Provide an expert opinion on gang identification, the relevance of gang threats, gang motivation, and gang rivalries.
Learn important "do's" and "don'ts“.
Why does the court need experts?
What makes an expert?
How to become an expert witness.
How to provide an expert opinion.
Do’s and Don’t’s
They go on thinking that their legal instinct and their common sense supplies them with all that is needed and somewhat more . . .
lawyers judges juries
Yes – if the average Juror (or Judge) does not have the necessary experience and knowledge
(AK/NV) Expert testimony is admissible to show
common characteristics of gang members
rivalries between specific street gangs
common practices of street gangs and members
customs and behavior of street gangs and members
terminology used by street gang members
codes of conduct of street gangs
types of crimes/conduct likely to be committed
Frye v. United States – 1923
Federal Rules of Evidence – 1975+
Daubert v. Merrell Dow – 1993
General Electric Co. v. Joiner - 1997
Kumho Tire v. Carmichael - 1999
Counsel for defendant offered an expert witness to testify to the result of a deception test (systolic blood pressure) made upon defendant.
While courts will go a long way in admitting expert testimony deduced from a well-recognized scientific principle or discovery, the (foundation) must be sufficiently established to have gained general acceptance in the particular field in which it belongs.
This test had not yet gained such standing and scientific recognition as would justify the courts in admitting expert testimony deduced from the discovery, development, and experiments thus far made.
Rule 702. Testimony by Experts
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.
Rule 703. Bases of Opinion Testimony by Experts
The facts or data in the particular case upon which an expert bases an opinion or inference may be those perceived by or made known to the expert at or before the hearing.
If of a type reasonably relied upon by experts in the particular field in forming opinions or inferences upon the subject, the facts or data need not be admissible in evidence in order for the opinion or inference to be admitted.
Facts or data that are otherwise inadmissible shall not be disclosed to the jury by the proponent of the opinion or inference unless the court determines that their probative value in assisting the jury to evaluate the expert's opinion substantially outweighs their prejudicial effect.
Rule 706. Court Appointed Experts
The court may . . . enter an order to show cause why expert witnesses should not be appointed, and may request the parties to submit nominations. The court may appoint any expert witnesses agreed upon by the parties, and may appoint expert witnesses of its own selection. An expert witness shall not be appointed by the court unless the witness consents to act. . . . The witness shall be subject to cross-examination by each party, including a party calling the witness.
Expert witnesses so appointed are entitled to reasonable compensation in whatever sum the court may allow. . . .
(c) Disclosure of appointment.
In the exercise of its discretion, the court may authorize disclosure to the jury of the fact that the court appointed the expert witness.
(d) Parties' experts of own selection.
Nothing in this rule limits the parties in calling expert witnesses of their own selection.
The primary issue presented was whether the adoption of FRE 702 eliminated the general acceptance test of Frye and whether, if Frye remained valid, Rule 702 required that expert scientific testimony undergo peer review to be admissible in evidence.
The majority, articulated a two-part test:
the trial judge must ensure that any and all testimony or evidence admitted is not only relevant , but reliable .
there must be a sufficient "fit" between the testimony and the facts of the case so that the testimony will assist the trier in finding the facts.
Expert evidence based on otherwise inadmissible hearsay may be admitted pursuant to Rule 703 only if the underlying facts or data are of a type "reasonably relied upon by experts in the field in generating inferences or opinions upon the subject."
Rule 706 authorizes the court to appoint an expert to assist with the case.
The court may exclude evidence under Rule 403 "if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury."
Not clear whether this applies to non-scientific expert testimony . . .
The district courts generally followed three different formulas in applying Daubert:
some have interpreted the Daubert decision narrowly and applied it only to scientific evidence (2 nd & 9 th );
others have applied the decision broadly and used the Daubert criteria for judging the admissibility of all expert testimony (7 th and 8 th );
still others have taken a middle ground, assuming a Daubert-like duty to judge the admissibility of all expert testimony but using different criteria depending on the type of expert .
States accepting Daubert: States sticking with Frye: States with their own tests, or typically a Frye-plus test: Connecticut Indiana Kentucky Louisiana Massachusetts Missouri New Mexico Oklahoma South Dakota Texas West Virginia Alaska Arizona California Colorado Florida Illinois Kansas Maryland Michigan Nebraska New York Pennsylvania Washington Arkansas Delaware Georgia Iowa Military Minnesota Montana North Carolina Oregon Utah Vermont Wyoming
The court of appeals must apply an abuse-of-discretion standard when it reviews the trial court’s decision to admit or exclude expert testimony.
