Forensic Insights: Legal Testimony and Causation Science

Dive into the world of forensic analysis with Dr. Michael Freeman, a leading expert in forensic epidemiology. This episode explores the evolution of legal testimony, emphasizing evidence-based forensics over opinion. Dr. Freeman guides us through the meticulous processes ensuring consistency and reproducibility in expert testimonies. Uncover the secrets behind constructing airtight causation arguments, illustrated through the Derek Chauvin trial. Dr. Freeman exposes common fallacies and biases, emphasizing the crucial role of empirical evidence in the intersection of science, law, and medicine. Discover the intricate connection between probabilistic thinking, legal concepts, and the vital role of forensic epidemiology in the pursuit of social justice.

Learn more at https://braininjuryresearchsolutions.com/ or email us directly at info@braininjuryresearchsolutions.com

The information provided on the Brain Injury Research Solutions podcast is for
general informational and educational purposes only and is not medical, legal, or
other professional advice. You should not rely on the information provided in the
Brain Injury Research Solutions podcast as a substitute for professional medical
advice, diagnosis, or treatment from a licensed healthcare provider who is
familiar with your individual situation or as a substitute for legal advice from an
attorney.

Transcript

Introducer Host                                                                                                                                                  
00:02
Welcome to the Brain Injury Forensics Podcast presented by Brain Injury Research Solutions, a forensic services and contract research organization. Join Dr.'s Richard Batson and Joshua Goldenberg as they interview nationally and internationally renowned experts and dive into the latest developments in brain injury forensics, applied medical research, state-of-the-art forensic methodologies, gold standard advanced neuroimaging and numerous brain injury related medical topics. 

Dr. Goldenberg Co-host                                                                                                                                
00:37
This is just a reminder before we start that while we are doctors and have advanced training in forensic medical science and forensic epidemiology, and we will be discussing topics that involve medicine and the law, the information in this podcast is not medical, legal or other professional advice, and this podcast is provided for informational and educational purposes only. You should not rely on anything you hear as a substitute for medical care by a physician or other qualified medical professional or legal advice from a licensed attorney. Always consult with your physician or other qualified medical professional for medical advice and an attorney for legal advice. 

Hello everyone and welcome to the podcast. We are here today with Dr. Michael Freeman, who is sort of a big deal. If you haven't heard, he literally wrote the book on forensic epidemiology. If you recall from our last conversation on the pod, we are working our way through the credit approach, where C stands for causation, which is really the, I think, one of the crux, so the crux element of what we're talking about here, with what we're trying to approach. We thought we would invite Dr. Freeman on board to talk about that. He has sort of pioneered a lot of the I don't know what would we say like systematic or evidence-based causation approaches in forensics. So welcome to the podcast, dr Freeman. 

Dr. Freeman Guest                                                                                                                                            
02:03
Thanks very much. I appreciate you having me. 

Dr. Goldenberg Co-host                                                                                                                                
02:05
All right, Dr. Freeman, I would love to talk to you about a lot of things in relation to causation, but first of all, would you mind telling the audience a little bit about your background, just to give them a sense of where you're coming from. And then, when you're done, I would love to jump in with this phrase, evidence-based forensics, which I think I first heard from you and your work, and now I think that's what really got me excited about this whole field actually. So tell us a little bit about yourself, if you will, and then maybe we can jump in with that. 

Dr. Freeman Guest                                                                                                                                            
02:38
Sure. So, without getting into a great deal of boring detail, I'm a forensic medical doctor. I have a background in medicine, I have a background in epidemiology and also in forensic medicine specifically, so I'm cross-training a variety of disciplines but I spend most of my time working in the field of forensic analysis of causation and I work both criminal and civil cases in the United States and outside the United States and I would say primarily my area of focus has been and interest has been in the use and application of epidemiologic or population-based concepts and data to providing analysis in forensic settings of certain questions that arise, because so many questions in that arise in forensic settings, particularly of causation, involve questions of probability what's most likely, what's reasonably true beyond a reasonable doubt, even if you're talking about criminal cases. Yet we don't actually typically have practitioners who are giving testimony on a regular basis, who ordinarily quantify their testimony or quantify their opinions using probabilities. And it's a little bit of a hypocritical position that courts often, and actually almost entirely, require experts to testify as to what is more probably true than not, what's true as a reasonable degree of medical certainty or reasonable degree of probability in whatever field they're talking about. And yet we never really require them to say well, why do you actually believe something to be true more than 50% of the time, as they apply to the facts in this case. And so when you talk about evidence-based practice in forensic medicine, my interest is in actually having evidence, some quantifiable way of being able to say yes, I actually can say something is more likely true than not and I can give you evidence of that and I can show you how I did it. And anybody else should be able to do the same thing I did and come up with the same conclusion. 

