the department's own lab. It seems a tautology that they will favor conviction. Every officer bringing in evidence is begging "Give me something I can use to get this scumbag!" The pressure to fudge is enormous. A fairly simple step is to certify equipment independently, and to do blind testing (one sample is provided from evidence; another by an independent unrelated source). Of course this costs more, but anything else is effectively an experiment without a control.

Of course prosecutors will favour expert witnesses that will help them get convictions. Why isn’t that obvious?

by Ma8ee 6y ago

Of course prosecutors will favour expert witnesses that will help them get convictions. Why isn’t that obvious?

Ok, maybe I’m naive, but why is that obvious? Not arguing just trying to understand. My rationale is: prosecutors have to weigh an “easy” conviction vs the possibility that labs that always guarantee results may be biased. In the event that they get caught up with a biased lab, wouldn’t it look bad for their reputation? As in, they can’t even perform due diligence on their sources, how can you trust them in a promoted role? Or am I just naive on how the legal system works?

the_local_host 6y ago
I think you're underestimating the usefulness of scapegoats. If biased results exist, a lot of people look more effective. If such a bias is discovered, only a subset of those people will be blamed.
benlivengood 6y ago
> In the event that they get caught up with a biased lab, wouldn’t it look bad for their reputation? As in, they can’t even perform due diligence on their sources, how can you trust them in a promoted role? I am not a lawyer but as I understand the U.S. criminal justice system (which is adversarial between defense and prosecution with the judge officiating and the jury picking the winner) prosecutors are not experts in particular technical fields which is why courts allow expert witnesses. The defense is responsible for calling their own experts who can dispute other biased witnesses. If no one successfully disputes an expert witness over time the prosecutor's trust in them is very likely to grow. A prosecutor will always claim they did due diligence by selecting a reputable expert witness up until it's proven that the witness was not in fact reliable, but claim (likely in good faith) that they had no way of knowing the expert witness was biased. A better solution might be to mandate that expert witnesses get independently tested but again that's something a defense council could facilitate and bring into evidence. If no defense team finds it valuable to do this kind of work then it's unlikely a prosecutor will see it as useful either. Lack of challenges implies that the evidence is more or less indisputable from a legal perspective.
- mulmen 6y ago
  I wonder how much of this has to do with funding differences. Public defenders are famously underfunded but prosecutors have essentially unlimited resources. As a result they are on a fast-track to political fortune, especially if they "do their job well" and "win" (get a lot of convictions). How can the truth-finding benefits of the adversarial system be preserved while leveling the playing field by equalizing resources? My naive thought is that both parties pay into a common fund that is split equally between the prosecution and defense. But that seems like it has it's own set of pitfalls. Are there other models we can look to for ideas?
  - curryst 6y ago
    So there's an underlying problem here, which is that at our current rate of indictments, our court systems cannot support everyone going to trial. One of the reasons people in charge of funding want to starve the public defenders is that if they're actually good, people will be less willing to just plea out to a lower charge. So the growth will be non-linear as their success rate increases due to the funding, which they now need more of to service the extra cases they get from being good. One idea is that whoever introduces an expert witness must also pay for the other side's expert witness, up to the cost of your expert. The defense doesn't need to prove anything due to the presumption of innocence, so the defense gets free counter-experts and only have to pay for the counter-expert if they want to bring up an expert about something the prosecution doesn't want to talk about.
    - mulmen 6y ago
      Huh, that’s an interesting idea but it seems to only address one form of inequality. Clearly the incentives are perverse. If there are more cases brought than the system can handle then this just sounds like a band aid at best. The real issue is why are there so many cases?
- nobody9999 6y ago
  >I am not a lawyer but as I understand the U.S. criminal justice system (which is adversarial between defense and prosecution with the judge officiating and the jury picking the winner) That process happens very rarely. Federal criminal cases are resolved via plea bargain in ~97% of cases and state criminal cases are resolved via plea bargain in ~94% of cases[0]. This is a travesty of justice, especially since most defendants are severely over-charged and often face long prison sentences if they actually insist on (and can afford) a trial. Those practices, along with cash bail, force even innocent people to plead guilty to avoid having their lives destroyed by bankruptcy, loss of employment, homes and even custody of their children. And once they have a criminal conviction, they are stigmatized for life and are shut out of many jobs. In most of these cases, the forensic evidence (if any) is never presented. For a discussion of this, as well as American forensic practices, see Blood, Powder and Residue[1], by Beth Bechky (Author discussion can be found here[2]). While there are no required standards for forensics labs in the US (with some exceptions[4]), there are accreditation programs (example[3]), and not all forensic laboratories are for-profit companies. I'm not defending the quality or independence of any particular forensic lab, but it's definitely more diverse than just a bunch of corrupt, rapacious scum sucking at the teat of prosecutors' budgets. That said, most criminal defendants are at a significant disadvantage when it comes to performing/challening forensic research, as many state and federal labs provide such services for prosecutors, while defendants need to pay, often through the nose for them. It's just another way the US "justice" system is stacked against criminal defendants. [0] https://www.nbcnews.com/think/opinion/prisons-are-packed-because-prosecutors-are-coercing-plea-deals-yes-ncna1034201 https://www.nbcnews.com/think/opinion/prisons-are-packed-bec... [1] https://press.princeton.edu/books/hardcover/9780691183589/blood-powder-and-residue https://press.princeton.edu/books/hardcover/9780691183589/bl... [2] https://www.c-span.org/video/?508130-1/blood-powder-residue https://www.c-span.org/video/?508130-1/blood-powder-residue [3] https://anab.ansi.org/en/forensic-accreditation https://anab.ansi.org/en/forensic-accreditation [4] https://www.justice.gov/opa/pr/justice-department-announces-new-accreditation-policies-advance-forensic-science https://www.justice.gov/opa/pr/justice-department-announces-... Edit: Added notation for reference [1]
horsawlarway 6y ago
I'll take a different approach than the other folks responding to you - There are plenty of profit motives involved that have little to do with securing future contracts with police departments. At the most basic - Source code reviews are expensive. They can often throw thousands of false flags that developers have to individually track down and verify are not problems. Then there's the reputation hit of admitting a mistake - If you've had a bug for the last 5 years that makes you less reliable, that alone is likely to impact future contracts. So given the option of revealing this, admitting the mistake, and tackling the cases it impacted... OR... simply sweeping it under the rug and fixing it internally - some companies will take option number 2 (possibly most companies).
eptcyka 6y ago
Prosecutors don't seek justice, they seek a conviction.