Nothing in either Daubert or the FRE requires a district court to admit opinion evidence which is connected to existing data only by the ipse dixit of the expert.
ipse dixit is Latin for " he himself said it ." The term labels something that is asserted but unproved .
1. The Daubert factors may apply to the testimony of engineers and other experts who are not scientists. (a) The Daubert “gatekeeping” obligation applies not only to “scientific” testimony, but to all expert testimony according to FRE Rule 702. (b) A trial judge determining the admissibility of an (engineering) expert’s testimony may consider one or more of the specific Daubert factors . . . The Daubert factors do not constitute a definitive checklist or test and should be applied with flexibility. Daubert applies to expert testimony that might be characterized as based not upon "scientific" knowledge, but rather upon "technical" or "other specialized" knowledge."
The Daubert court provided a non-exclusive checklist for trial courts to use in assessing the reliability of scientific expert testimony. The specific factors are:
whether the expert's technique or theory can be or has been tested - challenged in some objective sense, or whether it is simply a subjective, conclusory approach that cannot reasonably be assessed for reliability;
whether the technique or theory has been subject to peer review and publication;
the known or potential rate of error of the technique or theory when applied;
the existence and maintenance of standards and controls; and
whether the technique or theory has been generally accepted in the particular community.
The Court in Kumho held that these factors might also be applicable in assessing the reliability of nonscientific expert testimony, depending upon ''the particular circumstances of the particular case at issue.''
In Daubert the Court charged trial judges with the responsibility of acting as gatekeepers to exclude unreliable expert testimony.
The Court in Kumho clarified that this gatekeeper function applies to all expert testimony, not just testimony based in science.
The 2000 amendment of Rule 702 affirms the trial court's role as gatekeeper and provides some general standards that the trial court must use to assess the reliability and helpfulness of proffered expert testimony, including those in Rule 104.
The Rule as amended provides that all types of expert testimony present questions of admissibility for the trial court in deciding whether the evidence is reliable and helpful. Consequently, the admissibility of all expert testimony is governed by the principles of Rule 104(a).
(a) Questions of admissibility generally.
Questions concerning the qualification of a person to be a witness, the existence of a privilege, or the admissibility of evidence shall be determined by the court. In making its determination it is not bound by the rules of evidence except those with respect to privileges.
(b) Relevancy conditioned on fact.
When the relevancy of evidence depends upon the fulfillment of a condition of fact, the court shall admit it upon the introduction of evidence sufficient to support a finding of the fulfillment of the condition.
(c) Hearing of jury.
. . .Hearings on (other) preliminary matters shall be out of the hearing of the jury when the interests of justice require, or when an accused is a witness and so requests.
(d) Testimony by accused.
(e) Weight and credibility.
This rule does not limit the right of a party to introduce before the jury evidence relevant to weight or credibility.
Experience as an Expert?
Passing a Standardized Test?
Recognition by Academic Institution?
Recognition by a Professional Organization?
Basic gang definitions
Historical gang information
Gang culture, ideology and typology
Gang indicators and trends
Gang communication methods and symbols
JurisPro Expert Witness Directory (Gangs)
“ These experts have indicated a willingness to consult on legal matters, and/or provide expert witness testimony on Gangs issues.”
Expert Level Training Program = completed 72 hours of prior certification with NGCRC.
First level - 8-hour course of instruction
concludes with 50 question test
must pass with 80%
Issue certification as a Basic Gang Specialist .
Not as Gang Experts because outside of the courts.
Used by Florida, New York, Virginia, TN and Maryland
Developing (2008) the Intermediate (2-day) and Advanced (3-day) classes.
Establishing at the National level (NAGIA) in early 2008.
Provide a foundation for qualification to answer specific questions based on:
The trial court decides whether:
the qualifications relate to the subject matter
the expert’s knowledge can assist the jurors in deciding issues
Is there a consensus in the field regarding the expert’s theory?
The court reviews the underlying model and rationale, and the reasonableness of the logic by which the opinion was reached on this matter
Focus should not be on the conclusions, but on the process, to avoid speculation
The trial judge must ensure that any and all testimony or evidence relevant and reliable.
There must be a sufficient "fit" between the testimony and the facts of the case so the testimony will assist the trier in finding facts.
Justice Blackmun explained that “ absent an acceptable showing of such a nexus, evidence on the phases of the moon indicating that it was full on a certain night could not be received to show that a particular individual was behaving irrationally on that evening. ”
Potential drawbacks of using experts
After a six-week trial, a jury acquitted Abbey of first-degree murder.
