Criminal Justice Section
Criminal Justice Magazine
Volume 16, Issue 3
Paul C. Giannelli
Lies, lies, and more lies. In a recent drug case before the D.C. Circuit, the prosecution called an expert on drug distribution to testify that the heroin in the defendant's possession was intended for more than personal use. The witness told the jury he was "a Board-certified pharmacist. I receive, maintain compound and dispense narcotic as well as non-narcotic substances per prescription." (United States v. Williams, 233 F.3d 592, 593 (D.C. Cir. 2000).) The expert was a liar. After his client was convicted, the defense attorney learned that the expert "was not a pharmacist and had no degree in pharmacology, facts unknown to the prosecution during the trial." In fact, this prosecution expert reportedly testified in thousands of cases, misrepresenting his credentials for at least 16 years. (See Jonathan Groner, Your Expert Lied-for 16 Years. . . . , LEGAL TIMES, July 3, 2000, at 8.). The government has lost some cases because of this witness, but not Williams because the D.C. Circuit held that the perjury did not change the outcome of the trial, a very troubling finding. (See also United States v. Davis, 113 F. Supp. 2d 1, 3 (D.D.C. 2000) (defense attorney not ineffective in failing to discover the false credentials of the same expert because the accused could not show prejudice.) Even many defense attorneys had stipulated to this expert's qualifications, erecting another barrier to obtaining a new trial.
Prosecution experts are not alone in creating such fabrications. One defense witness claimed to be a child abuse expert. Indeed, he testified that he was a retired New Jersey state police officer with a bachelor's degree in criminal justice and a master's degree in public health-both, however, were from the University of San Moritz. (See Mark Hansen, Inexpert Witness: Lies, resumé fraud take down "expert" before he takes stand again, 87 ABA J. 20 (Feb. 2001).).
Unfortunately, these are not isolated cases. In a surprising number of cases experts have misrepresented their credentials. In one case, an FBI serologist testified that he had a master's degree in science, "whereas in fact he never attained a graduate degree." (Doepel v. United States, 434 A.2d 449, 460 (D.C. App. 1981).) In another case, a death sentence was vacated when it was discovered that a prosecution expert, who had testified in many cases, had lied about her professional qualifications as a lab tech. "She had never fulfilled the educational requirements for a laboratory technician," according to Commonwealth v. Mount, 257 A.2d 578, 579 (Pa. 1969). And a psychologist was convicted of perjury for claiming he had a doctorate degree during serial killer Ted Bundy's trial. (Kline v. State, 444 So. 2d 1102 (Fla. Ct. App. 1984).)
Professor James E. Starrs has written comprehensively on this topic, noting that one firearms expert took partial credit for "the development of penicillin, the Pap smear, and, to top it all off, the atomic bomb." (James E. Starrs, Mountebanks Among Forensic Scientists, in 2 FORENSIC SCIENCE HANDBOOK 1, 7, 20-29 (R. Saferstein ed. 1988).). Truly a Renaissance Man in the postmodern age.
In a Cleveland case, a thief and forger testified as an expert in questioned document examinations. When his misrepresentations were revealed by the newspapers, he was charged with and convicted of perjury. During sentencing, he submitted forged documents purportedly signed by his physician. Clever devil. When the press questioned the lawyer who had called the man as a witness, he stated, "It's not my job to check out people's credentials." But, of course, it is.
In People v. Cornille, 448 N.E.2d 857, 865 (Ill. 1983), the Illinois Supreme Court got it right, by concluding that false testimony of this type may violate due process. The court would not let the prosecution "avoid responsibility" for the false testimony by claiming ignorance, pointing out that it would have been a "simple procedure" to verify the witness's qualifications. The court went on to note "that every party, including the State, has an obligation to verify the credentials of its expert witnesses. It is only on the basis of these credentials that experts are permitted to offer their professional opinions concerning the factual issues disputed in the criminal proceeding. . . . Pitting the defendant's protestations of innocence 'against the objective test results of an expert is an acceptable contest in an adversary proceeding, but only when all the players are on the official roster, and not when one is a ringer.'" (Id. at 865-66.)
It is the attorney's obligation to seek out this information prior to trial. Unfortunately, criminal discovery often does not explicitly cover credentials. The expert discovery provisions of the Federal Rules of Criminal Procedure provide only for the disclosure of reports and summaries. (FED. CRIM R. 16(a)(1)(D) &(E).). Nevertheless, judges have inherent authority to order discovery and an obligation to prevent perjury in their courtrooms. The Civil Rules of Procedure offer a model. Under Rule 26(2)(B), experts are required to provide written reports that specify "the qualifications of the witness, including a list of all publications authored by the witness within the preceding ten years; the compensation to be paid for the study and testimony; and a listing of any other cases in which the witness has testified as an expert at trial or by deposition within the preceding four years."
A final point is worth remembering. As Professor Michael J. Saks insightfully asks: "But if people are willing to lie about something [credentials] on which it is so easy to be caught, how common and how damaging to the fact-finding process are misrepresentations about the substance of forensic science: fabrication of findings, exaggeration of findings, withholding of exculpatory findings, and other knowing attempts to create in the fact finder an impression that is not supported by the scientific evidence?" (Michael J. Saks, Prevalence and Impact of Ethical Problems in Forensic Science, 34 J. FORENSIC SCI. 772, 789 (1989) (listing other cases).)
Paul C. Giannelli is the Albert J. Weatherhead III & Richard W. Weatherhead Professor of Law, Case Western Reserve University. He is coauthor of Scientific Evidence (Lexis 3d ed. 1999) and writes on expert testimony and forensic science. He is also a member of the editorial board of Criminal Justice maga