Monday, February 4, 2008
Evidence And Ethics 6: Professor Giannelli and Professor McMunigal's Prosecutors, Ethics, and Expert Witnesses
The contribution of Case Western Reserve University School of Law Professors Paul C. Giannelli and Kevin C. McMunigal to the Evidence and Ethics Symposium is their article, Prosecutors, Ethics, and Expert Witnesses.
The article begins with the interesting fact that a study of the DNA exonerations secured through the Cardozo Law School's Innocence Project revealed prosecutorial misbehavior in 42% of cases, with one-third of those case involving "'tainted or fraudulent science.'" From this data, the professors ask tough questions and raise a range of possible reforms addressed at the intersection of prosecutorial ethics and the selection and presentation of expert evidence.
Part I cites several case examples of prosecutors engaging in expert "shopping": seeking out experts based upon the expert's willingness to support the prosecution's theory of the case regardless of the soundness of the expert's view." After reviewing the pernicious consequences of expert shopping, the professors conclude that (1) the reckless use of a tainted expert should be considered a due process violation, and (2) a similar due process obligation should extend to the content of an expert's testimony.
Part II looks at how prosecutors have acted improperly (and yet often without sanction) in disclosing scientific evidence during discovery by, inter alia, engaging in late disclosyre, omitting information from laboratory reports, declining to have expert reports prepared, and failing to disclose exculpatory evidence. The authors raise several recommendations for addressing this problem:
-(1) amending discovery provisions in accordance with the 2006 ABA Criminal Justice Standards on DNA Evidence;
-(2) amending ethical and discovery rules so that the explicitly require the prosecutor to instruct crime laboratories and other experts of their Brady obligations; and
-(3) actually enforcing the rules.
Part III looks at different ways in which prosecutors have presented expert testimony in a misleading manner, ranging from withholding information at trial to the failure to correct overstatements. Finally, Part IV raises a number of interesting observations and reforms, with the most compelling being to add a provision to Model Rule 3.8 that would make it an ethics violation for a prosecutor to knowingly, recklessly, or negligently offer defective scientific evidence.
In response to an e-mail about the article, Professor McMunigal wrote me:
"Paul has done a lot of work concerning corrupt scientific evidence. I have written about prosecutor ethics. So the topic was a natural one for us to collaborate on."
It's apparent that the collaboration paid off as the article does a terrific job of addressing both issues.