I have a particular interest in the rhetoric expert witnesses employ in the witness box, especially scientific experts. On Thursday and Friday, Trooper Robert Higbee’s defense presented two expert witnesses, both of whom I feel are models of effective jury presentations. Both presented extensive credentials in what might be called “a dramatic” manner (as opposed to a dry C.V.). Both chose vivid and relevant examples to illustrate their key points. Both spoke directly to the jury, without appearing to “dumb things down.”

On Thursday, Dr. Geoffrey Loftus of the University of Washington explained human cognitive processes and perception. Overlooking a gratuitous swipe at bloggers versus journalists, I admired everything about his testimony.

• Sidebar: In defense of bloggers, and in contrast to journalists, on Friday the only apparent journalistic coverage of the Higbee trial was CNN/TruTV’s Jean Casarez, who had about two minutes of air time. TruTV switched from coverage of the Higbee trial to the more sensational “Fake Rockefeller” trial. IMHO, this is a sad aspect of news coverage these days: the Higbee defense is thus deprived of its day in the spotlight. Many in the public may be left with the prosecution’s view of the evidence, as a result.

Then on Friday, Retired State Police Lt. Col Frank Rodgers testified about NJ State Trooper training, policies, procedures, and traffic laws. For more, see www.pressofatlanticcity.com.

Dr. Loftus made clear the complexities of the way the human mind processes the sorts of information with which a night-time driver, such as Trooper Higbee, is confronted. He also explained convincingly how it is possible that Trooper Higbee misremembered the events of the night.

Mr. Rodgers proved—at least to my satisfaction—that Trooper Higbee was one of the best-trained and best-qualified troopers on the road at the time of the accident, with no motivation to have become reckless at the moment. He also convinced me that all the evidence (except possibly the faulty memories of eye-witnesses) shows that Trooper Higbee was following Standard Operating Procedure in all respects, including his “observation” of a “stop-ahead” warning sign and his elevated speed, which Rodgers labeled “five miles above the speed” at which Higbee had clocked the speeder.

Defense Take-aways

Loftus:

Trooper Higbee likely did not lie intentionally when he stated in a sworn deposition that to the best of his recollection he stopped at the stop sign.

When cross-examined about this, Loftus noted that Higbee had no motivation to lie. To me, this is key: a state trooper would know that the investigation would turn up contrary evidence if he lied; hence, a state trooper is the least likely person to compound his legal problems by perjuring himself.

Trooper Higbee likely did not remember much about the accident accurately. Like any human being under those circumstances, he may have had a brief episode of amnesia and then incorrectly reconstructed the accident through inferences about himself as a safe driver.

In the dark of night, because a distant stop sign happened to be a larger size than the relevant stop sign at the intersection, and because the distant stop sign was in Higbee’s central field of vision while the closer stop sign was first obscured from his line of sight and then popped into his peripheral vision too late for the speed he was traveling, Trooper Higbee reflexively mistook the distant stop sign for the stop to which the “stop-ahead” warning sign referred. This is the most likely reason that a sane, trained state trooper would not slow down in order to stop at an intersection: he thought the intersection was further ahead than it actually was.

Higbee was likely distracted from seeing the stop sign at the last minute by the sudden appearance of headlights to his right.

Rodgers:

Trooper Higbee was acting responsibly throughout the incident: he properly clocked the speeder, he properly sped up to slightly faster than the clocked speed and maintained that speed while attempting to close the gap, he observed the warning sign and began to tap the brake, he identified the stop sign he thought to be controlled by the warning sign, he kept his focus on the speeder ahead—and relied on his peripheral vision to observe traffic signs to his right.

Rodgers also pointed out the skew the prosecutor put on Higbee’s sworn statement. For example, he noted that the prosecutor read only a portion of Higbee’s assertion that he stopped at the sign. In context, it is clear that Higbee was uncertain but was convinced he would have stopped at any such sign. Rodgers also pointed out the number of times Higbee told first responders and other officials that “I don’t know what happened.”

Rodgers reiterated Loftus’s reasoning that Higbee would have had no motive to lie, because all troopers know how accident reconstructions work.

Rodgers repeatedly pointed out that state troopers are trained to protect themselves, as well as the public. If Higbee had perceived an intersection ahead at which cross-traffic had the right of way (even potentially through a yield sign) then he would certainly have wanted to slow at least to a slow, rolling stop in order to protect himself.

The Thin Blue Line

Throughout the trial there’s been an undercurrent of “the thin blue line” protecting its own—at least in the prosecution case. The prosecution’s first witness was the grandfather of the two girls who died. He seemed to imply that troopers on the scene that night lied to him. The defense objected that the testimony was prejudicial, and the judge overruled the objection.

Troopers who were required to testify for the prosecution made it clear through facial expressions, tone of voice, and body language that they were very unhappy. At every opportunity, their choice of words indicated their support for Trooper Higbee.

The defense side of the gallery is packed daily with law enforcement.

Mr. Rodgers provided an interesting counterbalance to the public perception that cops will lie for each other. His credentials included substantial experience in investigation of police corruption.

The Judge’s Kibosh

Unfortunately, once again the judge in the trial tried to soften both experts’ blows against the prosecution case.

Dr. Loftus prepared a PowerPoint presentation and a graph to illustrate his conclusions. The judge ultimately ruled that neither would be made available to the jury in the deliberation room.

Even as I write this, I can literally feel my blood-pressure skyrocket. The jury both needs and deserves these exhibits. Why?

1) Dr. Loftus presented extremely sophisticated scientific information, which no one in the courtroom could possibly have absorbed.

2) Dr. Loftus’s diagrams incorporated information that the prosecution had already presented, but with the addition of the defense perspective—and he was a defense witness, not a prosecution witness; by forcing the jury to rely on prosecution diagrams, the judge in effect suppressed Dr. Loftus’s interpretation of the facts.

3) The judge suppressed one graph on the grounds that it was “cumulative” rather than “probative” because it simply repeated the prosecution’s data. In fact, I heard Dr. Loftus say he had personally developed the graph from the same data that the prosecution’s expert developed his graph. That is entirely different.

4) The prosecution’s graph had misleading and inaccurate labels on it, which the judge allowed but told the jury to disregard. On the other uneven hand, the judge asked the defense to redact many of the labels in Dr. Loftus’s PowerPoint presentation.

As for Mr. Rodgers’ testimony, during the prosecution’s cross-examination the judge repeatedly forced him to respond “yes” or “no” to questions for which he did not wish to give a definitive answer. The judge at other times told other witnesses, especially prosecution witnesses, that they should respond with one-word answers but that they would be given an opportunity to respond more fully afterwards. Mr. Rodgers did not have such opportunities.

Memory is a Construct

Dr. Loftus’s critique of the accuracy of bloggers is well-taken by this blogger. I’m not a reporter. I don’t sit glued to the screen while the trial is on. I don’t see all the testimony or everything that goes on in the courtroom. I could be in error about everything I’ve said here.

Dr. Loftus made it very clear that memory is entirely subjective.

But I think the judge in this trial should heed that warning, too. He seems to be taking copious notes throughout the testimony: my own experience trying to take notes in the jury box taught me that note-taking is often counterproductive and causes one to miss some of the testimony. In addition, he relies on his memory and his notes to make rulings without reference to the court-reporter’s transcript.

So, while I might not be accurate in my recall of the testimony, and I know I’ve made errors in earlier posts, I’m not so sure my memories are worse than the judge’s, because at least I’m not looking at this trial through eyes of the prosecutor. I’m trying to look at it through the eyes of a juror.