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Mar 07 2014

If Attorneys Argued Like Creationists

I had this idea come to me during a discussion in a hangout recently. Imagine for a moment that a defense attorney in a murder case used the kind of argument that young earth creationists use against, say, radiometric dating. In response to every piece of evidence presented, they would name all the “assumptions” being made.

Exhibit A: We have the murder weapon, it’s registered to your client and the bullet found in the victim is a ballistics match.

But have you tested every single gun in the world? How do you know that there isn’t another gun out there that would leave the same markings? Aren’t you just assuming that invisible creatures didn’t plant that evidence at the scene?

Exhibit B: We have powder flash from the gun on your client’s sleeve and his fingerprints on the gun.

But aren’t you assuming that there isn’t some supernatural force that created his sleeve with the appearance of powder flash on it? Aren’t you assuming that there wasn’t another person in the room with the same fingerprints that knocked my client out with a drug, knocked him out, carried him here, killed the victim and then planted the powder flash on his sleeve?

Exhibit C: We found your client’s DNA under the fingernails of the victim and it matches scratch marks on the defendant’s arms during a struggle.

That doesn’t prove anything. You’re assuming that my client’s DNA didn’t migrate under the victim’s fingernails through some process science doesn’t understand. Can you prove that both the defendant and the victim weren’t kidnapped by aliens who set it up to make my client look guilty? There’s just so many assumptions in all of this evidence that there’s nothing but reasonable doubt.

37 comments

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  1. 1
    Raging Bee

    And on top of all that, most — if not ALL — of the things creationists call “assumptions” really aren’t. They’re conclusions based on a preponderance of evidence.

  2. 2
    colnago80

    Exhibit C: We found your client’s DNA under the fingernails of the victim and it matches scratch marks on the defendant’s arms during a struggle.

    How can you be sure that the DNA didn’t come from another individual? Have you tested all the people in the world to exclude them from a match?

  3. 3
    Kevin Alexander

    Don’t give them any ideas. That tactic would work on some juries.

  4. 4
    oualawouzou

    Yes, but WERE YOU THERE?

  5. 5
    John Pieret

    Much simpler:

    We have all this evidence …

    Jurors: WERE YOU THERE?

  6. 6
    davidworthington

    Two things:
    1) If I remember Bugliosi’s book correctly, one of Charles Manson’s defense attorney’s basically tried this strategy, objecting to everything including a witnesses name because it was hearsay–he heard it from his mother.
    2) There is, or was, an audience participation theater in Salem, MA that reenacted one of the witch trials and the witnesses in that show used exactly the kinds of strategies you describe above.

    Dave

  7. 7
    Artor

    Aren’t you just assuming that the Universe works on reliable principals, and that the laws of physics apply equally everywhere?

  8. 8
    Chiroptera

    Huh. You’d think that creationist Christians would have been convinced of OJ’s innocence in that murder trial a couple of decades ago. On the other hand, OJ’s lawyers’ arguments were at least within the realm of possible, and that’s usually the kiss of death as far as apologetics go.

  9. 9
    Modusoperandi

    Now, look, we both have the same evidence. We just interpret it through different worldviews, that’s all. It’s my hope that I can, over the course of this trial, convince you that my worldview, where my client is innocent, is the correct one. And also people rode dinosaurs.

  10. 10
    David C Brayton

    Would be an excellent SNL skit.

  11. 11
    alanb

    I’m waiting for someone to invoke the uncertainty principle, or zero-point energy, or the fact that some scientist somewhere was wrong means that we can’t trust basic scientific principles.

  12. 12
    Chaos Engineer

    My experience is:

    Exhibit A: We have the murder weapon…
    Response: The defendant might have owned the murder weapon, but that doesn’t mean he’s the person who fired it.

    Exhibit B: We have powder flash residue…
    Response: The defendant might have fired his gun at about the time of the murder, but that doesn’t mean that he was anywhere near the victim. The victim could have been murdered by a different gun entirely.

    Exhibit C: We have DNA evidence…
    Response: The defendant was certainly hostile towards the victim, but that doesn’t prove that he killed him. In fact, the victim might very well be alive even now.

