Criminal Justice Section
Criminal Justice Magazine
Volume 19 Number 1
Expert Qualifications: Who Are These Guys?
Paul C. Giannelli
Paul C. Giannelli is the Albert J. Weatherhead III & Richard W. Weatherhead Professor of Law at Case Western University Law School in Cleveland, Ohio. He is coauthor of Scientific Evidence (LEXIS 3d ed., 1999), and a contributing editor to Criminal Justice magazine and a member of its editorial board.
In the classic western film, Butch Cassidy and the Sundance Kid, a posse relentlessly tracks Butch and Sundance across plains, through rivers, and over mountains. Because of the posse's dogged pursuit, Butch and Sundance repeatedly 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 some 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 the following drug "expert," who had 43 years of experience and more than 2,500 court appearances: "[The expert] admitted that not only did he not have a college degree, but that he had never even finished high school. He claimed that heroin was an alkaloid, which it is, but did not remember what an alkaloid was. He could not draw the structure of heroin or benzene, one of the commonest and simplest organic molecules. . . . In addition, he could not explain any single chemical reaction about which he had testified." (Bruce Stein et al., An Evaluation of Drug Testing Procedures Used by Forensic Laboratories and the Qualifications of Their Analysts, 1973 WIS. L. REV. 727, 728.)
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." (Id. at 1112.)
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:
o 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 organization 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."
o 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."
o 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 study of a person's personality as revealed by his handwriting. The witness did testify that she had experience in questioned document examination, and was not solely involved in graphoanalysis. However, the witness could not provide an understandable explanation of her qualifications. She was not certified by the American Board of Document Examiners, her actual experience was not defined, and she had never before been qualified as an expert witness."
o Graves v. State, 547 N.E.2d 881, 882 (Ind. App. 1989). "The witness testified she was a graphoanalyst, a graduate of the International Graphoanalysis School in Chicago, a member of the International Graphoanalysis Society, and the World Association of Document Examiners, and had previously testified as an expert on four occasions." (emphasis added).
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." (Id. at 958.) Apparently he was not impressed by her education:
Hill's formal education went no further than high school. She had done some secretarial work in a chancery clerk and law office. While a housewife, and going to school at night studying typing, bookkeeping, and secretarial work, she also took a correspondence course with the "International Graph-Analysis Society Institute" in Chicago, finishing an eighteen-month course of 20 lessons in approximately nine months to a year, she said. [Obviously a quick study.] She had also obtained a "Master's Degree" from this same institution by taking further correspondence courses, the length of which she did not state. The "Institute" teaches 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." [Note the judge's Ivy League bias.]
He also thought her background reading was a bit sparse:
She knew nothing about Ardway Hilton, the author of The Scientific Examination of Questioned Documents.
She knew nothing about Conway on Evidential Documents.
She knew nothing about Wilson R. Harrison, the author of Suspect Documents.
As to another eminent authority, Albert Osborn, Hill thought she knew him, and also believed he had gone to the graphoanalysis school just as she had, and written a book about it which made him rich. But, she added, "I don't know if he knows any more about it than I do."
I am not finished. 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.
(Id. at 105-06, 106 n.3.) (emphasis added).
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. (Id. at 289 n.1.) That's right-a janitor!
If there really is a Croaker College for frogs, why is it that we are not surprised that it is located in California?