And so in forensic medicine we talk a lot about the difference between evidence-based practice, which we know from medicine or different clinical disciplines, where what you do for a patient is based not just because you're doing it for this patient, but because we also have evidence it's worked on other patients. We have epidemiologic studies that say, when you give drug A versus drug B, you get better results. That's evidence-based practice. But in forensic medicine we often talk about eminence-based practice, which is to say that I will talk about all of my years of practice and all the autopsies I've done and all of the things that I've seen and how experienced I am, and look at my nice suit and my well-tied necktie and my fancy haircut, my thick CV and basically use my eminence to sell an opinion that may be completely invalid and of course, you know, in, for example, civil cases, there's always going to be an expert on the other side who's going to have the opposite opinion. 

Dr. Goldenberg Co-host                                                                                                                               
 06:24
Yeah, so this is. This is something we you know, david and I chat about a lot, which is it seems a lot to me that this is like evidence-based medicine was in like the 70s or 80s, like before EBM came on the scene in the 90s, where you would just have these really high falutin doctors show up like hair doctor, professor, style, right, this eminence-based approach and just like pontificate about how you should do the surgery or how you should handle the patient or whether you should use this or not, and then we have this whole world of evidence-based medicine emerged to counter. I've never heard of called eminence-based testimony or eminence-based medicine, but that's basically what it was. You just had these sort of very flashy credentials or appeal in one way or another. And so to me tell me if I'm wrong about this, and maybe it's an unfair analogy, but to me it always felt like man is law, just like 50 years behind the times of where medicine is. 

Dr. Freeman Guest                                                                                                                                            
07:22
So law somewhat attempts, in the use of at least medical experts and causation experts, to mimic what medicine does. Someone shows up and they say I'm a professor and I'm the chair of this department. I've done this for many, many years, or I'm the chief medical examiner of such and such a county and I've done 5,000 autopsies over the years. Then the same thing that would sort of sell you as an expert in a medical setting, as a lecturer or as a writer to some degree, would also sell you as an expert in a legal setting, the difference being that most courts don't actually require that you be the world's greatest expert on something. Most courts require that you have more expertise than the average juror would have. So for someone to talk about a particular topic, the threshold is not particularly high. 

Dr. Goldenberg Co-host                                                                                                                               
 08:20
That's interesting. 

Dr. Freeman Guest                                                                                                                                            
08:21
Particularly in a number of different venues, like in Colorado. You just have to have more information than the average juror. That's the actual instruction. 

Dr. Goldenberg Co-host                                                                                                                                
08:31
That's how they define expert. The judges are okay with them bringing experts based on that threshold. 

Dr. Freeman Guest                                                                                                                                            
08:38
Yes, that's correct. Now it gets a little dicey when you talk about an expert, for example in a medical malpractice case, and you say, well, that orthopedic surgeon fell below the standard of care by failing to actually clamp that artery that was spilling blood into the operative wound. That's a little bit different, because that does require someone from orthopedic surgery to say no, they fell below the standard of care. It can't be a family practice doc or a hospitalist or in many cases even a neurosurgeon who may do the same surgery. It requires someone from the same discipline because your expertise in those cases are what would a reasonably prudent individual from the same discipline do in the same situation? But for the most part, if you're just giving a general opinion on causation, the standard for what it takes to be an expert in that is surprisingly thin. 

Dr. Goldenberg Co-host                                                                                                                                
09:38
Yeah, I think that's so. I'm coming to this with relatively new eyes. That's something that Davis and I have been working through for a while now is, if these thresholds are so low, how do we promote really excellent expert testimony? I think your approach is probably most recently the inference approach, which and I might be butchering this and just please correct me if I'm wrong but it's sort of like the three step causation with math at the end if appropriate, and maybe we talked about like when that's appropriate. But that is an attempt to kind of is, would you say, that's an attempt to standardize or to systematize or to at least be reproducible in how experts go about getting to these decisions and maybe tell us a little bit the listeners, a little bit about what these processes are. 