    Why are we even talking about this? This is all just micro-evidence and no one disputes any of it! But where’s the macro-evidence that shows that the defendant murdered the victim?

  13. 13
    suttkus

    I wrote this some years ago, about using creationist apologetics in regard to criminal investigations.

    http://www.noanswersingenesis.org.au/a_parable.htm

  14. 14
    DaveL

    He may not have been a lawyer per se, but while representing himself in court Colin Ferguson did in fact make arguments very much along these lines.

  15. 15
    wscott

    There was a great story in Kurt Busiek’s comic Astro City, which is set in a world where there are superheroes. A defense attorney gets his client off on a murder charge despite eyewitnesses and tons of physical evidence by arguing “How do you know it wan’t a shapeshifter? Or an evil clone from another dimension? The witnesses could’ve been mind controlled!” etc. All of which were actually plausible scenarios in that universe.

  16. 16
    theschwa

    - Don’t the laws of thermodynamics prove my client is innocent?

    – Also, the only reason the prosecution is bringing this case is because they HATE my client. The prosecutor has some trauma in his past that makes him hate my client even though my client loves the prosecutor and wishes only to have a relationship with the prosecutor.

    – (Sure, that relationship is one where the prosecutor spends every waking moment telling my client how great he is, but that is not important right now…)

  17. 17
    Abby Normal

    How do you know the universe wasn’t created 5 minutes ago by some being of unlimited power? All our memories, all this so called “evidence,” would be indistinguishable from the old universe theory the persecutor would have you believe. But that’s just a theory. We cannot convict a man for a crime when he may not even have even existed at the time the crime supposedly took place.

  18. 18
    screechymonkey

    David C. Brayton @10:

    Would be an excellent SNL skit.

    “Ladies and gentlemen of the jury, I’m just a simple caveman. I was out riding my dinosaur one day….”

  19. 19
    dingojack

    Don’t laugh. See the ‘Chewbacca defence’ or the ‘Twinkie defence’ – Ah yes, justice at it’s finest!
    Dingo

  20. 20
    Reginald Selkirk

    There is a sub-genre of lawyers writing Creationist books. The claim is that lawyerly “logic” is superior to other forms of reasoning. Probably you have heard of Darwin on Trial by Phillip E. Johnson ASIN: B004H05GTO . But that’s not the first. There is also Darwin Retried: an Appeal to Reason by Norman Macbeth ISBN-13: 978-0876451052.

  21. 21
    Michael Heath

    oualawouzou writes:

    Yes, but WERE YOU THERE?

    Exactly what I was thinking. I’ve had this one stated to me in meat-world as a, “check-mate Darwinist” moment. This person is a devout disciple of Sarah Palin.

  22. 22
    Michael Heath

    Abby Normal writes:

    How do you know the universe wasn’t created 5 minutes ago by some being of unlimited power? All our memories, all this so called “evidence,” would be indistinguishable from the old universe theory the persecutor would have you believe. But that’s just a theory. We cannot convict a man for a crime when he may not even have even existed at the time the crime supposedly took place.

    While this is an extreme argument, it’s also the only logically rational creationist argument I’ve encountered. Of course creationists don’t make it since they’re by definition irrational and not motivated to discern and promote what is objectively true, at least those who are adults.

    I’ve long speculated that this argument was perpetrated by people who accept science and use this argument to reveal what a rational creationist argument looks like – a kind of un-welcomed charity towards creationists.

  23. 23
    theschwa

    “Look, you heard the prosecutor say this was their ‘theory of the case’. And it just that: a THEORY. Not a fact.”

  24. 24
    eric

    Somewhat related to this topic, IIRC the US courts have really, actually ruled that praying to hurt someone, voodoo, etc. are not assaults because no reasonable person would think that it would work. So they’ve already staked themselves to an empirical view of causes.

