La Ciencia tuvo, tiene y tendrá gran relevancia para el Proceso. Es más, sus vínculos se multiplican rápidamente y hasta se podría decir que aumentan día a día. Entiendo que cada vez más la Ciencia incide -a través de la denominada prueba científica- en la dilucidación de distintos asuntos -penales o no- en los que se pretende la obtención de tutela jurisdiccional. La introducción del conocimiento científico al Proceso, así como el correcto uso que se haga del mismo, contribuye a la efectividad de dicha tutela.
Refiriéndose a la prueba científica indica TARUFFO que: “En términos generales, con tal expresión se designan los supuestos en que el conocimiento científico es usado en el proceso para aportar el conocimiento o la demostración de un hecho o –mejor dicho- la prueba de la verdad de un enunciado fáctico.” (cfe., Michele Taruffo: La prueba, Madrid: Marcial Pons, 2008, pág. 277).
Es por esa razón que, en aquellas cuestiones que se caracterizan por la necesidad de acudir a otros saberes, como pueden ser aquellos relacionados con la matemática, la Física, la Química, la Bioquímica, la Biología, la Genética, la Ingeniería, la Medicina, etc., la complejidad que tienen los hechos a probar exige que se diligencien medios probatorios que de forma apropiada permitan la producción de prueba de tipo científico o, eventualmente, técnico en el Proceso.
La siguiente es una muy interesante entrevista realizada al Prof. Alan Dershowitz, de Harvard Law School, publicada por The Economist el 28 de enero de 2013, en la cual se trata el tema del uso de la Ciencia en el proceso penal estadounidense. En particular, se analiza el tema de la utilización del conocimiento científico por parte de los abogados en la construcción y argumentación de los casos.
ALAN MORTON DERSHOWITZ is an American lawyer, jurist and political commentator. He has held the Felix Frankfurter professorship at Harvard Law School since 1993. Dershowitz is known for his involvement in high-profile legal cases and as a commentator on the Arab–Israeli conflict. His most notable cases include his role in 1984 in overturning the conviction of Claus von Bülow for the attempted murder of his wife, Sunny, and as the appellate adviser for the defence in the O.J. Simpson trial in 1995.
He is the author of a number of books about politics and law, including “Reversal of Fortune: Inside the von Bülow Case” (1985); “Reasonable Doubts: The Criminal Justice System and the O.J. Simpson Case” (1996); and the best-selling “The Case for Israel”(2003). Mr Dershowitz’s autobiography “Taking the Stand” will be published later this year.
What don’t we know about criminal law?
What people don’t know is that I win cases by using science. We read about Sherlock Holmes solving cases through primitive science 150 years ago—induction, deduction, simple scientific observations—but today criminal lawyers like me win cases by deep immersion in DNA, biochemistry and other forms of science. The prosecution uses science as a sword and we use it as a shield.
Can you give me an example?
I’d had 36 cases in my career involving death and I’ve won more than 30 of them, the vast majority I won using science. One of them was the Claus von Bülow case, in which von Bülow was initially convicted. They found insulin in the body of his comatose wife, they found insulin on the needle found in a case that belonged to him. We were able to prove that the insulin reading in her body was false and that the insulin on the needle was a false positive that we could replicate with saline.
I thought juries didn’t understand the scientific detail, so it’s just a question of how well you argue it.
You have to be able to turn technical scientific material into common sense. They found insulin on the tip of the needle. We were able to show to the jury, using a large turkey baster, that if you have incrustation at the tip of the needle it proves that the needle never entered the human body.
So, what happened to her then?
It was self-induced. She had taken a large amount of barbiturates, she had reactive hypoglycaemia and she’d consumed large amounts of sugar products.
Is that what he always claimed?
He said he didn’t know. He’s not a scientist and his position was simply that he didn’t do it.
Suggested Reading: “Reversal of Fortune: Inside the von Bülow Case” by Alan Dershowitz (1985)
What about OJ? He looked so guilty.
