¶ 52. {concurring). I concur with the majority opinion because I cannot condone the conduct of an expert who was called to refute the defendant's credibility but then that expert falsified his testimony before the jury. In a case such as this, where it is largely circumstantial and credibility is critical, a jury should be entitled to reach its conclusions based on evidence that is not derived from a witness who fabricates his credentials. Here, a serious question exists as to whether the interests of justice were served.
¶ 53. Even beyond the information known to the circuit court about Dr. Shaibani misrepresenting his affiliation with Temple University, it has been subsequently alleged that Shaibani was not employed at Virginia Tech, never worked for the U.S. Department of Justice, never worked for or contracted with the Federal Bureau of Investigation, never worked for Cone-maugh Memorial Medical Center, and was never officially recognized as the "scientific advisor" for a violent crimes response team in Bedford, Virginia.1 These new allegations, coupled with the existing misrepresenta*58tions by Shaibani presented to the circuit court, lead me to the conclusion that the real controversy was not fully tried and, thus, reversing in the interest of justice is warranted.
¶ 54. I write separately because I respectfully disagree with the majority's conclusion to decide this case on the basis of newly-discovered evidence. I do not believe that the circuit court erroneously exercised its discretion, as the majority concludes. I have concerns over the development of the law and how the majority's decision squares with existing precedent and longstanding jurisprudence. I am concerned that we are not providing clear direction to the users of the courts. My preference would be to remand for a new trial in the interest of justice or to remand to the circuit court so it could consider whether a new trial should be conducted given the new allegations of misrepresentations, whether Shaibani would still qualify as an expert, and the theory of "newly-discovered evidence" advanced by the majority. Accordingly, I respectfully concur.
I. INTEREST OF JUSTICE
¶ 55. I respectfully disagree with the majority's decision to decide this case on the theory of newly-discovered evidence. Instead, this case should be decided pursuant to Wis. Stat. § 751.06, "Discretionary reversal." That section provides this court with unique, discretionary authority to order a new trial when we conclude that the real controversy has not been fully tried or when there is a probable miscarriage of justice. "[T]he court of appeals, like this court, has broad power *59of discretionary reversal." Vollmer v. Luety, 156 Wis. 2d 1, 19, 456 N.W.2d 797 (1990). When the discretionary reversal power is invoked on the grounds that the real controversy has not been fully tried, "it is unnecessary for an appellate court to first conclude that the outcome would be different on retrial." Id. However, under the newly-discovered evidence theory, the majority must, and it does, reach the conclusion that the outcome would likely be different. See majority op., ¶ 49. In light of the evidence presented at trial, I am not so certain.
¶ 56. In this case, Shaibani was called as a witness to prove that Plude was not truthful. Plude described to the police how he found his wife slumped over the toilet with her face in the toilet bowl. He gave at least three different versions of how he found her, but each account included her face being in the toilet. Dr. Shaibani was called as a witness to refute those statements.
¶ 57. Shaibani was an important witness because he assisted the jury in making an inferential step towards guilt. Shaibani was the only expert who tested Plude's statements of how he found Genell, and Shaibani was the only witness who directly attacked Plude's credibility. Simply stated, given the findings from Shaibani's injury mechanism analysis testing, Plude's statements to the police could not be true.
¶ 58. The majority spends much time discussing how Shaibani's testimony takes Dr. Huntington's2 testimony that Genell drowned in the toilet bowl a critical step further.3 I disagree. Either Shaibani or Julius *60Ballanco's4 testimony could serve that purpose. No other witness, however, went to the heart of Plude's credibility like Shaibani. Here, if the jury believed Shaibani, the jury could not believe Plude. Under the facts of this case, because Shaibani's testimony was offered to tarnish the defendant's credibility and Shaibani lied to the jury, the matter was not fully tried. Shaibani's reprehensible misrepresentations lead me to conclude that the real controversy was not fully tried, and it is in the interest of justice that the matter be retried.
II. MAJORITY OPINION
¶ 59. I believe we should reverse in the interest of justice. The majority, on the other hand, reverses on a theory of newly-discovered evidence. This, however, produces five points of concern that preclude me from joining the majority. First, I disagree with how the majority opinion views the theory of the case, both for the State and the defense. Second, Plude never argued the newly-discovered evidence theory set forth by the majority, and thus, the circuit court could not have erroneously exercised its discretion. Third, the newly-discovered evidence theory does not dictate reversal in this case. Fourth, I do not believe the majority explains why this case is different from other cases where an expert lied about his or her credentials. As a result, I believe the majority opinion may be viewed as contrary *61to precedent. I, however, find this case distinguishable from other Wisconsin precedent. Fifth, I fear the majority opinion could be viewed as decreasing the circuit court's role in evaluating expert testimony.
