Expert Witness

I recently had the opportunity to serve as an expert witness in a criminal case and it was a VERY interesting experience! I was able to share some of my expertise with the attorney who retained me, but the best part for me was that I learned a little more about the history and philosophy behind common law and got a feel for the judicial process. I won't give too many details of the case in a publicly available blog, but I'll share some high level points here for anyone who might be interested.

The defendant was being charged with a crime based on a specific statute. His attorney thought the statute could be challenged and asked me to help him look at the law, define some terms, explain some technical details of how certain systems work, and help him develop a case to challenge the law. In doing this, I came to learn a little more about the litmus test that a law must pass for a court of law to uphold the law. The attorney I worked with seemed to enjoy explaining the details, which was great because I had lots of questions.

The most important thing I took away from that discussion was the need for the law to clearly and consistently define what is legal and what is not. If the statute is easily misinterpreted, it can be struck down because it can be seen as reaching too far or trampling on constitutional rights. The value of common law, or law based on judicial precedent, seems to be a certain consistency throughout the laws over time.

Apparently, the history of common law is quite extensive. He gave me a notional example of a law against breaking and entering that may have had terms in the law challenged and defined by courts back in the 12th century. This was notional; I have no idea how I would trace the history of a law against breaking and entering. But the example he gave was a law against breaking and entering after dark with the intent to steal ... and then someone charged with a violation of the law questioning whether "dark" applied to sunset. And maybe that guy was acquitted, but in acquitting him, the court would be taking a step in defining what that term means in the law so it's more clear the next time the law is used in court.

I'm a total novice when it comes to law, so take what I've said above with a grain of salt. I looked into going to law school many years ago with the idea that I could become a patent attorney. I could make a heck of a lot more money that way, but it didn't take me long to realize I wouldn't enjoy that field. I'd rather be happy than rich.

But lately, philosophy of law has been more interesting to me. I still don't think I would enjoy practicing law, but I'm interested in proper methods of governance. I'm interested in the healthy tension between order and freedom. I'm interested in finding the sweet spot in a system of law that discourages behaviors in individuals that trample on others' freedoms without taking away too much individual freedom by force of law. As an engineer, I solve a lot of optimization problems and seeking to maximize freedom in a system of law seems like an optimization problem to me. It just doesn't seem like one I'm really capable of completely solving because of the complexity of human nature. But even if I can't find a 'best' solution, maybe I can find some principles that govern what makes a really good solution.

I'm also interested in optimizing success in commercial organizations. I've been thinking a lot about corporate governance lately and trying to figure out what kind of organizational and incentive structures would maximize the probability of success in a place of business. The answer to that organizational design question will depend on the nature of the business, the collective values of the employees, the values of the customers, etc. But the first thing to do in this problem is define what we mean by success. That's a philosophical question that must be answered before any kind of organizational engineering takes place. For me, 'freedom' is about the closest definition of success I can think of for a legal system, but for other organizations, while freedom is probably an essential element of success, it probably isn't sufficient unto itself.

When I have the answers to all these questions, I'll let you know. :) I don't expect to completely solve those problems before I die, but that's what makes them so interesting to me.

In the case I described above, the defendant was offered a pretty nice plea bargain deal at the last minute, so the case never went to trial. In a way, it was satisfying to have helped create a case that rattled the confidence of the prosecution enough that they offered a plea bargain, but it was also a bit disappointing, after having geared up for a fight, to be let down like that. If I were in the defendant's position, I would have done the same thing, but it was frustrating that he had to accept any kind of sentence. In my mind, he really didn't do anything wrong. Of course, I've learned that law and justice aren't necessarily the same thing, but it's still disappointing to see something like that.

So we didn't get to really challenge the law, which is a shame because I think the law, which had good intention, really should be struck down and rewritten. But this man finally has some resolution on this issue and I think he got a pretty good deal. So I'm happy for him.