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Prosecutors, Ethics, and Expert Witnesses

46 Pages Posted: 23 Jan 2008  

Paul C. Giannelli

Case Western Reserve University School of Law

Kevin C. McMunigal

Case Western Reserve University School of Law

Abstract

Commentators who have examined the DNA exonerations have noted the disturbing role that prosecutors have played in these wrongful convictions. Another significant contributor to these miscarriages of justice is the misuse of expert testimony, a third of the cases according to some sources. This Article examines the intersection of these two factors - the prosecutor's role in using and presenting expert testimony.

Prosecutorial misconduct may occur during most stages of a trial, beginning with the selection of witnesses, including the improper "shopping" for experts. Additional abuses occur when prosecutors fail to abide by rules governing the pretrial disclosure of scientific evidence - for example, late disclosure, omitting information from laboratory reports, declining to have a report prepared, and failing to disclose exculpatory evidence. Finally, there are numerous ways to present expert testimony in a misleading manner.

Keywords: Erroneous convictions, prosecutors, ethics, expert witnesses, prosecutorial misbehavior, tainted or fraudulent science, laboratory report omissions, delayed disclosure, "shopping" for an expert

JEL Classification: K10, K14

Suggested Citation

Giannelli, Paul C. and McMunigal, Kevin C., Prosecutors, Ethics, and Expert Witnesses. Case Legal Studies Research Paper No. 08-04; Fordham Law Review, Vol. 76, 2007. Available at SSRN: https://ssrn.com/abstract=1084044

Paul Giannelli (Contact Author)

Case Western Reserve University School of Law ( email )

11075 East Boulevard
Cleveland, OH 44106-7148
United States
216-368-2098 (Phone)
216-368-2086 (Fax)

Kevin C. McMunigal

Case Western Reserve University School of Law ( email )

11075 East Boulevard
Cleveland, OH 44106-7148
United States
2163683613 (Phone)
2163682086 (Fax)

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