A. Theory of the case
¶ 60. The majority believes that the State's theory of the case was that Plude murdered Genell by poisoning her and then drowned her in the toilet bowl water. See majority op., ¶ 4. The majority opinion thus focuses on Shaibani's testimony as it relates to possible forced drowning. However, the State's theory was not that Plude drowned Genell, but rather, that he caused her death by giving her an overdose. The defense's theory was that she committed suicide by an overdose.5
¶ 61. The majority, in relying on the substance of Shaibani's testimony to conclude that the jury found Plude guilty because he drowned his wife, in my view, misses the point. Shaibani's testimony was only relevant for the purpose of attacking Plude's statements to the police. He was not introduced in support of the theory that Plude drowned his wife because that was not the State's theory of the case. If, as the majority does, we assume that the State's theory was not that which was charged or argued to the jury, but instead was one of forced drowning, then there is other sufficient evidence to support drowning. The jury could have relied on either Shaibani or Ballanco for that determination. Even if the jury disregarded Shaibani's testimony all together, there still would be sufficient evidence upon which to convict. However, what is *62critical here is the fact that Shaibani single-handedly destroyed Plude's credibility by explaining to the jury why Plude's statements to the police could not be true. In a case such as this, the fact that Shaibani lied to the jury creates error.
¶ 62. The jury decided that Plude committed first-degree intentional homicide of his wife Genell. Shaibani's testimony was offered to rebut Plude's three versions of how he found Genell in the bathroom.6 In other words, that testimony was offered to attack Plude's credibility. We know that the theories advanced by the parties related to whether Genell committed suicide by overdose or whether she was a homicide victim who was given a lethal dose of prescription medication. We, however, do not know whether the jury decided that Plude caused the overdose of his soon to be "separated-from" wife as urged by the State, or whether the jury found that he drowned her in the toilet, or whether the jury considered a combination of those acts. The jury did, nonetheless, conclude that Plude was guilty.
¶ 63. Because of Shaibani's testimony, the jury, rather than requiring the State to meet its burden of proof as to each element of the offense charged, may have concluded that since Plude cannot be believed, he must be guilty. However, Shaibani's testimony was relevant only as it related to the truthfulness of Plude's statements to the police, not as it related to a theory of guilt, which was neither forwarded by the State nor defended by Plude. As a result, I must depart from the majority's analysis.
*63B. Erroneous exercise of discretion
¶ 64. We must keep in mind that it is the circuit court that presided over this two-week trial and heard nearly 40 witnesses. The majority, however, concludes that the circuit court erroneously exercised its discretion even though the "newly-discovered evidence" theory relied on by the majority was not presented to the circuit court, and it is not even clearly before this court.7 I would not conclude that the circuit court erroneously exercised its discretion because the theory relied on by the majority today was not squarely before the court, and it never decided the issue. Rather, Plude argued to the circuit court that, in light of Shaibani's misrepresentations, Shaibani was no longer qualified as an expert, he was a fraud on the court, and Plude argued the outdated doctrine of "falsus in uno."8
¶ 65. Specifically, Plude argued to the circuit court that the newly-discovered evidence rendered Shaibani's testimony inadmissible because he was no *64longer qualified as an expert. Plude supported his newly-discovered evidence theory by arguing that as a result of Shaibani's misrepresentation, "Shaibani [was] not a qualified expert." Plude asserted:
[i]n light of the facts surrounding Mr. Shaibani's testimony and his false testimony supplied at trial, the court must grant a new trial.
... It is within the trial court's discretion to determine whether or not a person is qualified as an expert. In re the Commitment of Larry J. Sprosty, 248 Wis. 2d 480, 636 N.W.2d 213 (Wis. [Ct.] App. 2003).
¶ 66. The circuit court, however, specifically concluded that Shaibani, based on his experience, was still a qualified expert and stated, "[h]ere, there is no evidence that Dr. Shaibani's inaccurate testimony concerning his curriculum vitae makes his opinions unreliable. The Court allowed Dr. Shaibani to testify because of his experience in the field, prior work in this area, education and background, and not because he claimed to be a clinical professor at Temple University." In the State of Wisconsin, whether an expert is qualified has always fallen squarely within the discretion of the circuit court.
¶ 67. The circuit court acknowledged the State's stipulation that Shaibani misrepresented his status with Temple University, but the court stated, "[h]ow-ever, there has been little else argued that Dr. Shaibani did not have the scientific, technical, or other knowledge to testify concerning the facts of this case that would assist the trier of fact." The circuit court concluded:
Given Dr. Shaibani's education, training, teaching background, and knowledge, the [circuit] [c]ourt al*65lowed Dr. Shaibani to testify, giving the jury the ability, as it must, to judge the value of and the credibility of the testimony. The defense has not suggested any facts other than the inaccurate curriculum vitae in question that was untrue or misleading to the jury.
¶ 68. The circuit court then concluded that Plude's reliance on Sprosty was misplaced and stated:
Here, there is no evidence that Dr. Shaibani's inaccurate testimony concerning his curriculum vitae makes his opinions unreliable. The [circuit] [c]ourt allowed Dr. Shaibani to testify because his experience in his field, prior work in the area, education and background, and not because he claimed to be a clinical professor at Temple University. No prejudice to the defendant has been shown, and I cannot grant a new ■ trial based only on the one inaccuracy in Dr. Shaibani's curriculum vitae.
(Emphasis added.) The circuit court did not erroneously exercise its discretion in making these findings, given what it knew.
