Law vs. science

By Michael G. Brock 
Recently, one of my clients told a hearing officer at the Secretary of State that he had a medical marijuana card. He offered this information as justification for the positive THC result on his drug screen. (I don’t know whether he had obtained a DI4P, as instructed.) The hearing officer told him that he should seek another opinion regarding the use of medical marijuana and denied him his license.  
On the surface, this would seem to be a clear abuse of discretion. The hearing officer has no qualifications that would allow her to question the medical judgment of an MD, and if she did, she is not acting in a role where it would be proper to give such an opinion.

On the other hand, she probably takes the view that medical marijuana is, for the most part, a ruse for persons who already have a marijuana habit to use the drug legally. If that is her position, I would have to say that, with few exceptions, she is probably correct. Nobody connected with treatment or driver license restoration is overjoyed at the prospect of seeing someone who has a history of dependence on one substance using another substance, or the same substance that they previously abused.

Moreover, the use and abuse of substances has become very murky territory as of late. We have an electorate that mostly seems to think marijuana should be legal, but a government that continues to want to protect us from ourselves. It seems odd that the same people who think gambling is moral when sanctioned by the government for its purposes does not see recreational marijuana in the same light.  After all, doctors can and do prescribe opiates for patients with impunity, even though those legal narcotics kill more people every year than heroin and cocaine combined.  And if given a choice between having my clients smoke weed or take opiates, I’d rather have them smoking.  

That having been said, it is also true that an addict who is simply substituting one drug for another is not truly in recovery, and there is little reason to be confident that they will not return to abusing their drug of choice as soon as the lack of immediate consequences make that seem like a safe option. So, why should a hearing officer giving medical advice to one of my clients regarding marijuana use cause me any concern?  

The biggest reason for my concern has nothing to do with attorneys and/or judges rendering opinions about what constitutes appropriate use of medication. If such a case were appealed, it would most likely be overturned, and, therefore, not likely to lead to a rash of attorneys substituting their judgment for those of health care professionals. But this is an extreme example of something that goes on every day in courtrooms throughout the country — the problem of attorneys, judges and juries rendering opinions about scientific evidence that they have insufficient education and/or training to make.

A good example of this kind of evidence is forensic interviewing.  All of the forensic research says that the earliest forensic interviews of children suspected of being abused are the most reliable, and then only when they are conducted in accordance with proper standards. These standards include creating a child friendly environment, establishing a rapport with the child, and allowing the child to provide a practice narrative as a precursor to providing a narrative of the alleged abuse events.  

The center piece of the forensic interview is the child’s free narrative. Therefore, if there is no free narrative, there is no evidence according to all the scientific research and protocols that have been developed in order to establish what constitutes valid science.

Yet, I have been involved in cases recently where allegations were coerced from a child through leading questions that presumed an affirmative answer had already been given to a direct question; another in which a five year old child told the interviewer he was ten, and that he remembered abuse from when he was six, seven, eight and nine; and another in which a child was allowed to go back on the record after conferring with her grandmother (who was seeking custody) and remember abuse that she had forgotten to report during a lengthy forensic interview.

These interviews not only failed to find any evidence of abuse, they would indicate to any objective scientist familiar with the forensic interviewing process that there is a low probability abuse occurred. So why were these findings sufficient evidence for these cases to be brought to trial, and in two cases, to result in findings against the accused?

There are several answers.  First and most importantly, the decision was not made by a scientist, it was made by a prosecutor; a lawyer. And the case was allowed to go to trial by a judge; a lawyer. The concerns of lawyers are very different than those of scientists. The scientist is devoted to finding the truth. That may be arguable if he is retained by one side or the other in a legal dispute, or retained by a think tank to put a particular spin on global warming, but unless he has an agenda, his pursuit is truth. Deborah Poole, for example, has no reason to create a protocol that would favor prosecutors or defense counsel. I don’t think that anyone would argue that her goal is not to find the truth.

A lawyer’s concern, on the other hand is, “Can I make the case?” In the above cases, two out of three times the answer was, “Yes.” But is it a good idea for bad science to be grounds for bringing a case to trial, and, ultimately, to determine the outcome of that case and the fate of the accused?  

From the scientist’s perspective, it clearly isn’t, but lawyers may disagree. In Herrera v. Collins (1993), Chief Justice Rehnquist stated in effect that there needed to be finality in legal decisions, and that proof of innocence was not necessarily a reason not to execute someone who was convicted through due process of law.  After all, the prosecution won the case fair and square.  

There is a certain logic to the position that adhering to due process may not be perfect, but will produce the best possible result in the most cases. It is a logic that says legal truth cannot be knowable in an absolute sense.  The best that we can hope for is the informed opinion of a trier of fact based on evidence.

But there are two problems with this argument. First, most people would agree that many scientific facts are not in dispute.  DNA evidence is pretty conclusive. There might be argument about how it got there, but the results of a valid scientific test should be repeatable. Therefore, good science may provide us with facts that are 99% knowable.  

The second is that lawyers, judges and jurors are not good judges of what constitutes valid science. But since they are the ones who ultimately decide what constitutes good science, they may, because of their own prejudice or predisposition admit bad science and exclude good science as a basis for legal decisions.

What is worse is that the scientific basis for bringing the case to trial is often not even heard by the judge or the jury. In one of the above cited cases the judge elected not to hear any arguments about the forensic evidence, and in another, the expert did not choose, or was not allowed to play a videotape of the forensic interview. The cases were ultimately decided by the child’s testimony. These decisions speak to a political predisposition to convict, rather than a search for truth based on a presumption of innocence.

Any discussion between the child and a prosecutor, or any other person who has an interest in the case may, deliberately or inadvertently, involve a certain amount of coaching. Given that such discussions are inevitable, the circumstances of the child’s first recorded disclosure on the record are actually more crucial to understanding the truth than what they say on the stand.  

The decision to suppress this evidence rather than to ascertain its forensic validity is, ultimately, a deliberate suppression of scientific truth if favor of clever legal argument. This keeps power in the hands of legal professionals that rightfully belongs to science, and the cost to all is a more arbitrary system of justice, and a less just society.


Michael G. Brock, MA, LLP, LMSW, is a forensic mental health professional in private practice at Counseling and Evaluation Services in Wyandotte, Michigan. He has worked in the mental health field since 1974, and has been in full-time private practice since 1985. The majority of his practice in recent years relates to driver license restoration and substance abuse evaluation. He may be contacted at Michael G. Brock, Counseling and Evaluation Services, 2514 Biddle, Wyandotte, 48192; 313-802-0863, fax/phone 734-692-1082; e-mail, michaelgbrock@; website,