Friday, July 09, 2004

Today's Item on Judicial Tolerance for "Collateral" Expert Perjury

Just a couple of weeks ago, the Ninth Circuit caused raised eyebrows in certain quarters when it overturned the perjury conviction of an expert who had stretched his credentials under oath. Now Martha Stewart's complaints about allegedly perjurious expert evidence have been likewise been rebuffed, partly on the ground that the false testimony at issue concerned such merely "collateral" matters as whether the expert actually participated in the relevant forensic tests, as he claimed.

Expert testimony revolves primarily around expert opinion, and experts can generally assume that even insincerely proffered opinions will not precipitate perjury charges. Maybe that's as it should be. But such matters as an expert's qualifications, or his role in conducting the tests on which his testimony relies, are matters of comparatively brute fact. It seems legitimate occasion for concern, if experts are seen as having free rein to prevaricate about those. To be sure, we are discussing a pair of examples where the experts have scarcely had a free ride. Both were charged with the crime of perjury. But in both cases, there has been a slightly puzzling lack of judicial indignation over witnesses whose honesty may not have lived up to courtroom standards.

If jurors are the commonsense creatures that we all want them to be, they would likely assume that any expert witness who would mislead them about his credentials, or about whether he showed up for the forensic tests, would also mislead them about other, more important things. Any seasoned litigator would probably reach that same conclusion. But a few seasoned litigators must also be wondering, by now, whether they shouldn't turn a blind eye and condone a little truth-stretching by their experts, given the judiciary's own readiness to do so.

Thanks to C.E. Petit, our Illinois correspondent, for pointing us to the Findlaw link for the opinion in the Martha Stewart case.


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Fed. R. Evid. 702: If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise, if (1) the testimony is based upon sufficient facts or data, (2) the testimony is the product of reliable principles and methods, and (3) the witness has applied the principles and methods reliably to the facts of the case.