¶ 69. In addition to arguing that Shaibani was not qualified to be an expert, Plude, relying on Johnson v. Johnson9 and on Sprosty, argued that "Shaibani's testimony perpetrated a plain case of fraud upon the court, which in itself requires a new trial."10 Plude asserted that because Shaibani perpetrated fraud upon the court —i.e., he misrepresented his credentials — all of his *66testimony should be discredited. As stated above, the circuit court disagreed and concluded that despite the misrepresentations, Shaibani was still a qualified expert. However, the circuit court, in so ruling, did not know of the subsequent allegations that Shaibani had possibly falsified other qualifications.
¶ 70. Plude also argued to the circuit court that because Shaibani lied about one thing, he should be deemed to have lied about all things — i.e., he argued "falsus in uno." In Plude's post-conviction brief dated March 14, 2005,11 he asserted that the jury's verdict should be set aside because "[njewly discovered evidence shows that the State's sole expert witness, Mr. Shaibani, testified in falsus in uno," i.e., false in one thing, false in all. Plude asserted this doctrine, even though the doctrine is outdated and its use has been highly criticized.12
¶ 71. The majority's decision today, may appear to revive the doctrine of "falsus in uno" — false in one thing, false in all — despite the fact that the doctrine fell out of favor long ago. See Falsus in Uno Wis JI— Criminal 305, Comment (stating that this instruction is not favored); see also Black's Law Dictionary 620 (7th ed. 1999) (citing to John H. Wigmore, A Students' *67Textbook of the Law of Evidence 181 (1935) (stating that the doctrine should be completely discarded)). I do not believe that it is this court's intent to revive the doctrine by its decision today, and I conclude that this doctrine should have no impact in this case.
¶ 72. In sum, I respectfully disagree with the majority's determination that the circuit court erroneously exercised its discretion when considering the arguments. The circuit court should not be required to search for arguments that are not presented, especially when competent counsel represents the defendant. In an oral decision on August 9, 2005, and a written memorialization of that oral decision filed on August 26, 2005, the circuit court properly exercised its discretion when considering the issues before it and the allegations made at that time. At the oral decision, the circuit court stated, "I would, [] note that at times [the] defendant used a shotgun approach for relief. I find only the three arguments addressed by the Court that were fully developed for review. I reject any other arguments not fully developed for review."
¶ 73. Today the majority concludes that the circuit court erroneously exercised its discretion because "[t]he circuit court did not evaluate whether a reasonable probability existed that a different result would be reached at a new trial if the jury knew Shaibani misrepresented his credentials."13 Majority op., ¶¶ 30, 49. However, the circuit court did not consider whether *68a jury would come to a different result had it known Shaibani misrepresented his credentials because Plude never argued that to the circuit court. Thus, I depart from the majority and conclude that the circuit court did not erroneously exercise its discretion.
C. Newly-discovered evidence theory does not dictate reversal in this case
¶ 74. The majority concludes that if Plude knew that Shaibani was misrepresenting his status at Temple University, Plude could have impeached Shaibani and discredited his testimony, which, in the eyes of this court, gives rise to "a reasonable probability that a jury hearing of Shaibani's false testimony under oath would reach a different result." See majority op., ¶¶ 35, 37, 40, 46. However, even assuming that Shaibani was impeached and the jury disregarded everything he had to say, the jury would then have been in a position to weigh the remaining testimony against Plude's defense of how he came to find Genell, slumped over, face in the toilet, and that she committed suicide by overdose. How does the majority conclude that there would have been a different result with respect to the theory of the case advanced by the parties — Plude overdosed Genell? Why does the majority not engage in a sufficiency of the evidence analysis? From the decision today, it is unclear when a court should apply the newly-discovered evidence analysis, a Sprosty analysis, or a sufficiency of the evidence analysis.
¶ 75. In addition, what impact this newly-discovered evidence may have at a new trial calls for *69speculation. Unlike most "newly-discovered evidence," where the new evidence would be introduced at a subsequent trial,14 or go to an element of the offense, there is absolutely no assurance that Shaibani will testify at the new trial or that his misstatements will have any bearing on a new trial. Typically, newly-discovered evidence would have significant impact at a new trial. Here, however, the State could hire a new expert. The State may just conclude that Shaibani's testimony was cumulative and unnecessary. The State may decide it will not call someone who lied under oath. Clearly, the State had no idea that Shaibani presented *70false testimony until after the trial. Thus, the "newly-discovered evidence" here is really stale, impeachment evidence, which is not likely to be introduced at a new trial. The impact of this newly-discovered evidence at a new trial is speculative at best. On the other hand, the impact of Shaibani's testimony at the trial here, where it directly gutted Plude's credibility, is significant and quantifiable. If the jury believed Shaibani's injury mechanism analysis, they could not believe Plude.
¶ 76. Moreover, in order for evidence to qualify as "newly-discovered evidence," it must not be cumulative. To the extent that Shaibani's testimony relates to a likelihood of accidental drowning in the toilet, his testimony is cumulative because another expert witness, Julius Ballanco, essentially testified to the same information. In short, Shaibani's testimony is cumulative to that of Ballanco with respect to taking Dr. Huntington's testimony a step further.15
¶ 77. Specifically, Shaibani was not and is not a necessary trial witness because Ballanco testified at trial that a victim could not drown in a toilet without another person forcing the victim's face into the water. Therefore, even excluding Shaibani's testimony, a reasonable jury could still reach the same conclusion.
