Many drunk driving cases in Michigan and elsewhere rise and fall on the testimony of experts. This is because the rules of evidence provide that only expert witnesses can offer their opinion at trial.
Was the breath or blood test reliable? Only an expert can answer that question. A police officer is not qualified.
Did the driver’s medical condition impact the breath or blood test? Again, only a question an expert can answer.
And if the defense calls a witness to establish that his client’s breath test was contaminated by GERD or made faulty because of a breathing issue, well then the state will call its own expert to show this is not true. This is the classic battle of the experts.
But what exactly is an expert? The leading case in this regard is Daubert[i], and this set the so-called Daubert standard.[ii] Basically, it’s up the court to decide if the witness has ample specialized knowledge, training or experience to allow him or her to testify as to an opinion.
One highly touted qualification often presented by experts is the fact of publication. Generally, publication in “peer reviewed” science journals suggests that a witness has reached some level of credibility in the profession.
So what happens when the publication isn’t “all that?” It can often be difficult for a lay person, such as a judge or attorney, to really know the difference.
Such was the topic of a recent New York Times article entitled “Scientific Articles Accepted (Personal Checks, Too)” This article speaks of the shadowy alternative universe of pay to play academics.
Those scientists had stumbled into a parallel world of pseudo-academia, complete with prestigiously titled conferences and journals that sponsor them. Many of the journals and meetings have names that are nearly identical to those of established, well-known publications and events.
A big problem then is for scientists and non-scientists alike to know the difference between a legitimate publication and one that is not. Especially when experts pad their resumes with what look like prestigious journal publications. As stated in the NYT article:
But some researchers are now raising the alarm about what they see as the proliferation of online journals that will print seemingly anything for a fee. They warn that non-experts doing online research will have trouble distinguishing credible research from junk. “Most people don’t know the journal universe,” Dr. Goodman said. “They will not know from a journal’s title if it is for real or not.”
This problem is all too real, and bad experts can cause a person accused of DUI to be falsely convicted. The only way to combat this currently is for a defense attorney to carefully vet the resume of any expert offered by the state.
[i] Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993).
[ii] Federal Rule of Evidence 702 and Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993).