Career Connection: Building your professional future
Fraud Examiners build solid careers by considering all potential legal
pitfalls, anticipating problems and taking opportunities to educate
others about CFEs’ roles and responsibilities.
For example, we’re
precluded from opining about the legal guilt or innocence of any party
in any of our cases. The CFE Code of Ethics states, “A Certified Fraud
Examiner, in conducting examinations, will obtain evidence or other
documentation to establish a reasonable basis for any opinion rendered.
No opinion shall be expressed regarding the guilt or innocence of any
This is more than just a good idea; it’s the ethical
obligation of every CFE. However, how does this tenet practically apply
to expert witnesses in court?
U.S. legal world has commonly held that a prosecutor can’t use a
criminal defendant’s name in a hypothetical example posed to an expert
because, obviously, the example then wouldn’t be hypothetical. A recent
New Jersey court case has clarified this obligation even farther for the
expert witness. An expert witness’s intimation during a court trial
hypothetical scenario that a defendant was probably guilty resulted in
the reversal of the subject’s conviction.
In State of New Jersey v. Coley
(A-0190-11), the New Jersey appellate court clarified that the
prosecutor and expert witness are precluded from using a term that
clearly points to the defendant as the person referred to in the
hypothetical situation. In this case, law enforcement officers went to
Marcus Coley’s apartment, served him with a search warrant and charged
him with drug possession with intent to distribute after they discovered
crack cocaine, digital scales, glassine baggies and hollow-point
At trial, the Gloucester County prosecutor called a
detective as an expert witness and outlined a hypothetical situation
that nearly mirrored the raid of Coley’s apartment. The prosecutor
didn’t refer to Coley by name, but the prosecutor repeatedly used the
word target in the hypothetical, and other detectives had already told jurors that Coley was the target of the investigation. Indeed, although other people were present at the apartment, officers only arrested Coley.
the prosecutor asked, “Now, could you think [of] an opinion as to why
our hypothetical target in the situation would have possessed all these
items, the rock of crack cocaine, the number of unused baggies, and
digital scales?” The expert witness answered, “Probably to distribute
drugs.” Coley subsequently was found guilty of possession with intent to
distribute and sentenced to 14 years in prison.
Upon appeal, the court stated that the prosecutor impermissibly suggested that Coley was the target
in the hypothetical situation, and the judge mistakenly failed to issue
a corrective instruction to the jury after defense counsel’s objection.
The court reversed Coley’s conviction.
In other cases, courts
have made similar reversals after holding that expert witnesses in
criminal cases may not opine, even indirectly, that the defendants were
guilty of the crimes as charged.
In State of NJ v. Miraballes,
the court observed that the prosecutor used a hypothetical as a
summation of the entire case against the defendant, a 61-year-old Cuban
woman, and then solicited an expert to opine on the credibility of the
state’s case. The “thinly-veiled reference to the defendant as the
‘hypothetical 61-year old Cuban woman’ did nothing to dispel any error,
because it was clear beyond a doubt who that person was,” the court
In each of these cases, the prosecutor erred by
constructing a hypothetical situation that so similarly mirrored the
situation or virtually named the defendant so as to elicit the expert’s
opinion that the defendant was guilty.
during preparation, the CFE expert witness can assist the prosecutor or
defense attorney in constructing a hypothetical situation that will be
more general and wouldn’t result in reversible error. In many cases,
however, that opportunity doesn’t exist, and the expert will have to
answer the question posed — however imperfectly. SO WHAT CAN YOU SAY?
isn’t to say that you may not express a professional opinion as an
expert witness or in a written report. However, you must be careful to
ensure that your words are within ethical boundaries, completely
truthful and based on facts and evidence.
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