¶ 78. Moreover, Shaibani's testimony should be placed in context. The State's case-in-chief consisted of nine days of testimony beginning on December 3, 2002, and continued through three-quarters of the day on December 11, 2002. Shaibani testified on December 11, 2002, and, based on time stamps in the transcript, it likely encompassed less than two hours of testimony; his testimony consisted of approximately 63 pages out *71of approximately 1,479 pages of trial testimony, not excluding discussions outside of the presence of the jury included in the transcripts. Shaibani was one of 35 witnesses that appeared during the State's case-in-chief, let alone the defense case. Shaibani was also briefly called during rebuttal in order to contradict the defense's expert in biomedical engineering, but this consisted of less than 30 pages of trial transcript.
¶ 79. As the court of appeals concluded, "there were multiple other pieces of evidence that would support Plude's conviction, diminishing any likelihood Shaibani's misrepresentation could have affected the jury's judgment."16
*72¶ 80. In many ways, the majority decision today looks like it should undertake a sufficiency of the evidence analysis. Typically, when evaluating evidence as it relates to the ultimate conclusion of guilt, the court will look to see if there is other evidence to support the verdict. Here, the majority determines that Shaibani's testimony furthered the testimony of the State's pathologist, Dr. Huntington, as to the ultimate question of guilt. The majority reasons that if the jury knew of Shaibani's false credentiáls, the jury may not have convicted Plude. However, I am not so certain. Dr. Huntington did testify that it was more likely than not that the fluid in the victim's lungs came from the toilet bowl rather than from pulmonary edema. Majority op., ¶ 20. Shaibani did testify that "his experiments indicated to a reasonable degree of scientific certainty that Genell could not have inhaled toilet bowl water on her own," but rather that it would take 60 pounds of pressure to the back of Genell's head in order to get her face in the water and keep it there. Majority op., ¶ 25. Shaibani also testified that the laws of physics would not allow Genell to keep her face in the water without *73someone else forcing her face into the water. In other words, the testimony supported the notion that without assistance, the laws of physics would pull the unconscious person's head out of the toilet bowl and therefore, prevent drowning. This testimony, however, does not stand alone or unsupported.
¶ 81. If one could conclude that Shaibani's testimony took Dr. Huntington's testimony further and drove the conviction here, one could equally determine that it was the testimony of Ballanco that took Dr. Huntington's testimony further and drove the conviction. The record reveals sufficient evidence on that point. Like Shaibani, Ballanco testified that toilets are designed in such a way that a person cannot drown in a toilet unless someone else forces his or her face into the water.17
¶ 82. When asked whether drowning was a concern for the plumbing industry, Ballanco testified that it was a major concern. Ballanco stated:
*74Yes, drowning is. One of, one of the things that we [are] always evaluating is any time that you have a body of water there is potential for drowning. And one of the concerns with drowning is two fold. Small children, especially babies and also, [] we call the bar lounge outrageous restaurant phenomena where people tend to vomit in the water closet. And we don't want them to go in to vomit and then drown in the water closet if they passed out.
¶ 83. With regard to the particular model of toilet in this case, Ballanco testified that he was familiar with this toilet. He stated, "Yes, that is a Mansfield water closet. Mansfield is based in Ohio. Their chief engineer is a good friend, Burt Preston." Ballanco inspected this particular toilet and testified that this toilet, including the water level, was in compliance with all standards. In short, the toilet was working properly.
¶ 84. When asked whether this "bowl [was] designed to prevent both nose and mouth emersion [], without contortion," Ballanco testified:
It is not specifically designed. It is [a] secondary effect of the design so that the mouth and nose cannot come in contact if someone passes out. It is just the nature of how the bowl came into being. It is something that we look at. But, actually, it was because of other factors that, you know, that you get secondary effects from the primary design factors.
The prosecutor then asked:
Well, let's talk about that. If that person were to go unconscious, lets assume that person is a female between — approximately the age 28, weighed approximately 110 to 140 pounds, five foot eight in height, would it be possible for parts of that person's head or face, okay, to fall into the water and remain in that position unassisted?
*75[DEFENSE COUNSEL]: Objection [as to the unassisted part]....
[THE COURT]: Yes, sustained.
[THE PROSECUTOR]: Having — removing the unassisted part of that hypothetical, could you give us an opinion to a reasonable degree of scientific certainty whether that could occur?
[MR. BALLANCO]: One could, if one passed out they could get their forehead and nose under water.
[THE PROSECUTOR]: Okay.
[MR. BALLANCO]: Not their mouth.
[THE PROSECUTOR]: Not their mouth?
[MR. BALLANCO]: Right.
¶ 85. The prosecutor subsequently asked Bal-lanco whether he had knowledge of "a single case of a person with [] their face suspended in the water of a water closet." Ballanco replied, "None." However, Bal-lanco did testify that there are cases in which someone has drowned in a toilet. He testified:
[T]he typical cases we have are small children, babies falling in and drowning.
