Expanding the Use of Experts in Criminal Cases

In many types of criminal cases, the right expert can be invaluable. Whether it is a forensic accountant in a complex fraud or tax investigation; a medical or billing expert in a healthcare fraud investigation; a forensic psychiatrist for a sex abuse or child pornography case; a computer expert for a computer crimes matter; or a drug or gang expert in a serious drug case, the proper expert retained early in the investigation can assist the client’s criminal defense attorney in his or her efforts to prevent the charges from being filed, or to develop a solid defense to aid in plea negotiations or to prevail at trial.

In many types of investigations, the government employs or hires its own experts to analyze a wide variety of data, information or documents. These government “experts” may be recognized in their fields, or they may be analyzing and opining on evidence in fields in which they are not truly qualified. It is critical in such cases, that the defense attorney have at his disposal the best possible expert in the relevant field of inquiry to conduct their own review and analysis of the evidence and to potentially refute the conclusion of the government expert.

In recent years, there have been notable cases that have demonstrated that government experts have either overreached or provided false reports and testimony. For instance, state drug labs around the country have discovered state laboratory technicians that have failed to conduct drug tests on tens of thousands of drug seizures and simply falsified their reports. Other so-called experts have opined on subjects that do not meet generally accepted scientific standards, including hair and fiber analysis. Often, the testimony by these alleged experts have resulted in convictions based on false or unsound results.

In many other types of situations, the right expert can analyze the evidence and discover the weaknesses or fallacies in the government’s theory of the case. The ability to independently analyze varied and complex financial transactions, computer code, hundreds of emails and attachments, billing records or scientific results can mean the difference between a conviction or acquittal.

Aggressive, experienced defense attorneys use experts as early in the process as possible. The mechanics are fairly straightforward, but important to protect the client’s interests. The law firm retains the expert in an effort to preserve the attorney-client privilege. The client is responsible for the fees and expenses, but the expert communicates with the law firm rather than with the client directly. Since in most cases costs are an issue, the attorney must work within the client’s budget in both deciding which expert to retain and the scope of the work required. In many cases, the expert’s work will provide leverage in plea negotiations by highlighting the weaknesses in the government’s case or presenting alternate theories of the transactions or evidence. In other cases, it may be necessary for the expert to testify at trial. In either case, the expert’s training, experience and reputation all come into play.

Stahl Gasiorowski Criminal Defense Lawyers aggressively defend individuals being investigated or charged with serious federal and state crimes. To contact us to discuss your case, call 908.301.9001 for our NJ office and 212.755.3300 for our NYC office, or email us at rstahl@stahlesq.com.