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Three Kinds of Lies in Federal Criminal Cases

Kish Law LLC

I have often enjoy re-telling the old joke about how there are three kinds of lies: 1) Lies, 2) Damn Lies, and 3) Statistics.  Many of my federal criminal cases here in Atlanta and elsewhere involve one or more of these three types of “incorrect” information.  Some government witnesses tell little lies, while others tell big whoppers that are flat-out lies designed to help the liar and hurt my client.  On some other day I will pontificate about how the system of rewarding “cooperating witnesses” is a perversion of our justice system that leads to some its greatest failures.  But today, I want to talk about how statistics and their analysis and manipulation can sometimes be the greatest lie of all.

Now remember, most lawyers are not “numbers people.”  That’s the reason we went to law school, because some teacher or school just flat-out insisted that we needed to learn calculus. For the most part, attorneys are not at their strongest when dealing with mathematic or scientific issues.  While most good trial lawyers are bright and can quickly pick up new concepts, this is not our main area of expertise.

So, we have a system where most of the main participants are not all that great with numbers or science, and then we have cases that are chock full of both types of information. Here is what usually happens.  A prosecutor hears about a new type of evidence, such as DNA analysis and comparisons to see if the person on trial had some connection with the victim or crime scene.  It’s only been 30 years since this evidence was first accepted into court, and in the early years virtually all prosecutors and defense lawyers simply deferred to whatever the “experts” claimed.  Then as time progressed, more and more lawyers got comfortable with the basic science behind DNA analysis, and began poking holes in the claims, leading to the far too many cases where DNA analysis has actually exonerated previously convicted Defendants.

Cases involving statistics often follow the same path.  Federal criminal cases arise from a variety of federal agencies, but inside each agency there usually is some small group responsible to keeping and analyzing statistics.  These are the supposed “experts.” After a few years of analysis, these experts massage the numbers to the point where they look as if the analysis shows that a person or company committed a crime, like fraud for example.  The poor criminal defense attorney (the same man or woman who after all went to law school because math was not their strong suit) now has the task of unspooling whatever data and expert analysis is involved.

Most good federal criminal defense attorneys make a practice of using highly competent and experienced experts of their own when taking on a case involving statistics, scientific concepts or otherwise unusual evidence.  I really enjoy working with the experts, for the interchange of ideas back and forth often helps me identify weaknesses in my defense, holes we can poke in the prosecution’s presentation, and often opens new areas of investigation that leads to other helpful evidence.

Another way to handle statistics is to simply sit down and plow through them with an open mind.  It often helps when, as in my office, the attorney is assisted by very bright people who are very accomplished in using various tools for understanding large quantities of data.  But often, there is no substitute for having the lawyer him or herself methodically go through the data to see if the government’s statistical claims hold water.  I sort of enjoy the process of learning new data and analyses, and it often helps that I know the numbers better than the lawyer on the other side of the courtroom.  And, in those few cases where I really know the numbers and find some weakness in the government’s presentation, I get to pull out my old joke about the three kinds of lies!

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