Well, it happens when the bowl is not properly protected. And children do strange things. ... They have a small enough body that they can fully submerge themselves. They don't have the shoulder width to block them out....
¶ 86. However, when Ballanco was asked if he was aware of any adult cases of drowning, Ballanco testified *76that he was not aware of any adult drowning cases. The prosecutor then asked Ballanco if he was aware of any adult drowning cases where force was used. Ballanco replied, "Yes." He testified: "[w]ell, unfortunately, there have been instances of somebody's head being held into the water closet and them drowning." The prosecutor then inquired what would be required for someone to drown in this toilet by use of force. Ballanco answered, "if you held the head and put enough force behind, and of course you would have to hold it in place all the way down in the water, you can get the head completely submerged in water and the nose and mouth completely covered." (Emphasis added.)
¶ 87. The prosecutor then asked Ballanco, through a series of questions, whether this particular toilet contained a device known as a "trap." Ballanco replied that this toilet does have a "trap" and he explained:
If you put a mass in the bowl or in any trap, what happens is that you're exerting a force and water being a fluid it will move on both sides. And once you put a mass in there the water will start to flow over the weir of the trap on the opposite side. And that will in effect lower the water level in the trap when the mass is removed.
The prosecutor then showed a crime scene photo of the toilet to Ballanco, which Ballanco had also viewed in preparation for his testimony, and the prosecutor asked if there was anything about this "photograph in relation to water displacement." Ballanco testified:
[W]hat I noticed is, if you look at that photograph, there is a mark in the water or on the tank on the bowl, excuse me, and in the back of the bowl. That would indicate the normal water level. Because what happens is the water leaves that in an unclean bowl, actually starts to form a line. And most people understand that they experience that in their life.
*77Um, what you see on this bowl is the water, itself, in the bowl is, I estimate, approximately a quarter of an inch below that level. So the water level had dropped.
Ballanco then testified to a reasonable degree of scientific certainty that approximately 16 ounces of water had been displaced from the toilet.
¶ 88. Accordingly, regardless of whether the laws of physics will allow someone's head to remain inside the toilet once unconscious, a person still could not drown in a toilet because the toilet design precludes drowning unless force is used. If Shaibani's credentials were discredited at trial, the parties or the court could have asked the jury to disregard his testimony entirely. However, the State still could have secured a conviction, if drowning was its theory based upon Mr. Ballanco's testimony and Dr. Huntington's testimony.
¶ 89. One could easily conclude that Shaibani's testimony regarding forced drowning was not useful at all, given Ballanco's testimony that the toilet bowl design prevents drowning absent another person forcing a victim's face into the water. However, it is Shaibani's testimony regarding injury mechanism analysis that picked apart the credibility of Plude's statement to the police and the jury did not know that Shaibani had lied to them. The relevancy of Shaibani's testimony most directly bears on Plude's credibility, rather than on the theory of conviction, and on that score, it is not cumulative.
D. Precedent governing a deceitful expert
¶ 90. While misrepresenting one's credentials is extremely troubling, decisions from appellate courts in this state and others have not automatically ordered a new trial upon the discovery that an expert falsified his *78or her credentials. If this precedent is to change in this state, we should clearly articulate the rule of law. I point out that this decision may be viewed as contrary to precedent and could create confusion to the lower courts, which must apply the analysis.
¶ 91. I would distinguish this case from other Wisconsin precedent because Shaibani was not called to testify about evidence that established an element of the offense. Rather, he was called to refute the credibility of the statements that Plude gave to the police. How do we know that? The theory of the State's case was based on whether Plude caused Genell to overdose, and the defense's theory was that she overdosed on her own; the fundamental issue was not whether she drowned. The fluid in her lungs was apparently never even tested. Why not? Presumably, it was not tested because the State's theory was not that she drowned, but rather, that she was administered an overdose by Plude.
¶ 92. The sufficiency of the evidence, however, is not discussed by the majority. The majority leaves uncertainty as to when a court should engage in a newly-discovered evidence analysis, instead of a sufficiency of the evidence analysis. When should a court undertake the analysis of Sprosty? We cannot be sure. Instead, the majority relies on a newly-discovered evidence theory, as it relates to a theory not advanced by the parties. Without clearly explaining why, and in so doing, it transcends Shaibani's testimony from that which related to Plude's credibility, to that which dictated a finding of guilt by forced drowning. If the majority concludes that Shaibani's testimony relates to an element of the offense, it ought to also discuss sufficiency of the evidence. To me, it is because Shaibani's testimony was a direct attack of Plude's truthfulness, in this circumstantial case where credibil*79ity was critical, that the sufficiency of the evidence analysis does not save the verdict. Simply stated, unlike in Sprosty, other sufficient evidence as to the elements of the offense do not reinstate the defendant's credibility.