Dr. Freeman Guest                                                                                                                                            
10:30
Sure Well, I think, from the hundred foot level, what you're really trying to get at when you're asking for repeatable results in a causation analysis is you're starting with what the definition of what a cause actually is. 

Dr. Goldenberg Co-host                                                                                                                                
10:47
Okay. 

Dr. Freeman Guest                                                                                                                                            
10:48
And most people couldn't define that because it's not readily definable. Well, it's a thing that makes something else happen. Okay, but there are lots of things that make other things happen. If you're talking about an individual, you know there's. I mean, that doesn't really answer much of a question. I mean, what? What makes somebody hurt? Well, a lot of different things. I mean, that doesn't help you understand whether somebody was specifically injured in secondary to an event, to a car crash, or to a fall, or or to some an assault, or so the approach that is Fully embraced by the inference approach, what you're talking about, which is an acronym and I can't even remember what the acronym is, but it was by my, my very brilliant PhD student, who was in Indonesian Forensic medical doctor and putry Malia Mela I, a we worked together on on the this research for a number of years, but and again, I can't remember what exactly the inference, the acronym stands for but but the idea behind it is that you were applying counter factual Reasoning to a causation question which actually does go to the correct definition of what it causes, which is it is the thing without which the outcome would not have occurred.  

Dr. Goldenberg Co-host                                                                                                                                
12:17
Is that like a but for argument? Is that the same as but for, or is that a little different? 

Dr. Freeman Guest                                                                                                                                            
12:21
It is but for. Okay, but but for Is just another way of saying, without which and that is the counterfactual approach. 

And the counterfactual approach is what drives us into the three-step causation analysis you're asking, because it asks the question of well, okay, if the individual, the, the, the victim, the plaintiff, the, whoever it is that we're talking about, was City on a sofa and watching TV at the same point in time as the negative event that we're interested in the fall or the car crash or whatever the event is Would they still have the bad outcome at the same point in time? And so that focus is what the three-step causation analysis starts with, which Basically takes you through systematically, first asking whether or not the injury reasonably could have resulted from the exposure. 

Dr. Goldenberg Co-host                                                                                                                                
13:19
Meaning like what biologic plausibility, like stuff like that, like we have a mechanism that could explain it. 

Dr. Freeman Guest                                                                                                                                            
13:25
Sure, well, and you know, biologic plausibility tends to go towards what, what exactly was the biological mechanism went on here? It is that reasonable. You don't always have that information. For example, you might have five guys who are Painting in a room. They're just put into, they don't, they don't know each other. 

They're brought together and they're employed in a, in a warehouse and they said here, go paint this room. And they close the door on them and they open up two or three big five gallon buckets of what they thought was paint, but said there's a clear liquid in it. And someone comes in 15 minutes later and they're all passed out and they take him to the hospital and they end up getting like an acute pneumonitis, let's say a lung inflammation that causes you know three of them to need a lung transplant. All happens at the same point in time, all goes on within six months, but someone goes into the room and throws out the clear liquid. We don't ever know what it is. We don't know what the biologic plausibility is there, because we don't even know what the substance is. But from a counterfactual perspective, we say the chance of five guys who are completely healthy, who are unrelated to each other, don't have similar back. 

I see going into one place in them 30 minutes, all ending up getting an acute injury to their lungs which then turned into a chronic injury to their lungs. What's the chance of that happening? And you know it ends up being, you know, billions to one against. So you end up saying what we know that substances can make you sick. 

Even if we don't know what the substance is, we know that it can make you sick, and so sometimes you end up just looking at the but for part, which is well, what's the chance it would have happened but for the exposure to whatever it was? Hmm and so, just keeping that in mind, that there we're talking about a ratio between what's the chance of getting sick from the exposure, Gotcha but Versus what's the chance of getting sick in the absence of the exposure?

Dr. Goldenberg Co-host                                                                                                                                
15:21
He's moving his hands around. Ladies and gentlemen, even if we don't know what the exposure risk is, we can know what the chance of the condition resulting In the absence of the exposure is. 

Introducer Host                                                                                                                                                  
15:43
If you'd like to learn more about our unique approach to brain injury forensics, email us directly at info at brain injury research solutions Dot com or learn more on our website, www.braininjuryresearchsolutions.com. There you can sign up for webinars, explore featured papers and learn about the team. Enjoy the podcast. Don't forget to rate us and review us on Apple podcast to help spread the word. 

