When I was in my preteens in Buckeye, AZ, during World War II, my brother and his good friend in ninth grade at the time, I do believe, decided they would go into business together. They set up targets and loaded their B-B guns with pellets. Two good loud voices brought in the first curious, possible customers. They had me, who could not hit the broad side of a barn from 20 feet, fire at the target. They announced I had hit the bull’s eye and had won some monetary prize, which was never awarded to me. But kids in the neighborhood began buying chances at hitting the target. Every now and again a kid was arbitrarily announced to be a winner. I think they charged a penny for each shot and gave six shots for a nickle. Back then a penny paid for several items a kid would be happy with, and it was not anything made cheaply of cheap plastic. As a comparison in the buying power of money, Pepsi-Cola’s singing commercial on the radio said a 12-ounce bottle was 12 full ounces for only a nickle or two.
Well, as kids not in our immediate neighborhood started to come, my brother’s friend called out joyfully to my brother: “Hey, Bennie, here come some more suckers!” One potential customer immediately wanted to know what a sucker was. Some fast talking salvaged a little business but not enough for the enterprise to survive into the morrow. Why this little story from my sinful youth? I urge you to approach every expert’s offerings– including the one on your payroll–with a skeptical query in your secret mind: “Am I being taken for a sucker?” And there is no better sucker bait than an invitation to believe in a nice, desirable, goody that will give us what we desperately need or make us more noble, winsome and winning than Sir Lancelot. Careful. Remember Lancelot blew it by letting the queen’s charms woo him, by buying the assumption that an ethereal romance could have the substance of solid integrity.
There are a number of basic guidelines for a cross-examiner in handling an opposing expert. Scholars who present on such things wax prophetic of the inevitable doom awaiting the wayward lawyer transgressing whatever the expert is expounding at the moment. There is one that is never addressed, maybe it is too camouflaged or too threatening of esoteric revelations. I am inviting you in where the wise seem too fearful to tread. How does one recognize, enquire about, and confront things taken for granted but essential to the devastating opinion the opposing expert is inflicting on your case? How does one avoid buying assumptions?
HOW IT WORKS ITS MALICE
My field of document examination, particularly in its foremost task of handwriting examination, has perfected the art of taking things for granted and selling assumptions to the unaware purchaser. As maybe the most violated and unacknowledged guideline for cross-examiners, it is all the more mischievous. A very common example from handwriting identification will illustrate the massive amounts of assumptions that can be swallowed whole in one gulp. Most handwriting experts give two “basic principles,” one of which is: “Everyone writes differently from every other writer.” When things go on from there without inquiry into this statement, the following are assumed to be true, whereas neither is. First, “There has been research or other scientific proof of this principle.” No such proof or research exists, though there is alleged research that is claimed to prove it. The person reading the research assumes the researcher knows what he is talking about. In fact, the published research can be searched in vain for unimpeachable evidence the author knows whereof he speaks, but the researcher does know how to hide the lack under mounds of intimidating statistical methods and equations. Historically this alleged “basic principle” is based on false statistical reasoning and other false assumptions about handwriting, besides being impossible to prove.
Second, “Both the writing in dispute and the defendant’s exemplar writing are uniquely identifiable.” That is precisely what the expert must be made to prove as a foundation. Of the writing in dispute one must demand of the expert: “Is this writing in and of itself an identifiable writing? If so, precisely what are the stable and significant traits in it that tie it to the one who wrote it and to no other?” Of the exemplars of the suspect whom the expert said wrote the disputed writing, one must ask: “What complex of characteristics which are significant for identification are to be found in all or most of the exemplar writings by the suspect so that any other writing by the suspect can be proved to be by such person and no other?
Fail to challenge the unstated or insinuated assumptions, and your case is dead.
How can we expose and defeat something the opposing expert only hinted at? Basic mastery of the syllogism is the skill needed. We translate key testimony into the bare bones syllogism underlying it. Do not fear the syllogism. It is a skill we each use multiple times a day every time we want either to persuade someone or to avoid being persuaded by another. Every claim ever made in a court of law rests on a syllogism, as does every attorney’s opening statement and closing argument at trial. There are only three parts to every argument, thus to every syllogism, so everyone can master it. It might take a bit of hard work, but then what worthwhile thing does not?
First, there is the outcome we want to discover, which is called “the conclusion.” Second, there are some facts, derived from reality and exposing trickery. The technical name for this statement of facts is “the minor premise.” Third, the facts used need to be interpreted by some theory or principle, preferably something scientific. This is technically called “the major premise” and a false major premise is what is most often taken for granted, most often the assumption that the buyer has been sold, sight unseen, truth untested, never clearly stated.
If the major and minor premises are for sure, the conclusion is for sure. There are a lot of fine points to a syllogism, but now we only need make the premises explicit and ask what makes them true. If either premise falls, the conclusion falls, and the witness falls, and the opposing case falls.
Suppose the opposing expert said this: “The differences between the forged signature and your client’s writing are within his normal range of variation.” Your steel trap mind immediately translates that into this:
a) Fact asserted by the witness, the minor premise: My client’s sample writings include all these differences.
b) Theory asserted by this witness, the major premise: There is a norm against which all the differences were assessed, and there is a standard stating what the range of variation should be.
c) Conclusion, what this witness swears is true: My client wrote the forgery.
What has the witness really said and what does it require of him? The word “normal” means something covered by and established by a norm. The witness must be made to state what that norm is, how it has been scientifically established, and how it is to be determined for any specific writer. I have yet to know of a case where the assertion of a writer’s “normal variation” was ever accompanied by such a showing. Everyone just goes numb and swallows the evidential gruel the witness is spooning into open and unquestioning gapes. I have indexed more than 5,000 journal articles in my discipline, evaluated far more than 3,000 from other disciplines, and reviewed 6,000 plus reported court cases along with hundreds of books. Never once has this issue been researched or written about beyond repeating the mantra “within the writer’s normal range of variation,” or properly enquired into during cross-examination.
The “normal range of variation” is given two variations of its own, “natural range of variations” and “expected range of variation.” The same line of cross-examining will expose the emptiness of both the “nature” and the “expectation.” For example, “What physical evidence can you show us that your expectation is based on? What scientific research has validated your expectations about this writer?” And other such sensible enquiries to expose the senselessness of the assertion.
But always demand that alleged physical realities be physically demonstrated!