¶ 93. In Sprosty, our court of appeals concluded that even though the State's expert had given inaccurate testimony regarding his job titles and the length of time that he held a particular job, reversal of the commitment order was not required. In re Commitment of Sprosty, 2001 WI App 231, ¶¶ 27-33, 248 Wis. 2d 480, 636 N.W.2d 213. The expert testified about sexually violent persons and whether Sprosty should be placed on supervised release. Id., ¶¶ 10, 28. Sprosty argued that the expert:
(1) lied about his credentials, which was contrary to the ethical standards of the American Psychological Association, and had been terminated from his current position because of it; (2) lied about the circumstances surrounding his termination from a former job; (3) altered two Wis. Stat. ch. 980 reexamination reports (unrelated to Sprosty) without knowledge of the original authors; and (4) made an unauthorized deposit of state money.
Id., ¶ 31.
¶ 94. Nonetheless, the court of appeals concluded that the expert was still qualified and that his testimony was not incredible as a matter of law. Id., ¶ 32. The court reasoned that the misrepresentations did not undermine the expert's basic qualifications to give an expert opinion, and moreover, his opinion was corroborated by another expert. Id. Accordingly, the commitment order was upheld. In other words, even though the expert's credentials were inaccurate, that was not enough to require a new trial in Sprosty.
*80¶ 95. Similarly, in Ricco v. Riva, the court of appeals concluded that even though the expert misrepresented his credentials, his testimony was not incredible as a matter of law. Ricco v. Riva, 2003 WI App 182, ¶¶ 13-17, 266 Wis. 2d 696, 669 N.W.2d 193. The expert improperly referred to himself as a "Master Home Inspector" and that he was a graduate of the Milwaukee School of Engineering. Id., ¶ 5. The expert testimony was used to establish that the homeowners knew or should have known that there was a defect. Id., ¶ 7. The court stated, while the expert's "claims regarding some of his credentials are suspect and likely untrue," he was still a qualified expert because he was a " 'licensed home and building inspector,' who has 'inspected thousands of homes in the Milwaukee area,' and [] he is 'familiar with construction standards, building defects, and problems relating to home construction.'" Id., ¶ 16.
¶ 96. The court of appeals concluded that "[i]f the more aggravated conduct in Sprosty did not warrant striking the expert witness's testimony, it surely follows that the conduct in this case does not warrant that sanction." Id. The court of appeals reasoned:
We share the trial court's concerns about [expert] Wantz playing fast and loose with his qualifications. But we part ways with the trial court on its holding that Wantz's specious claims about his credentials render his testimony incredible as a matter of law. In order to make that statement, we would have to hold that Wantz's testimony would be in conflict with the uniform course of nature or with fully established or conceded facts. Wantz's inflated estimation of himself and his credentials, while obnoxious to us, does not satisfy this test. The weight and credibility to be given to the opinions of expert witnesses are uniquely within the province of the fact finder. Here, as in Sprosty, Wantz's misleading testimony as to certain of his quali*81fications does not render his opinion as to defects in the Riccos' property incredible as a matter of law.
Id., ¶ 17 (citations omitted). Again, despite an expert making untrue representations as to his qualifications, the court of appeals did not reverse.
¶ 97. Precedent outside of Wisconsin has been consistent with Sprosty and Ricco.18 Accordingly, appellate courts in this state and others, as well as federal courts, have not automatically reversed convictions or orders because an expert witness misrepresents his or her credentials, especially when the expert's testimony is corroborated by other evidence. If this precedent is to change, this court should clearly articulate the new rule of law.
*82E. Circuit court's role in evaluating expert testimony
¶ 98. The majority's decision today may seem to call into question the circuit court's role in evaluating expert testimony. The majority opinion essentially concludes that Shaibani cannot be deemed an expert— despite the fact that the circuit court decided that he still was an expert. In this state, circuit court judges have always been vested with great discretion in determining the admissibility of expert testimony.19 If we are adopting a standard more consistent with Daubert,20 *83which focuses on the reliability of an expert, instead of the circuit court's gatekeeper function in determining relevancy, we should so specifically state. I write to point out that the majority's decision may appear to diminish a circuit court judge's discretionary authority to decide the admissibility of expert testimony.
III. CONCLUSION
¶ 99. An expert who misrepresents his or her credentials is reprehensible, and I do not condone such behavior. This concern is particularly valid when that expert's purpose is to defeat the credibility of a defendant in a circumstantial case wherein credibility is critical. If Shaibani had not lied, this case would not be on review at the supreme court and justice would not be delayed or denied. Here, the majority points out that Plude may not have received a fair trial because a critical witness lied. I am not so convinced that this witness was critical to any element of the offense, but once he was introduced as a witness to attack Plude's credibility, his lies became critical.
¶ 100. Fairness is fundamental to our system of justice. While I concur with this court's result, I do so pointing out that this decision potentially conflicts with precedent and longstanding jurisprudence. I do not conclude that the circuit court erroneously exercised its discretion; rather, it applied the law to the known facts and the arguments. I am concerned that the majority decision convolutes the distinction between an expert who testifies about an element of the offense versus an expert who is called to refute the defendant's credibility. The decision today does not provide clear direction as to how a court should analyze this issue in the future. Clearly the misrepresentation of an expert's credentials is extremely troubling, but decisions from appellate *84courts in this state and others have not automatically reversed a conviction upon the discovery that an expert falsified his or her credentials — even if that witness was important to the trial and especially when that testimony is corroborated by other evidence.