Dr. Goldenberg Co-host                                                                                                                                
16:28
So I want to break that apart, because I think there's a lot of pieces that you're touching on there that I want to clarify for the Audience, so so, okay, so we've got this. It so the sort of three-step approach. We have the, the plausibility. It's plausible and this was interesting to me that it doesn't have to be the exact Biologic mechanism. We don't have to know the exact Material, for example, so you can sort of like back in a but for argument all the way up top at this plausibility position, and then after that we have the temporality argument, like has to be connected in time. 

Dr. Freeman Guest  
17:02
Right. So the second step of the three steps is the temporality of the timing, because the closer a potential cause and an effect are in time, the less likely an intervening event is going to come in. An unknown event, or even a known event is that it's going to come in in between and intervene and be a cause. So the closer things are in time, that proximity is very, very critical. And then the very last step is looking at the alternative causes. What's more likely. 

So that actually is the closes the circle, if you will, of the counterfactual argument or the counterfactual analysis. 

Dr. Goldenberg Co-host 
17:48
Right, gotcha, okay. So like this could have happened, it followed, you know, b followed from A in a reasonable amount of time, and that will be debated, I'm sure. And then the other things that could have caused it were less likely to do so, and one of the and let's take this apart a little bit, because one of the things I think you touched on earlier in your answer was some of the plausibility aspects. So sometimes, like it's just like you've said to me, like Josh, if you show up and someone's got like a bullet hole in his skull, like you don't need to like go through all these stages, like we can pretty much infer what the cause is there. But sometimes you have to do this really advanced math and we're talking about when we'll get there in a second, these comparative risk ratios and things like that. So can you talk a little bit about when you have a causation argument that is in need of a more advanced analysis and when it's something that can be more qualitative or more intuitive? I think it's a language you've used in some of your work. 

Dr. Freeman Guest 
18:55
And in a forensic setting, particularly in a civil litigated setting or even a criminal setting. It has a lot to do with what kind of arguments are being put forth. I mean, you're really being asked to evaluate different theories from either side. 

So, for example, I was an expert for the state of Minnesota in the prosecution of Derek Chauvin for the murder of George Floyd, and the defense put forth the theory that George Floyd, you just can't tell what killed him and there's no way to say that what was done to him was, as a certainty, the cause of death, because, as a certainty, a cause of death is a bullet hole in the skull. 

So what we normally do is we say, look if we've got a decedent, and we examine them and there doesn't seem to be anything wrong with them. But we see a lot of bruising around their neck and we don't have any other information. We're going to make the inference that if you are applied enough force to the neck to actually cause bruising to it, that's probably enough force to actually cut off the blood oxygen supply and actually cause the person to asphyxiate. You don't actually have to find the evidence of asphyxiation, because often you won't find any evidence of it. Somebody is murdered in a horrible way by putting a plastic bag over their head and just leave it there, and then they asphyxiate, re-breathing carbon dioxide. 

When you take the bag off, you won't find any evidence of it, of what it is that killed them. 

And so in, for example, the case of the George Floyd murder, it is absolutely correct to say we don't know how long you have to kneel on somebody's neck to kill them. 

From a common sense perspective, I think the billions of people who saw the video were horrified and said, of course I could kill somebody. But that didn't prevent a very well qualified forensic pathologist from getting up on the defense and saying, no, I'd call this death undetermined. I just can't say this is a homicide, because the man had fentanyl in his system and he had coronary artery disease and he had all these other things that were going on with him. That all stand as competing causes and therefore and so we can't actually know that they killed him with the knee on the neck, because you don't actually have like a crushed vertebrae and a crushed larynx to show that he couldn't breathe. So I'm going to choose not to make the obvious inference and then I'm going to choose to point to everything else, but and it's kind of the elephant in the room, right- Because, the elephant in the room there is these guys murdered this poor man. 

But you have somebody who's got the nice suit, the nice haircut, the nice CV, speaks in a very confident tone from a point of eminence, saying I've done thousands and thousands of autopsies and they're there to try to convince the jury of something that you have all the experts on the other side saying that's not true. They can't both be right. And so how do you make a decision between the two? Is to use that counterfactual approach, the inference approach, because we have multiple explanations and now we want to weigh which explanation makes the most sense, has got the most weight behind it. And so. 

