9th Circuit Overturns Expert's State Perjury Conviction

In an en banc decision, the Ninth Circuit has granted habeas corpus relief to an expert physician convicted of giving perjurious testimony about his qualifications in a personal injury trial. From the majority opinion:

Before plunging into the details of this perjury case, it is worth recalling “the traditional Anglo-American judgment that a prosecution for perjury is not the sole, or even the primary, safeguard against errant testimony.” Bronston v. United States, 409 U.S. 352, 360 (1973). Underlying this limited role of perjury prosecutions is the “one consideration of policy [that has] overshadowed all others during the years when perjury first emerged as a common-law offense: ‘that the measures taken against the offense must not be so severe as to discourage witnesses from appearing or testifying.’ ” Id. at 359 (citation omitted). Quoting a nineteenth century treatise to the effect that “the obligation of protecting witnesses from oppression, or annoyance, by charges, or threats of charges, of having borne false testimony, is far paramount to that of giving even perjury its deserts,” Bronston held that intent to mislead, or actually misleading, a jury or other factfinder is not sufficient to make out the crime of perjury. Id. at 359. California law is the same. In re Rosoto, 519 P.2d 1065, 1071 (Cal. 1974) (holding that “failure to volunteer testimony to avoid the misleading impression does not constitute perjury,” and citing Bronston approvingly).

These cautions apply with particular force to expert witnesses such as Chein. Although paid, usually well, for their efforts, such witnesses generally appear because they freely choose to do so, often with considerable immunity from subpoena. See generally Janet Fairchild, Annotation, Right of Independent Expert To Refuse To Testify as to Expert Opinion, 50 A.L.R.4th 680 (1986). Unless the strict requirements governing perjury convictions developed by the common law and applied by California are carefully applied, the willingness of experts to assist factfinders with the specialized knowledge needed to decide many cases, see Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579 (1993), may atrophy.

Judge Berzon's opinion was joined by Chief Judge Schroeder and Judges Hawkins, McKeown, Wardlaw, Gould, and Berzon. Judge O'Scannlain dissented, joined by Judges Rymer, T. Nelson, Rawlinson, and Clifton. See Chein v. Shumsky, No. 01-56320 (9th Cir. June 25, 2004).