People just don’t realise that we got him off because the police manufactured a piece of evidence. They took a sock they’d found in his hamper and a police officer poured drops of blood from the victim and from OJ Simpson onto the sock. Firstly, the blood on the sock and only the blood on the sock contained EDTA, an anti-coagulant that’s not found in the human body. It is put in test-tubes in order to prevent blood from coagulating. Secondly, if you take a sock and sprinkle blood on it, then when it lies flat the blood will soak and imprint right through. We were able to show that on the sock in the case there were perfect mirror images that could not have occurred when it was being worn by a human being.
There was other evidence that was very compelling, but once the jury believed that one piece of evidence had been planted by the prosecution they simply didn’t believe the rest of the case. If you find a cockroach in your bowl of pasta you don’t look for other cockroaches, you throw out the whole bowl.
Do you believe he was innocent?
I can’t comment on that and that is not the basis on which I take cases.
Suggested Reading: “Reasonable Doubts: The Criminal Justice System and the O.J. Simpson Case” by Alan Dershowitz (1996)
Is the evidence always as clear and dramatic as that?
There was a man named Binyon who owned the most famous casino in Las Vegas. He fell in lust with an exotic dancer named Sandy. Unbeknownst to him, Sandy had a young handsome boyfriend and one day Binyon was found dead. The police indicted Sandy and her boyfriend because they decided that they’d ‘Burked’ him. Burke and Hare were 19th-century Scottish killers who killed their victims by compressing the chest and preventing breathing, leaving no traces. The evidence was that they found a button mark on the skin of the deceased person which seemed to replicate the button he was wearing at the time. When I got into the case on appeal I got the post mortem photographs, had them blown up and brought them to the world’s leading expert on dermatological marks of this kind. He was able to do an analysis of the blood flow through the mark and determined that it was not caused by pressure but was a non-malignant tumour that had been on the man’s body for years. As a result of that we won the case. I tell my students that you really have to become scientists.
Remember that we don’t have to prove the client innocent. We just have to prove reasonable doubt, and science is an extraordinarily effective tool for raising reasonable doubt.
Surely once all the evidence is there, equally compelling on both sides, it’s the force of the lawyer’s argument that swings it?
No. I win cases based on the fact that I just know more about the science than the other side does. In-court performance of lawyers is greatly exaggerated—movies and TV shows are based on that. In the 21st century articulate advocacy in the courtroom is not nearly as powerful as the knowledge of and use of science.
I have another tactic I use. I never try to persuade a jury to believe me. I never say, ‘This should lead you to conclude that my client is innocent.’ I give them the evidence. I want them, the jury and judge, to have the ah-ha moment. If it’s their argument they’re going to stick with it.
You must get frustrated when you see people executed when you feel you could have got them off.
When you see lawyers who don’t know how to use science it’s frustrating. They still think they can do the Perry Mason thing. In 50 years at Harvard my main lesson is that you must use science. I was brought here to be the ‘and’ teacher. Law and psychiatry. Law and medicine. Law and genetics. Law is an empty vessel into which you have to pour other disciplines. I taught a course on law and mathematics.
How does that work?
In almost all cases I introduce some quantification, the likelihood of error. Let’s say there’s a terrible accident in which a bus doing 100mph mows down a bunch of people on Harvard Square. All we know is that the bus is blue. We know that 90% of the buses in the area are owned by John Smith. If you have a 10% likelihood of innocence, can you convict Smith?
No.
You don’t want to have ten out of every hundred people in jail falsely convicted.
And yet, you do.
No. It’s more like two or three in a hundred. But that’s too many. If we have a million people in jail then 30,000 are falsely imprisoned. Our job is to make sure that doesn’t happen.
Suggested Reading: “Preemption: A Knife That Cuts Both Ways” by Alan Dershowitz (2007)
Fuente: The Economist
