Why All Trial Lawyers Should Study Metrology
A Review of Vosk and Emery’s Forensic Metrology By Andrew Mishlove, Esq.
Forensic Metrology, Scientific Measurement and Inference for Lawyers, Judges and Criminalists, by Ted Vosk and Ashley Emery, CRC Press, 2015Metrology is the study of measurement. I confess that until a few years ago, I did not know that. In 2009, the National Academy of Sciences, an agency of the United States Congress, released its landmark Report on the state of Forensic Science in America. This report was a damning indictment of many standard practices in crime laboratories throughout the country. The report included a series of recommendations that have gone, largely, ignored by crime laboratories. One of those recommendations was that measurements in forensic science should include something called an “uncertainty budget.”
What the hell is an “uncertainty budget” and how is it determined? That question led me and a number of my colleagues to the study of metrology. Lawyers active in the National College for DUI Defense are fortunate to be acquainted with Ted Vosk. Ted is an amazing fellow who has led an amazing life. He has overcome huge physical challenges to become a fine athlete. He is also the smartest lawyer I have ever met. I anticipated the Vosk and Emery book with both delight and fear: delight, because I knew that I would learn something important; and fear because I knew that much of it would be over my head. I was right on both counts.
What is surprising about a book with such a mundane title is that it is an enjoyable, fascinating read. Its breadth is impressive, with the entire first chapter a review of the philosophy and history of science. A student of science should be familiar with subjects like Popper’s theory of falsifiability, and Kuhn’s theory of scientific paradigm shifts. I studied these in college many years ago. Seeing them in Vosk and Emery, I was reminded of why they are important and delightful. Simply put, Popper said that in order for a scientific statement to have meaning, it must be falsifiable. A statement that cannot be proven false, even theoretically, is meaningless, or at least, not scientific. Practically speaking, if there is no set of facts that would convince a lab analyst that a test result is mistaken (and this seems to be the case quite often), then the test result is no longer scientific. Kuhn discussed scientific paradigm shifts, such as the shift from the geocentric (Earth is the center) to the heliocentric (the Sun is the center) view of the solar system. To Kuhn, it’s not that one view is right and the other is wrong; but rather, it’s that one view stopped working as well, given new observations, and the other started working better. It’s a process that takes time; and it is the manner of scientific progress. The established order fights against it. So, practically speaking, we see forensic laboratories fighting against the new paradigm of uncertainty analysis, preferring to admit no possibility of uncertainty, and even confessing margins of error only begrudgingly.
Vosk and Emery review the history of science, the nature of empiricism, the hallmarks of the scientific method, and the interface of science and the law. The main topic, of course, is the study of measurement itself: metrology. The reader is provided with simple definitions and examples of the nature of this discipline. Next, the reader is taught:
“Armed with a basic understanding of forensic metrology, even a nonscientist lawyer or judge can engage in critical analysis of forensic measurements across a broad spectrum without having to develop a separate expertise in each. It can enable legal professional to: better understand evidence from forensic measurements; better prepare and present cases that involve such evidence; and give the lawyer and judge alike the ability to recognize poor measurement practices and play their respective roles in preventing bad science from undermining the search for truth in the courtroom.”All trial lawyers deal with forensic science on an ongoing basis. Skilled DUI defense lawyers are usually confronted with a breath or blood test result, using some type of analytical measurement. Personal injury lawyers often deal with accident reconstruction, involving various types of measurement of speed, distances, vector forces, etc. Criminal defense lawyers routinely face DNA tests, fingerprint evidence, bite mark evidence, ballistics, etc. Judges are often confronted with the decision of whether or not to admit scientific testimony into evidence. Lawyers and judges, however skeptical, are often ill-equipped to critically assess science.
The technicians that present this type of evidence in court usually have an aura of credibility that goes far beyond what is deserved, given the uncertain nature of some of the forensic disciplines in general, and the sloppy manner of forensic science in practice. I use the term “technicians” because these witnesses are rarely true scientists; they are persons trained to perform a certain measurement procedure, rather than students of the theory and practice of the measurement. It is much like my Mom, who knew how to operate a car, but had no idea why it needed gasoline. When these persons take the witness stand, however, they wear a cloak of believability based on their label of “scientist.” Even lawyers and judges, who are supposedly trained to be critical thinkers, are intimidated by these “scientists.”
The lawyer who lacks a basic understanding of forensic metrology is, therefore, at a huge disadvantage when dealing with forensic evidence. Vosk and Emery’s book was necessary.
The book has two basic sections, the first of which is primarily a narrative with a significant amount of mathematics, explained in elementary terms. The effort of the reader is rewarded with an understanding of the subject. The second section is primarily mathematical, with an ancillary narrative. This section requires a lot more effort.
The National College for DUI Defense now has an annual metrology course taught by Mr. Vosk, among others, and directed by my good friend Joseph St. Louis. The course is valuable, not only for DUI lawyers, but for all trial lawyers who handle cases involving forensic science; that is, all trial lawyers.
Forensic Metrology is a difficult book. It requires the reader to work at it. I even found myself reading some sections aloud, so that I could grasp its concepts. Even so, it was enjoyable and rewarding. Much of the second, mathematical, section was beyond my grasp. Nevertheless, this is an outstanding text, even for the mathematically challenged. Heck, I even learned some math. Now, I’ll go to work, again, rereading the second section.