¶ 101. While I join in the decision today because of the egregious behavior of this expert, who was directly called to rebut the credibility of the defendant, I point out that the majority opinion may create uncertainty in its application.
¶ 102. Accordingly, I respectfully concur.
Plude's counsel sent a letter to the Wisconsin Department of Justice (DOJ) in January 2006 alleging these facts. The letter *58and the DOJ's response is found in the appendix of Plude's reply brief, which may be obtained at the Wisconsin State Law Library, Madison, Wisconsin.
Dr. Huntington testified as the State's pathologist.
If we are to weigh the testimony that relates to the elements of the offense, we would typically be evaluating the sufficiency of the evidence. Here, in my view, when considering the sufficiency of the evidence as to the ultimate question of *60guilt, there was sufficient evidence. I depart from the majority's focus on the idea that Shaibani took Dr. Huntington's testimony further as to the theory of involuntary drowning because I believe that analysis comes dangerously close to a sufficiency of the evidence determination.
Julius Ballanco testified as the State's consulting engineer.
To ascertain the theories of the case, I rely primarily on the criminal complaint, opening statements, and closing.arguments.
The circuit court concluded that Shaibani was utilized by the State "to contradict the defendant's inquest testimony that [Plude] found [the victim] with her face suspended in the water of the toilet bowl, suggesting death by suicide."
Plude does not make the argument that the majority relies on — neither to the circuit court nor to this court. In fact, Plude does not really assert a newly-discovered evidence theory to this court. Rather, Plude argues that this court should find a constitutional violation under Giglio v. United States, 405 U.S. 150 (1972); however, this court concludes no due process violation has occurred. Plude also argues that this court should adopt the Daubert standard, but this is not addressed by the majority.
Falsus in uno doctrine:
" '[T]here is an old maxim 'falsus in uno, falsus in omnibus' (false in one thing, false in all), which is often much overemphasized by counsel, though it is recognized by many courts in their charges to the jury. But this is only primitive psychology, and should be completely discarded.'" John H. Wigmore, A Students' Textbook of the Law of Evidence 181 (1935).
Black's Law Dictionary 620 (7th ed. 1999).
Johnson v. Johnson, 157 Wis. 2d 490, 497-98, 460 N.W.2d 166 (Ct. App. 1990).
Plude argued fraud upon the court based upon what he asserted as (1) the State being constructively aware that Shaibani would give "expert testimony about something he really did not know about"; (2) the court relied on Shaibani's title to qualify him; and (3) the court relied upon Shaibani's testimony because no comparable witness existed.
He asserted three reasons to set aside the verdict, but this court has decided this case based on a newly-discovered evidence theory. Plude also alleged a discovery violation, and he alleged that when the circuit court ruled that the cause of death was an overdose, it ruled as a matter of law that the State failed to carry its burden.
See Falsus in Uno Wis JI — Criminal 305, which states "USE OF THIS INSTRUCTION IS NOT FAVORED." See id. Comment (stating that "this instruction should not be routinely given" and is only appropriate where there is a sufficient evidentiary basis to show "there was willful false swearing").
It should be noted that generally in a case where a defendant was denied an opportunity to impeach a witness because the impeaching information was unknown at the time of trial, the witness in question is likely going to testify at the retrial. Thus, the defendant will have an opportunity to impeach that witness and the jury can properly consider the witness's testimony and the impeaching information. However, *68in the case at hand, Shaibani likely will not even testify at a subsequent trial because his testimony was unnecessary in light of Ballanco's testimony.
See, e.g., State v. Clarke, 36 Wis. 2d 263, 279, 153 N.W.2d 61 (1967) (newly discovered testimony from a janitor that defendant was not the man he saw at the scene not sufficient to award a new trial because no reason to believe that the jury would have accorded more weight to janitor's testimony than that of the other eye witnesses); State v. Chabonian, 50 Wis. 2d 574, 584-85, 185 N.W.2d 289 (1971) (newly discovered evidence of the presence of an ornament in defendant's store, which would disprove his testimony that he never saw the missing ornament, not enough to warrant a new trial because a different result upon retrial not likely); State v. Boyce, 75 Wis. 2d 452, 457-63, 249 N.W.2d 758 (1977) (in theft by fraud prosecution, court did not abuse its discretion because the court concluded that expert testimony regarding handwriting analysis would not change the outcome of the trial); State v. Bembenek, 140 Wis. 2d 248, 251-58, 409 N.W.2d 432 (Ct. App. 1987) (polygraph examination that showed the defendant did not murder the victim would not be admissible at trial, so it does not constitute "newly discovered evidence" and jail-house confession also not admissible at trial so not type of "newly discovered evidence" that warrants a new trial); State v. Eckert, 203 Wis. 2d 497, 515-17, 553 N.W.2d 539 (Ct. App. 1996) (newly discovered eyewitness testimony as to defendant's whereabouts during homicide does not warrant a new trial because unlikely that it would lead to a different result).
The State concedes that Dr. Shaibani is not cumulative. However, the State — in my view — inappropriately concedes that the newly-discovered evidence in this case was not cumulative.
