Super Lawyers
William C. Altreuter

Wednesday, June 06, 2018

The two part NYTimes article about the Texas man convicted of murdering his wife on the basis of blood splatter evidence is an interesting jumping off point for thinking about the way that law relies on science, and on the breakdown that occurs when science gets pushed too hard. Really what we are talking about are two ways of considering evidence, and the way that the law operates only superficially resembles the approach science takes: a conclusion drawn "to a reasonable degree of scientific certainty" is close enough for jazz, but not really the way that science regards anything. I am sympathetic to Errol Morris' view -- I have to be, if I want to believe in evidence at all-- but "a reasonable degree of scientific certainty" is always going to be an uncomfortable fit with "proof beyond a reasonable doubt". The blood splatter stuff impresses me as pretty shaky science, at least as it is described in the article, but really the psychology of eye witness identification suggests that Redd Foxx may have been on to something: Who you gonna believe, me or your lyin' eyes?

Of course, as a practical matter criminal convictions, or even civil verdicts, don't typically hinge exclusively on scientific proof, and juries are explicitly instructed to take into account the totality of the credible evidence, and interpreted through their personal life experience. My theory of jurisprudence is informed more by Rousseau than by any concept of absolute truth; I am not prepared to be swallowed up by solipsism.

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