I can't tell you how many people would die if you melt on their neck for nine minutes, because we don't do horrible experiments on live people to see what it takes to kill them. But I do know how often black men who are were Mr Floyd's age, who have been exposed to fentanyl and have coronary artery disease, et cetera, how often we would expect a randomly selected black man with all of those characteristics to die within a nine minute period of time if they didn't have someone kneeling on their neck. Oh, I see. 

Dr. Goldenberg Co-host 
22:51
Okay, so you take all those other argue, competing arguments that the other side was making and you use population data, epidemiology, to then say during this time period, what are the chances that that would have happened? And then what? How do you then say it's just so infatestable that it must be the remaining option, which is this seems very obvious to those you know this common sensical, like you said. 

Dr. Freeman Guest 
23:15
Yeah, we have a highly credible cause of death, which we know. We don't have to find physical evidence of exactly how it killed, other than the inference of watching the video and saying, if you kneel on somebody's neck that there's a very high chance that you're going to compress their ability to breathe. And, most critically, this man became unresponsive and essentially died. 

Dr. Goldenberg Co-host 
23:40
Yeah, I mean, it just seems so obvious. 

Dr. Freeman Guest 
23:42
He was being knelt on. He didn't die. He didn't die at home on his sofa watching TV. Right. And so I think this is. It's a very as you, as you stated, it's a very obvious example, but it's also an example that I think does helps illustrate how expert testimony can just become very confused. 

Dr. Goldenberg Co-host 
24:05
So this, this is interesting because, like again, so my world, before getting obsessed mostly the fault of your work and Dr Batson's introduction of me to this world was in the evidence based medicine world, evidence of this world. And there's a parallel concept, I think, which is this the absence of evidence is not an absence of effect. And there's this I don't know if it's a bias or intellectual laziness that happens where people don't want to believe that something can happen and say, well, we don't have those randomized controlled trials, Therefore it must not exist. And so it seems very analogous to me where people are taking advantage of a lack of direct evidence to obfuscate or say that therefore it couldn't be this. But this is a very neat way to back into that. We say, well, we may have, we have pretty good evidence about all the other things, and then we use that to kind of back into probabilities, which I just think is really fascinating. 

Dr. Freeman Guest 
24:58
Yeah, it's a very interesting argument that I see, for example about complementary and alternative medical therapies, where you have patients saying I went to the chiropractor, the naturopath or the osteopath who manipulated me and you know I felt better at. So you actually have the evidence from the individual. So that is an empirically based way of determining that well, what was done to this person was helpful. And then you have someone who says, well, I don't like alternative medicine because I think it's all bad and I think it's all made up and I'm going to do a systematic review. And the systematic review is going to have high quality, randomized, controlled trials with crossover, and so we're going to set this rather high level of standard and say I reviewed all the literature and I never found anything that shows that this therapy helps. Therefore, there's no evidence it helps. 

No, that's not true. You know, when I went to did my internal medicine and medical school, I had a textbook which I can't find anymore. It wasn't Harrison's, it was a, but I don't remember what the textbook was. But on the faceplate it said if something works, keep doing it, if something doesn't work, stop doing it. And I just love that because ultimately we should all be empiricists, right, I detest. I detest the tyranny of of the you know, orthodox medicine or science to say nobody's good enough for my standards and I'm just going to apply whether we're standard. I want to say it's just not good enough because if you apply the same standard, the same randomized controlled trial standard, no one would get what knee cert anything. 

You know, I first got surgery. I mean, there's, there is, there is a what approximately 80% of the things that are done in medicine. What the comparison group is? That that you know, for some of these these, some of these studies I'm referring to, where they say, well, you know, here's medicine, over here is orthodoxy, and then here are all these people doing crazy things and they're all just terrible and we couldn't find anything that showed that what they did was effective. Therefore, it's not effective. Yeah, but you know what? Don't look in the mirror, because you'd have to say the same thing about what it is that you're holding up as the paragon of evidence based practice. 