Abbey had a blue teardrop tattoo inscribed under his right eye after the killing, according to a gang specialist.
In excluding the expert evidence, the judge said the tattoo was a "scarlet letter" that could have a "prejudicial effect" on the trial.
"I am erring on the side of not letting it in, because I'm terrified if I do, I will, after four months of good hard work ... have a new trial on this case," he said, referring to the prospect of an appeal.
How can we expect jurors to decide between experts when the jurors’ ignorance is the premise for allowing the expert to testify in the first place?
Learned Hand, 1901
A COP IN EXPERT CLOTHING
THE EXPERT FROM WITHIN – A GANG MEMBER
THE UNIVERSITY PROFESSOR
Check out Gang Expert Qualifications
Bias – only testifies for the government?
Formal training – where does it come from- other cops?
Articles – Does the expert read? Write?
What does the gang “expert” rely upon to formulate opinion?
Ask for everything about the “expert.”
Records relating to formal training
Reports, publications, classes
Documents relied upon to establish existence of gang, establish client is a GANG member, pattern of conduct; predicate acts (state or federal), establishing activity/organization of gang (Reports, FI cards, self-admission)
Police officers may be hesitant to testify because they have never been qualified as an expert
The motives for a gang crime can include payback and rivalries.
Drug sales, weapons transactions and extortion can all be at the root of violent gang crimes, all of which are permissible subject matter for a gang expert.
A gang expert can elaborate on the type of street intimidation the defendant’s gang employs.
An expert is permitted to explain that in the gang culture, loyalty is preeminent. Indeed, gang culture dictates that fellow members will assist, even if it means providing perjurious testimony.
The expert chosen must have an intimate and working personal knowledge of the defendant’s gang.
Insubstantial and passing knowledge of a gang gleaned from sources other than personal contact with its members will not impress the jury.
It is less important that the gang expert know the defendant.
The defendant’s affiliation with the gang is often borne out by objective evidence such as tattoos, field identification cards revealing associations, and self-admissions to other officers.
It is helpful if the expert knows not only the gang in general, but the defendant himself. There is no prohibition against using multiple experts—one who is intimately familiar with the gang, and another who knows the defendant personally.
As soon as the expert takes the witness stand, the jury will begin to make personal judgments to begin forming an opinion and assigning credibility.
If the expert appears tentative and unsure, the jury will notice.
If the expert is brash and presumptuous, that will show as well.
Strike a balance between confidence and modesty to enhance credibility and persuasion.
Keep track of and provide a summary of
Contacts with gang members in jail facilities and on the streets
Executions of search warrants on gang members’ homes and cars
Intelligence gathering with other officers
Sharing of gang information with other agencies
Number of years worked in the area and the number of times qualified as an expert in the past
Know the defendant’s gang’s rivalries, history and structure.
Know the meaning of tattoos, interpretation of graffiti, gang slang and gang monikers.
Understand and explain the gang’s criminal tactics, culture, and habits.
Remember, you are giving opinions. There are no “wrong” answers.
Render an opinion, based on the facts presented by the prosecutor, as to whether the crime committed benefited or promoted a criminal street gang.
Otherwise inadmissible evidence—hearsay, for instance—can be the proper basis for an expert’s opinion.
Experts can base their opinions on the defendant’s statements, other gangsters’ statements, review of graffiti or photographs of graffiti, conversations with other police officers, review of prior police reports, and centralized computer database records.
Anything upon which the gang expert relies is subject to discovery. Gang intelligence files may become discoverable if you do not track the original source of the information.
If internal intelligence files are turned over to the defense, ongoing investigations could very well be compromised.
Dr. Lewis Yablonsky
The structure of gangs and the roles of youths in violent gangs
The cultural rules and regulations required for participating in a gang
Gangs vary with regard to their degree of organization.
Some gangs are very cohesive, closely-knit and well organized.
Gangs that fit the model of a near-group are very loosely structured, and membership is unclear.
This factor of gang organization is significant in a criminal trial, since a defendant may be a core member of a gang or on the periphery depending on the degree of cohesiveness of the relevant gang.
Another factor to be considered in a trial is the role that the participants play in the gang.