    ***

    Although I am mildly worried that the public’s opinion of DNA may have swung too far in the other direction. I.e. juries might too easily equate the presence of someone’s DNA with criminal guilt. Ed’s example of “in the wounds” is pretty straightforward, but in less clear-cut examples it really doesn’t mean that much except “presence around something that’s been around the collection site, sometime in the last couple of days or weeks.” If you and I are friends and we hang out together at a bar, chances are that with a close enough look, my DNA can be found on you and your clothing. Probably even in your home a day or two later, just due to contamination. Moreover, IIRC the tests forensic scientists run also leaves open the possibility of blood relatives. The “one-in-umpteen-billion chance of this being an incorrect match” numbers they quote are the odds against a random match. But if John Accused happens to be the cousin of the real perpetrator, the odds of a coincidental positive go way, way up, likely into the whole percentage or tens of percent range.

    But those are only minor concerns. Overall, DNA analysis is a spectacularly good tool for ensuring real justice in the criminal justice system. Not only directly by helping to separate the guilty from the innocent, but indirectly by increasing the public’s opinion of the value of physical evidence over eyewitness testimony. If they believe the test over the testimony, that’s a good thing…so long as they understand what the test is telling them (and what it isn’t).

  25. 25
    blf

    Actually, the prosecutor was using a certain Hungarian-English Dictionary, and whilst it sounded like s/he was making arguments about weapons and residue and DNA and so on, s/he was really asking directions to the nearest brothel, wanted to know were to get some weed, was swearing at the judge, and inviting an attractive member of the jury to dinner.

  26. 26
    stuartsmith

    The correct response to “Were you there?” is “Yes.” Then if they try to argue that you weren’t, or couldn’t have been, ask “Were you there?”

    Stupid questions don’t deserve sensible responses.

  27. 27
    MyPetSlug

    So many possibilities.
    Creationist Lawyer (CL): Ladies and gentlemen of the jury, how do we even know the victim is even dead? Perhaps the victim is merely sleeping.or faking it?
    Prosecutor: Uh, a doctor declared him dead.
    CL: Oh, you mean an ATHEIST medical practitioner. But, Dr. Kirk Cameron disagrees. He thinks the victim is not dead at all!
    Prosecutor: But, he doesn’t even have a degree in-
    CL: And furthermore! More and more scientists are abandoning the idea that bullets can even cause death! This controversy needs to be taught, but evidence is being repressed by the “medical” community. Look at these ten books.
    Prosecutor: These aren’t even peer review medical journals, they’re just published by Christian pub-
    CL: All we ask is the jury to look at the evidence and decide for themselves.

  28. 28
    thalwen

    Loved it – as a defence attorney myself – that would be such brilliant trolling in court. Alas, I’m sure I’d get the judges disfavour to say the least.

  29. 29
    thalwen

    “Somewhat related to this topic, IIRC the US courts have really, actually ruled that praying to hurt someone, voodoo, etc. are not assaults because no reasonable person would think that it would work. So they’ve already staked themselves to an empirical view of causes.”
    This is actually an interesting issue. There are people who actually believe in voodoo actually experience psychogenically generated physical symptoms. There have been several instances where physicians had to enlist the aid of a shaman or witch doctor to handle patients like this. Though I see how it fails the reasonable person test – unless you can argue that it should be viewed from the perspective of a reasonable voodoo believer.

  30. 30
    freehand

    Should we ignore the most basic of egregious errors made by the courts? They have long ago bought into the corrupt epistemology of historical forensics, while rejecting the respectable and sacred observational forensics. The science world is right now in a turmoil over this issue. The weak and speculative nature of historical forensics is disgraceful, and while I am sure that many of its proponents are sincere, their reckless desire for the quick and easy path leads them into what is, at best, poorly related campfire spook stories. Rumors and innuendo have no place in a civilized society’s judicial system. Having naught but respect for our Muslim, Jewish, and Hindu fellow citizens, and utmost sympathy for our lost and bewildered atheist brethren, I will therefore make no mention that God favors the testimony of a good man over fantasies. How else would we know about the miracles of Jesus? Ladies and gentlemen, I submit that there are no witnesses, nothing but evidence of the sort that we might find in the flimsiest of movie plots. I rest my case, for my client is innocent, as you know in your heart of hearts, praise God!
    .
    Amen.