Dr. Goldenberg Co-host 
27:27
I've seen estimates of like 87% of what's done in medicine is does not have randomized controlled trial data, or at least systematic review level, randomized controlled trial data. It's just we just don't know, we just haven't done the studies and, to your point, the to apply different criteria based on your a priori beliefs is is the issue there, and so I think that's why I love you know what you're trying to do with this systematized evidence based forensic approach, which is to say like we're going to put our methods on the table and anyone can reproduce it and anyone can follow or fault it or say you know what we disagree and this is why and here's a citation or we think you know this probability is often. This is why, as opposed to, here's my eminence and here's my position. So yeah, just find that fasting. 

Dr. Freeman Guest 
28:17
Right, right, that's a good way to put it, I think it's. Ultimately, the purpose is to improve social justice and the delivery of justice in the courts by improving social justice, by getting these methods spread so that they're more widely used, so that everybody is playing on the same surface. As much as we can help help Get that, that word out part of part of what you're doing and learning more about this. This particular area area is spreading the word and helping more people understand. You don't have to, you don't have to just guess at a cause based on who's paying you or what your personal beliefs are or or what your, your personal biases consist of. It really should be something that that we can all agree on, and that's the one thing that is that must be emphasized and can't be emphasized enough. A causation determination is not a diagnosis, and there are just far too many courts where that's not well understood, where they think oh, can you explain that a bit? 

Dr. Goldenberg Co-host 
29:32
I've heard you say that before, can you? Can you unpack that a bit, sure? 

Dr. Freeman Guest 
29:36
So a diagnosis is something that is typically observed or can be agreed upon by multiple observers. So a broken leg is something we can all see on an x-ray and can't really be denied. But what caused a broken leg? For example, if someone was in a traffic crash at an intersection where two impacts occurred, you could go to the doctor and say what happened and the doctor says it's a broken leg. You say, well, which of the crashes caused the broken leg? And the doctor says I don't know. I don't know about crashes, but that's causation. So now you're asking the doctor because let's say, there are two different potential tort visas at an intersection who is the responsible party Can become very, very important. Now you're getting completely out of medicine. You're going to need engineering discipline, crash reconstruction, some biomechanics thrown in and probably epidemiology to understand the risk of a broken leg in both types of crashes. 

So now you're actually coming up with something that is more evidence-based, because you can say well, crash A has a 20% chance of causing a broken leg and crash B has a 5% chance. So while we can't know which crash caused the injury, we can say crash A is four times more likely 20 versus 5% than crash B. 

Dr. Goldenberg Co-host 
30:52
Dr Freeman, just one last question. I think the thing that fascinates me so much about this is we get to use, like we have, almost, this philosophical question, because you're right, because in medicine it's like okay, you make the diagnosis, you learn the algorithm, you learn what to do in that situation, you learn the bedside manner to the theater of medicine, and that's awesome and I like practicing. But this sort of like well, what caused this and how do we know what we know? It's almost a very philosophical question and the idea that you can use stats to get us there and statistics to get us there and say, look, we don't know for sure, we don't have a God's eye view, but we can talk probabilities and we've got good evidence behind probabilities and when we can stack those in a certain way, it may be useful to a trier fact, and I just find that absolutely fascinating. And so with the last question I get, well, I've got a very specific question and then maybe a big picture question, so I'll ask both and you could decide what you want to answer or maybe both. But the specific question is in civil versus criminal, how does this play out? 

I've heard people say okay, in a civil case, we're talking about more than 50% likelihood or probability. How does that play out in criminal Are we talking about? Is it really 95%? What does certain without a shadow of doubt mean? And then the big in a statistical way, and do people agree on that? And then on big picture so you've done so much in this field. You guys just published that inference paper just a couple of years ago. You have the book on forensic epidemiology. Where do you see the field? Or would you like to see the field move in the next, say, 10 years? 

Dr. Freeman Guest 
32:33
Well, I consider myself something of an evangelist on this topic, and that is that I'm willing to go knock on doors and ask people if they've seen the light. 

Dr. Goldenberg Co-host 
32:42
Or come on podcasts. Open your ears. 

Dr. Freeman Guest 
32:46
I usually do that from a lecture or as an author, but also as a professor, and I run this PhD program in forensic medicine that really focuses on causality and understanding cause and effect and applying epidemiology in a forensic setting, and the more that's done, the more people are understanding this and reading about it, the better the situation is going to get in the courts, the more reliable the information the courts will rely on. To answer your first question, though, how do you compare this more problem than not versus the beyond a reasonable doubt? 

