GPSolo Magazine - September 2004

Trial Practice

Expert Qualifications: Who are These Guys?

In the classic western film Butch Cassidy and the Sundance Kid, a posse relentlessly tracks Butch and Sundance. Because of the posse’s dogged pursuit, Butch and Sundance shake their heads in bewilderment and ask, “Who are these guys?” The same question often springs to mind when I read about the qualifications of experts.

Some courts seem to follow the old trial lawyer’s adage: “If the guy comes from out of town and carries an attaché case, he’s an expert.” For instance, a study of drug testing laboratories in the 1970s discovered a drug “expert” who had 43 years of experience and more than 2,500 court appearances. The expert admitted not only that he didn’t have a college degree, but that he had never finished high school. While he knew that heroin was an alkaloid, he could not remember what an alkaloid was. He could not draw the structure of heroin or benzene, one of the commonest and simplest organic molecules. He also could not explain any single chemical reaction about which he had testified.

The prosecution, of course, does not have a monopoly on such “experts.” In State v. Barnes, 597 So. 2d 1109 (La. App. 1992), the testimony of a defense expert concerning a pellet-dispersion-pattern test was excluded because the court deemed the expert unqualified. The witness “became a gunsmith after completing a correspondence course. He had never received training in forensic science, firearms identification, or ballistics. He had never testified as an expert in any area. He worked as a sales clerk at a hardware store and in his own gun repair business.”

Graphologists. Cases involving graphologists as questioned documents examiners also illustrate this point. Graphology, the study of handwriting to determine personality and character, is a little like witch doctoring, but without the rigorous standards. In United States v. Bourgeois, 950 F.2d 980, 986 (5th Cir. 1992), the Fifth Circuit upheld a trial court’s exclusion of the testimony of an “expert” who was not a member of the American Board of Forensic Document Examiners, who practiced graphotherapy in addition to handwriting comparison, and who acquired a master’s degree in graphoanalysis and a Ph.D. in metaphysics and religion by correspondence. There are more:

State v. Livanos, 725 P.2d 505, 507 (Ariz. App. 1986). The record revealed that the witness “had never testified in a superior court in Arizona, that the last time he had testified in a superior court was in Indiana in 1969, that he belonged to an organi-zation called World Association of Document Examiners, . . . whose admissions procedures were very informal, but that he was not certified by the American Board of Forensic Document Examiners.”

Carroll v. State, 634 S.W.2d 99, 102 (Ark. 1982). “He had taken a correspondence course from the International Graphoanalysis Society of Chicago, which had certified him. . . . In his twelve years of alleged experience ‘in questioned document work’ he had testified as an expert only once, in Clinton, Iowa, and had ‘worked with’ law enforcement officers in two Arkansas counties, but the cases did not come to trial. . . . He was not a member of the Academy of Forensic Sciences.”

People v. Tidwell, 706 P.2d 438, 439 (Colo. App. 1985). The proposed expert, who was regularly employed as a court clerk, had knowledge of graphoanalysis. The witness testified that she had experience in questioned document examination and was not solely involved in graphoanalysis. However, she could not provide an understandable explanation of her qualifications. “She was not certified by the American Board of Forensic Document Examiners, her actual experience was not defined, and she had never before been qualified as an expert witness.”

So, you are thinking the system is working—the courts are excluding these experts. Read Hooten v. State, 492 So. 2d 948 (Miss. 1986), reversing a murder conviction because the trial court excluded an expert’s testimony. One judge respectfully dissented: “If this witness has indeed testified over 300 times as an expert on discovering spurious handwriting as she claimed, it is an astonishing indictment on the gullibility of lawyers and judges.” The expert’s formal education went no further than high school. She had worked as a secretary in a law office. She admitted that, while a housewife and going to school at night studying typing, bookkeeping, and secretarial work, she also took a correspondence course in Chicago, finishing an 18-month course of 20 lessons in a little under a year. She had also obtained a “master’s degree” by taking further correspondence courses, the length of which she did not state. The “Institute” taught entirely by correspondence courses. When she finished her course, for a fee they permitted her to go to a graduation in Chicago, wear a cap and gown, and attend all the festivities. There she first met her “professor.” The judge also thought her background reading was a bit sparse. She knew nothing about the writings of several well-known experts in the field. She did have knowledge of one fellow expert—she believed he had gone to the graphoanalysis school just as she had and written a book about it that made him rich. But, she added, “I don’t know if he knows any more about it than I do.”

Hypnotists. I saved the best for last. In Gee v. State, 662 P.2d 103 (Wyo. 1983), even the prosecutor had difficulty stating his expert’s qualifications. The majority avoided this “little” problem by holding that the hypnotist did not need any qualifications. Anticipating the exacting standards that Daubert would demand a decade later, the dissent wrote:

It follows, therefore, that a hobo passing through town or a derelict in the county jail could hypnotize a potential witness, and the witness’s testimony would be admissible at trial. . . . There is a man in Oakland, California, who is the dean and lone “professor” at “Croaker College.” For the sum of $150 each, this man trains frogs to jump. . . . As part of his rigid training curriculum, the “professor” claims that he hypnotizes the frog; while they are in their hypnotic trance, he plays an attitude-improvement tape to them. Under our present standards the dean of “Croaker College” would be over-qualified as a hypnotist.

In a subsequent case, the majority described the hypnotist as a “non-professional with meager training in hypnotic techniques,” Haselhuhn v. State, 727 P.2d 280, 283 (Wyo. 1986), cert. denied, 479 U.S. 1098 (1987). From the dissent we learn that the “meager training” was a 32-hour home course and that the hypnotist was also a maintenance man at Pacific Power and Light Company. That’s right—a janitor!

Paul C. Giannelli is the Albert J. Weatherhead III and Richard W. Weatherhead Professor of Law at Case Western University Law School in Cleveland, Ohio. He can be reached at pcg@cwru.edu.

for more information about The Criminal Justice Section

- This article is an abridged and edited version of one that originally appeared on page 70 of Criminal Justice, Spring 2004 (19:1).

- For more information or to obtain a copy of the periodical in which the full article appears, please call the ABA Service Center at 800/285-2221.

- Website: www.abanet.org/crimjust/.

- Periodicals: Criminal Justice, 64-page quarterly magazine; Criminal Justice newsletter, 3 times per year; White Collar Crime newsletter, 4-5 times per year.

- Books and Other Recent Publications: The Child Witness in Criminal Cases; Successive Criminal Prosecutions: The Dual Sovereignty Exception to Double Jeopardy in State and Federal Courts; The Criminal Lawyer’s Guide to Immigration Law: Questions and Answers on Representing Noncitizens; The Federalization of Criminal Law; The Environmental Crimes Case; Annual Survey of Supreme Court Decisions; Fourth Amendment Handbook, 2d ed.; Ethical Problems Facing the Criminal Defense Lawyer; Portable Guide to Federal Conspiracy Law: Developing Strategies for Civil and Criminal Cases; Practice Under the Federal Sentencing Guidelines; Juvenile Justice Standards, Annotated; ABA Standards for Criminal Justice; Less Boring Direct Examination (videotape) ; The Science of Cross-Examination (videotape).

 

 

 

 

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