  31. 31
    Friendly

    When a creationist I was having an email conversation with made the argument that science about what isn’t observable isn’t really science, I responded:

    “So the people investigating a remote plane crash, which no living person observed, are not engaging in science? They can’t possibly arrive at a correct reconstruction of the accident based on the evidence at the crash site if they discount the possibility that God might have decided to smite one of the passengers? The people doing forensics in the CSI labs who investigate murder scenes which no one but the murderer witnessed (and the suspects aren’t talking) are not engaging in science? When they present their evidence and conclusions to the jury, the jury should just shrug in indecision because maybe the Devil made it look like the stab wounds were made by a person with a certain height and strength?”

    Unsurprisingly, he completely avoided replying to that

  32. 32
    fmitchell

    If you defended a priest or preacher with “The Devil did to torment my client”, some juror somewhere would find that credible.

    MyPetSlug said:

    More and more scientists are abandoning the idea that bullets can even cause death!

    Or, to quote the Night Vale NRA, “Guns don’t kill people. It’s impossible to be killed by a gun. We are all invincible to bullets, and that’s a miracle.”

    Also, “If you say guns kill people one more time, I will shoot you with a gun and you will (coincidentally) die.”

  33. 33
    had3

    DNA analysis doesn’t actually point to the defendant, what it supposedly does is eliminate everyone else (or as is frequently stated: only 1 in X billion have this combination…). There are several major issues with DNA analysis, including the truncating of where they stop the math (see the Michigan study as I recall), along with the very subjective call of what lines are “legitimate” as opposed to what lines are “shadows or echos.” Lastly, in my state, the defendant’s DNA is sent for comparison along with the evidence sample, instead of the evidence being independently tested first and then the defendant’s DNA tested. In other words, the lab already knows what it’s looking for. This does not mean the results are tainted or falsified, but it doesn’t give me warm fuzzies either.

  34. 34
    had3

    Another fun trick with odds when crossing a DNA expert is to ask them the odds of a number appearing on a die. They say 1 in 6. I can roll it 6 times and get a number to repeat before I get all 6 numbers to appear. When this happens, the analogy for the DNA match is the same (just because it happens 1 in 6 billion times doesn’t mean that 5 people don’t have it and the next 30 billion won’t). Because the numbers are so large, people often have difficulty processing it (which is why the die works as a good demonstration), to the benefit of the defendant.

  35. 35
    Raging Bee

    How do you know the universe wasn’t created 5 minutes ago by some being of unlimited power?

    We conclude this because all of the available evidence supports it (yes, including our memories); and there is ZERO evidence to contradict it. So even if we don’t accept this evidence as 100% reliable, it’s still the only evidence we have, so the “conventional wisdom” on this subject still stands.

  36. 36
    dingojack

    Judge: Mr Prosecutor would you like to open?
    Prosecutor: Thank-you your Honour. Gentlemen of the jury – GODDIDIT!! The Prosecution rests.
    Judge: Oh well then – no need to bother with any kind of defence, or to bother the jury for a verdict. Clearly the defendant is HEINOUSLY GUILTY and should be execmecuted to death until dead, and life is extinct! (Wouldn’t want to get God all angry, you wouldn’t like him when he’s angry. You just wait till he gets home and opens a can on whoop-ass on ya, Then you’ll be sorry. So there!)*

    @@

    Dingo
    ——–
    * Surely this must be pretty close to a verbatim report of some trial south of the Mason-Dixon Line

  37. 37
    Kevin Alexander

    This is supposedly an actual court transcript.
    .
    * Lawyer: “Doctor, before you performed the autopsy, did you check for a pulse?”
    * Witness: “No.”
    * Lawyer: “Did you check for blood pressure?”
    * Witness: “No.”
    * Lawyer: “Did you check for breathing?”
    * Witness: “No.”
    * Lawyer: “So, then it is possible that the patient was alive when you began the autopsy?”
    * Witness: “No.”
    * Lawyer: “How can you be so sure, Doctor?”
    * Witness: “Because his brain was sitting on my desk in a jar.”
    * Lawyer: “But could the patient have still been alive nevertheless?”
    * Witness: “Yes, it is possible that he could have been alive and practicing law somewhere.”

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