The court of appeals wrote:
For example, Plude gave varying descriptions of the position in which he found Genell's body. Genell had an internal bruise on her neck, sustained while she was still alive, that could not he explained by CPR but was consistent with her neck being forced against the toilet rim.
Moreover, a "consulting engineer" who specialized in plumbing testified that the particular toilet in question is designed to prevent accidental drowning and that he knew of no case where an adult drowned in a toilet bowl absent force. He also estimated the volume of water displaced from the howl. Because it contained vomit, it was evident the toilet had not been flushed, but the approximate one pint of displaced water was not explained by vomiting — something more forceful had to have caused the displacement. [State's] expert testified that, based on Plude's first version of how he found Genell, she could not have had her mouth and nose in the water.
Genell had planned to have her mother pick her up on the day of her death and was going to return with her mother to Minnesota. From there, Genell had planned to move to Texas. Her coworkers testified she was looking forward to a new life and had been secretly saving money for the move.
Plude exhibited unusual behavior the day of Genell's death. He evidently said to her, "I told you not to leave me." He then *72checked with her supervisor about her last paycheck and insurance policy and later insisted that Genell be cremated immediately.
The crime scene was also quite clean despite approximately forty capsules of Fioricet having been opened. Genell's thumbprint was on only one capsule and the pill bottle. Plude's fingerprints were nowhere, despite his having used the Fioricet before.
Further, the computer searches that Plude claims are exculpatory are only minimally so. Whoever performed the search on Genell's computer only examined the first page of various results — no page with dosing information was ever displayed on the computer.
State v. Plude, No. 2005AP2311-CR, unpublished slip op., ¶¶ 46-51 (Wis. Ct. App. Mar. 6, 2007).
Julius Ballanco graduated from Stevens Institute of Technology with a degree in mechanical engineering fluid flow heat and power. He is a registered professional engineer in six states, holds a master plumbers license, teaches training programs across the country regarding codes and standards, and teaches plumbing engineering basics and advance plumbing engineering at Howlin Washington College. Mr. Ballanco participates in the design and development of toilets, has conducted extensive research regarding plumbing fixtures and safety of toilets, and serves on a number of committees such as those charged with developing new standards for toilets, regulating water quality, and regulating plastic pipes and fittings used in plumbing. In addition, Mr. Ballanco has been a guest speaker at the world plumbing conference, publishes columns every month for "PM Magazine," (plumbing and mechanical) and "PM Engineer" and has written seven books including "Ballanco on Plumbing."
State v. Glouser, 226 N.W.2d 328, 331-32 (Neb. 1975) (concluding that the newly discovered evidence that the expert lied about his degree and training was not sufficient to establish that a different result would have occurred if the expert could have been discredited; the expert was still a qualified expert); Stevenson v. State, 473 A.2d 450, 451, 453 (Md. 1984) (concluding that even though newly discovered evidence established that the expert lied about graduating from the Illinois School of Technology, his false testimony was not material to the outcome of the case because the evidence of guilt was overwhelming and thus the conviction was upheld); People v. Yoli, 541 N.Y.S.2d 609 (A.D.2d 1989) (concluding that even though newly discovered evidence established that the expert lied about his credentials in other trials, a new trial was not warranted because the testimony was cumulative, would have only impeached the credibility of the witness, and he did not falsify his credentials in this case); People v. Irvin, 580 N.Y.S.2d 388, 389-90 (A.D.2d 1992) (concluding that no reason to vacate judgment even though the expert, who linked the saliva and semen to the defendant, lied about his educational background; there was overwhelming evidence of the defendant's guilt and the forensic evidence was merely cumulative and inconsequential); Correll v. State, 698 So. 2d 522, 525 (Fla. 1997) (newly discovered evidence that blood *82spatter expert misstated her credentials was purely collateral because even if her credentials were diminished, she still would have qualified as an expert); People v. Drake, 684 N.Y.S.2d 102 (A.D.4th 1998) (concluding that even though newly discovered evidence established that the expert lied about his credentials, there is no reasonable probability that the verdict would have been different had the evidence been available to the defendant and used to impeach the expert); Howard v. State, 945 So. 2d 326, 370-71 (Miss. 2006) (concluding no reasonable likelihood that the false statements made by the expert affected the judgment of the jury because the statements concerned the expert's background and competence as an expert and were not to his ultimate conclusions that the defendant's dental molds matched the bite marks on the victim); United States v. Price, 357 F. Supp. 2d 63, 68-69 (D.D.C. 2004) (concluding that even though the detective lied when stated he was a board certified pharmacist, the § 2255 motion was denied because his testimony was based on his experience with the street narcotics trade rather than experience potentially gained as a pharmacist).
For a thorough treatment of expert testimony in the state of Wisconsin and a consideration of the Daubert standard, see 7 Daniel D. Blinka, Wisconsin Evidence §§ 702.1-702.4 (West Supp. 2007); id. at § 702.3 (discussing the Daubert standard); see also Daniel D. Blinka, Expert Testimony and the Relevancy Rule in the Age of Daubert, 90 Marq. L. Rev. 173 (2006).
Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579, (1993).