Dr. Goldenberg Co-host 
33:31
Of course you're not. Yeah, how do you translate stats to that? 

Dr. Freeman Guest 
33:36
Exports are not required to testify beyond a reasonable doubt. Oh even, oh, the jury is required to find that the state has proven its case beyond a reasonable doubt. 

Dr. Goldenberg Co-host 
33:50
I see, I see. 

Dr. Freeman Guest 
33:52
But if I say that, more often than not you will find that the cause of a particular condition is something that may be relevant and helpful to a jury in conjunction with other evidence. If the only evidence I give is two out of three times my explanation is going to be correct, which would meet the more probable than not standard, but it was the only evidence that the jury had to consider for what is true beyond a reasonable doubt, then it would become fascinating. The same thing. Now, what the jury has, all they have is what it is that I have seen. 

And so it's a little bit more complicated in nuance than just what the expert says. 

Dr. Goldenberg Co-host 
34:38
Oh, that's interesting, Okay. So from an expert's perspective, you really are. If we're going to be doing this thing of translating or mapping statistics onto law terminology or law concepts, we're talking about 50 plus percent for more likely than not. But we don't even need that interesting, okay, I hadn't thought about it that way. That's so interesting. And then on that topic, like is that an accepted I know there's a few court cases that are quoted on this Is that like sort of an accepted approach to use stats in that way to understand that more likely than not position? Is that sort of done case law at this point? Or there are still people that say this isn't a math issue. 

Dr. Freeman Guest 
35:22
Well, I mean, if you're going to require someone to testify to what is true more than 50 percent of the time, you have now put onto that expert a number. You've now forced that expert into a box and the expert may not be very comfortable about it. But it's one of the interesting things about causation, because you may say to an expert that you have to testify to a reasonable degree of probability. The expert says I don't know what that is yeah, right, what does that mean? 

Dr. Goldenberg Co-host 
35:51
I mean, what does that mean? 

Dr. Freeman Guest 
35:54
Well, what? More than 50 percent? More than 50 percent has to be true. The expert may or may not say that that's true. But if you say to the expert and phrase the question in a different way, all I want to know is do you think that it's likely that the person would have had the stroke two days later if they hadn't gotten the traumatic brain injury in the car crash? Or do you think that the brain injury is related to the stroke? And they say, oh, yeah, yeah, I don't think they were going to have the stroke. No, absolutely not. No, the traumatic brain injury is definitely the cause. I just don't want to say more problem than not. Yeah, but that's what you just said. And helping people understand how probabilistic thinking is sometimes kind of tricky. It's not the way we always think, even though we weigh everything around us at all times. We decide to pull out from an intersection when we're waiting for traffic because we think it's likely we're going to clear the intersection before that car coming down the road is going to hit us. 

Yeah, we're judging these things all the time and we're weighing probabilities all the time. Our mind is designed for it. Our mind just isn't very well designed to actually put a number on it. 

Dr. Goldenberg Co-host 3
7:04
That's interesting. So these heuristics we use, or these gut intuitions that we use, like in medicine, like when I'm working with patients, I'll often say, ok, this is my active hypothesis for what I think is going on with you, or you meet criteria for this diagnosis, but this is a very different sort of thing. And you're saying we are making these probability determinations anyway, we just aren't great about mapping language onto it, which is kind of interesting. 

Dr. Freeman Guest 
37:29
They're always behind the scenes. They're always behind the scenes. 

Dr. Goldenberg Co-host 
37:32
That's a neat way. I hadn't thought about it that way. Well, it looks like we're coming to our time. Apologies, dear listener. For the technical issues, Dr Batson, of course, will join us with all future podcasts. Dr Michael Freeman, thank you so much for your time. That was an outstanding conversation. We really appreciate it. 

Dr. Freeman Guest 
37:48
Thanks for having me, Josh. I appreciate it. 

Introducer Host 
37:57
Thank you for listening to the Brain Injury Forensics podcast with Dr.'s Batson and Goldenberg, brought to you by Brain Injury Research Solutions. If you'd like to learn more about our unique approach to brain injury forensics, email us directly at info@braininjuryresearchsolutions.com, or learn more on our website, www.braininjuryresearchs.com. There you can sign up for webinars, explore featured papers and learn about the team. Enjoy the podcast. Don't forget to rate us and review us on Apple Podcast to help spread the word.