In a system of justice, lives can be forever altered by what is considered legally recognizable evidence. So when the term "junk science" is thrown around, people get defensive in a hurry. Junk science can be an intoxicant that seduces unwitting, persuadable jurors. It is particularly dangerous when the bad science is packaged and delivered by an authoritative sounding expert. Junk science can be sold as sweet honey but when more closely examined turn out to be as foul as week old garbage.
If bad science makes it's insidious way into the jury box, can it be fixed on appeal? After all, science not built on empirical research, but instead on anecdotal observation is an anathema to any system of justice, civil or criminal. Is this not a true statement?
In cases tried to jury verdict, Texas appellate courts, although articulating the same standards for scientific reliability, have different methods for evaluating it. More importantly, Texas civil appeals use different standards for bad science firewall protection. In civil appeals that means a new, independent review of the purported science even if not otherwise properly preserved for review in the trial court.
That last sentence should make criminal defense lawyers, who continually read the word "waiver" in their criminal appeal decisions, skin crawl. It does mine.
Yep, a civil defendant who botches preservation of error on expert testimony gets a whole new opportunity to complain about it on appeal by way of a legal insufficiency point. This type of error is never waived in civil appeals in Texas.
The magic is in the civil treatment of legal insufficiency of evidence review. An appellate court in Texas sitting with it's civil hat on makes an independent determination of whether the evidence is junk science, and if it so finds, will carve it out of the evidentiary record, and decide the remaining evidence is legally sufficient to support the jury verdict.
When did that last happen in a criminal case? Never to my knowledge.
Innumerable civil defendants have been bailed out by appellate courts in this way. Insurance and corporate defense lawyers must say prayers of thanks every night to The Supreme Court of Texas (SCOTX), the court of last resort in civil cases in Texas, for the gift of an appellate mulligan.
This gift to civil defendants came by way of Merrell Dow Pharamaceuticals, Inv. v. Havner, 953 S.W.2d 706 (Tex. 1997), In Havner, SCOTX undertook independent review of the science that led to a plaintiff's verdict in a products liability case against the maker of a morning sickness drug, Bendectin. Basically, the plaintiff alleged a birth defect, limb reduction, was caused by her mother's use of Bendectin during pregnancy. Plaintiff used epidemiological studies to establish causation.
Epidemiological studies examine existing populations to determine if there is an association between a disease or condition and a factor suspected of causing that disease or condition.
SCOTX noted that although vetted before trial, the civil defendants in Havner had objected to "some but not all of [the causation expert] testimony" during trial. Havner at 709. SCOTX, however, did not find waiver. Instead SCOTX found the epidemiological studies that underpinned the plaintiff's claim were not sufficiently scientifically reliable and reversed and essentially rendered judgment in favor of the civil defendant. Havner at 730.
In other words SCOTX decided the trial judge was wrong, the en banc intermediate court of appeals reviewing the same evidence was wrong, and even though at trial the civil defense lawyers had not objected when they should have to preserve the error, the civil defendant was nevertheless right on the science and should win. Further, SCOTX found not only were the civil defendants right on the science, but that without the evidence, the jury could not have found civil liability. Legally insufficient evidence to support the verdict means no verdict. Civil defendant wins. Thanks for playing, Plaintiff.
Contrast this with a hypothetical criminal case that, unfortunately, in some variant happens all the time: Defendant gets arrested with, say, 1.5 grams of crack cocaine. A law enforcement officer, testifies that because this defendant was also found with, say, $500 in cash in denominations of $10 and $20's, the criminal defendant possessed it with intent to deliver. No empirical data citing studies this is true, just this law enforcement officer's anecdotal experience.
The jury also hears evidence the defendant has no job for which wages are reported to the government. Despite some defense evidence that the defendant works mowing yards and digging trenches for non-reported cash, the jury believes the cop. Defendant is convicted and sentenced to a full 20 years in prison instead of the maximum 10 years that would be applicable if the jury would have found there was possession without the intent to deliver.
What if the law enforcement officer's testimony came in without objection?
Waived for appellate review. Happens all the time in criminal appeals in Texas. Moreover, even if preserved, Texas appeal courts have found this kind of law enforcement "background" opinion testimony, though not necessarily empirically based, admissible. In other words this "science" is not subject to attack in the way it would be in a civil context under Havner.
Thanks for playing, criminal defendant.
What's the difference between the situation in Havner and my hypothetical? I believe there is essentially none.
This must make intellectually honest intermediate appeal court judges and their law clerks shutter. But there it is. Go figure.