most exciting, or the most colorful, emotional or dramatic. But in terms of the sheer damage he could, and no doubt would, inflict upon the defense, the expert promised to have an impact on the outcome far greater than anyone else the prosecution would put on the stand.
It therefore came as something of a surprise to Jaywalker when he learned on Friday morning that it wouldn't be Abe Firestone handling the direct examination, but David Kaminsky. Then again, it made a certain amount of sense. This was a technical world they were about to enter, a world of academic credentials, hypothetical questions and expert opinions. It was a world where Firestone's bluster and bravado would be of little advantage compared to Kaminsky's knowledge of the rules of evidence and the laws of biochemistry.
'The People call Dr. Malcolm Rudifer,' Kaminsky announced, and a tall bald man who might have been anywhere from fifty to seventy strode into the courtroom. He wore a hound's-tooth checked jacket over a patterned wool vest and striped tie, complemented by a pair of faded tan corduroy slacks. If the outfit harkened back to an earlier millennium, it also threatened to bring on an acute case of vertigo in the beholder.
Despite the fact that Jaywalker rose to state that he was fully prepared to stipulate to the witness's expertise, Kaminsky spent a good twenty minutes questioning Rudifer about his credentials. They included a master's degree and two doctorates, a teaching fellowship at Columbia University, a stint at the National Institutes of Health, the publication of six books and forty-some articles, and over thirty years spent studying the changes that occur in the human body and brain when ethyl alcohol is introduced to the equation.
KAMINSKY: The People now offer Dr. Rudifer as an expert in the metabolism of alcohol.
JAYWALKER: As I tried to say half an hour ago, we're more than happy to concede that he is.
Justice Hinkley spent a few minutes explaining to the jurors what that meant and didn't mean. While it didn't mean that they'd have to accept his testimony as true, or regard it as any more or less important than that of any other witness, it did mean that he would be permitted to offer his opinion on matters that fell within his particular area of expertise.
KAMINSKY: Dr. Rudifer, are you familiar with a cocktail known as the martini?
RUDIFER: I am. A martini comprises mostly gin, although occasionally vodka is substituted for the gin. To the gin is added a small amount of dry vermouth, a white wine. Often a garnish is added, typically a green olive, a small onion or a twist of lemon peel.
KAMINSKY: How much alcohol is contained in the average martini?
RUDIFER: Roughly an ounce. Gin and vodka tend to be 86 or 90 proof, meaning they're forty-three to fifty percent alcohol. The typical martini glass holds three ounces of liquid, or a bit more. Half of that comes out to roughly an ounce and a half of pure alcohol.
KAMINSKY: And are you familiar with tequila?
RUDIFER: I am. Tequila is made from an extract of the agave plant. Tequilas can range anywhere from 80 proof to 150 proof. That translates to forty percent pure alcohol all the way up to seventy-five percent.
KAMINSKY: If the particular tequila in question happened to be 120 proof and undiluted, how much pure alcohol would you expect to find in a one-and-a-half-ounce glass?
RUDIFER: Well, again 120 proof means sixty percent. So I'd expect to find six-tenths of an ounce of alcohol in each ounce of liquid. Multiply that by one and a half, and you get point-nine-oh, or nine-tenths of an ounce of pure alcohol.
Kaminsky asked some questions about variables, including the gender of the drinker, his body weight, what he'd had to eat, and the amount of time over which he'd consumed the alcohol. Then he took a deep breath and asked the first of his hypothetical questions.
KAMINSKY: Dr. Rudifer, I'm going to ask you to assume that a two-hundred-pound male has had nothing to eat since breakfast time. Beginning about five o'clock in the afternoon, and continuing to about eight-thirty in the evening, he consumes a small amount of fried chicken wings. Over that same period of time, he drinks three martinis and six or seven one-and-one-half-ounce glasses of 120-proof tequila. First of all, are you able to give us your expert opinion, to a reasonable degree of scientific certainty, as to how much pure alcohol he would have ingested during that time?
JAYWALKER: Objection.
THE COURT: Come up, Counsel.
Up at the bench, Jaywalker explained his unease with the vagueness of the terms breakfast time and small amount. And were buffalo wings actually fried? Having managed to steer well clear of them his entire life, he had no idea. But the things were so small. Wouldn't it take a ridiculous amount of them, flapping like crazy, to get a full- size buffalo off the ground?
'Anything else?' the judge asked.
'Give me a minute. I'll think of something.'
'Objection overruled.'
As well it should have been. And Jaywalker had expected as much. All he'd really been interested in doing was to interrupt, to break the flow of Kaminsky's direct examination, and to see if he could ask the question all over again. If he changed it in any material way, Jaywalker planned on objecting again.
But the judge was on to his game. 'Read back the question,' she instructed the court reporter.
When finally given an opportunity to answer, the witness stated that in his opinion, the hypothetical man would have ingested somewhere between 9.9 and 10.8 ounces of pure alcohol, depending on whether it had been six or seven tequilas that he'd had.
KAMINSKY: And based upon the same set of assumptions, do you have an opinion, again to a reasonable degree of scientific certainty, as to the percentage of alcohol, by weight, that that same man would have in his bloodstream some thirty to forty-five minutes after consuming the last of those drinks?
Again Jaywalker objected. Again his objection was overruled, this time without the courtesy of an invitation to approach the bench.
RUDIFER: I do. Taking the lower figure, the 9.9 ounces of pure alcohol, to give the man the benefit of the doubt, it is my opinion that he would have a blood alcohol content of. 20, or twenty one-hundredths of a percent.
KAMINSKY: Can you tell us how you arrive at that figure.
RUDIFER: Yes. It's quite simple. Studies conducted over many years, with many thousands of subjects, tell us that for the average male, the ingestion of one ounce of alcohol raises the amount in his blood by two- hundredths of a percentage point. The 9.9 ounces would therefore have produced a percentage by weight of. 198. I then rounded that figure off to two decimal places, as is customary, and came up with. 20.
KAMINSKY: Are you familiar with the expression 'the legal limit'?
RUDIFER: I am. It refers to the maximum amount of alcohol one may have in his blood before he reaches the level prohibiting him from driving in New York State, as well as in the other forty-nine states.
KAMINSKY: What is the legal limit?
RUDIFER: It is. 08, eight one-hundredths of a percent.
KAMINSKY: The. 20 you came up with for our hypothetical man. Is that more or less than the legal limit of. 08?
RUDIFER: More.
KAMINSKY: By how much?
RUDIFER: By a factor of two and a half, or two hundred and fifty percent.
KAMINSKY: In other words This time Jaywalker's objection was sustained. But it was cold comfort. Had it been a chess match they were competing in rather than a trial, it would have been the equivalent of capturing a pawn after losing your queen, two rooks and a bishop.
Next, Kaminsky had the witness describe the effects of such an amount of alcohol on one's ability to operate a motor vehicle.
RUDIFER: Again, we have a huge body of studies and literature on the subject. We know from hundreds of controlled experiments that perception, motor coordination, hand-eye coordination, response and reaction time, and judgment all become impaired. And we know that the degree of impairment increases in direct proportion to the increase in blood alcohol content. We also know this, unfortunately, from the vast number of motor vehicle accidents in which alcohol has been confirmed to have been a contributing cause, if not the cause, of the accident.
Jaywalker looked around. Not at the jurors, who- he'd long ago noticed-were listening to Dr. Rudifer with rapt