drdrey 6y ago

There are countries where the job of the prosecutor is to uncover the truth, not to convict someone at all costs: https://en.wikipedia.org/wiki/Inquisitorial_system https://en.wikipedia.org/wiki/Inquisitorial_system

Ma8ee 6y ago
I know. I live in such country. But even here it is better for the prosecutor’s career with many convictions.
jerf 6y ago
I doubt there's any system in the world where it's officially the job of a prosecutor to "convict someone at all costs". It certainly isn't in the US. Nevertheless....
- 2112 6y ago
  Most of the very real dynamics that affect all of our lives at a policy-making / systemic level are never official. If you think the official stuff is a reflection of reality ... I don't know how to finish this sentence. Safe from it being "official", it is very much the job of a prosecutor in the US to convict someone at all costs. This is common knowledge.
  - Aerroon 6y ago
    The Soviet Union is a perfect example of this. They had set up a proper republic. It had a constitution, elections, there were government posts etc. The problem was that the Party came first. The official that held the government post might've had the legal power, but in reality they were rubber stamps for the Party.
heavyset_go 6y ago
Conviction rates are surprisingly high in a lot of the first world.
- 6y ago

JoeAltmaier 6y ago

Sometimes the expert witness is in the department's own lab. It seems a tautology that they will favor conviction. Every officer bringing in evidence is begging "Give me something I can use to get this scumbag!" The pressure to fudge is enormous. A fairly simple step is to certify equipment independently, and to do blind testing (one sample is provided from evidence; another by an independent unrelated source). Of course this costs more, but anything else is effectively an experiment without a control.