4 basic types of gang roles:
OGs/Veteranos - longtime core gangsters dedicated to the gang;
Gs - gangsters who comprise the general troops in the gang;
Wannabees - usually young interns and aspiring gangsters; and
Gangsta-groupies - a relatively new category of youths who do not participate in gang activity but gravitate to and apparently enjoy hanging-out with gangsters out of their own ego needs.
too often caught in the net of a violent gang incident, identified as co-conspirators.
All gangsters are motivated to present themselves as tough, super-macho Individuals.
Being disrespected is often the precipitator of gang violence.
Implying that a gangster has feminine characteristics is sufficient grounds in the gang culture for a violent--even homicidal retaliation.
The disrespectful epithets used in a violent gang incident are often significant factors in determining motives in a criminal case.
Gang violence, including drive-by shootings, are not necessarily premeditated acts. They are, often spontaneous acts, that do not constitute premeditated violence.
Sometimes an aspiring gangster will commit a bizarre spontaneous violent act for the purpose of acquiring his credentials or status.
This behavior is not a premeditated or rational act of violence, and to some extent mitigates the culpability of an offender.
In cases involving a gang homicide, they are more likely to call for a charge of 2nd degree murder rather than 1st degree murder.
A myth about gang culture is that gangsters are down for each other, never snitch on another, and are obligated to watch each others back for protection.
Gangsters are not necessarily family and will inform or give-up a homie when it serves their self interest. Gangsters are often very willing to snitch in self-defense.
This issue can be a significant factor in acquiring information to aid the judicial process.
Most gangsters, when interviewed one-on-one, will inform and reveal information vital to the just resolution of a criminal case.
Speak plain English in court, not slang or cop-speak
Provide analysis of the relevant facts, as appropriate
Back up your opinion with specifics & code sections
Preserve an unimpeachable reputation
Constantly gather information
know who the gang is
know how, where and why the specific gang operates
know how gangs in general operate, alliances and rivalries
know why someone is an associate or member
know how the gang benefits from what the gang has done
Show bias against the defendant or attorney(s)
Argue with a defense attorney
Guess and act like it’s factual
Stretch your testimony or advocate for client
Allow conflicts of interest
Learn a few phrases from other experts & simply repeat them.
Testify in general about drug distribution if qualified as “lay information” acquired through observation.
1 st Circuit, US v. Ayala-Pizarro 2005
Testify regarding your (subjective) conclusion regarding a wiretapped conversation provided you do not interpret the message, especially when elicited by defense on cross-examination.
1st Circuit, US v. Lizardo, 2006.
Testify regarding the meaning of coded language, when you have training and experience with the language.
11 th Circuit, US v. Garcia/Nunez, 2006
Testify regarding the business of drug trafficking to help jurors understand, when you have knowledge, skill, training, experience or education on that topic.
8 th Circuit, US v. Robertson, 2004.
Interpret the meaning of wiretapped phone calls (that you were not present for) to the jury if not sworn as an expert witness.
2 nd Circuit, US v. Grinage, 2005.
A good witness will usually trump an expert
Experts have experience in the field, training, or education and an opinion they can support, not necessarily experience as an expert
Experts are partial to the facts, not the client
Experts guard their integrity & credibility
Experienced experts become professionals
The judge is responsible for deciding, by a preponderance of the evidence, whether the witness is an expert.
1st Circuit: FORENSICS EXPERIENCE IS SUFFICIENT FOR TRIAL. (2006, July). Crime Control Digest, 40(28), 7.
1st Circuit: OFFICER CAN GIVE 'LAY' VERSION OF DRUG DEAL. (2005, September). Crime Control Digest, 39(35), 5.
8th Circuit: CIRCUMSTANCES POINT TO DRUG CONSPIRACY. (2006, May). Narcotics Enforcement & Prevention Digest, 12(7), 6.
8th Circuit: EXPERT TESTIMONY IS VALID FOR BACKGROUND. (2004, November). Narcotics Enforcement & Prevention Digest, 10(16), 5.
9th Circuit: AGENCY RULES CAN'T BAR ACCESS TO WITNESS. (2006, July). Narcotics Enforcement & Prevention Digest, 12(10), 6-7.
Edward K Cheng (2006). SAME OLD, SAME OLD: SCIENTIFIC EVIDENCE PAST AND PRESENT. Michigan Law Review, 104(6), 1387-1402.
Shirley A Dobbin, Sophia I Gatowski, Rebecca J Eyre, Veronica B Dahir, et al. (2007). FEDERAL AND STATE TRIAL JUDGES ON THE PROFFER AND PRESENTATION OF EXPERT EVIDENCE*. Justice System Journal, 28(1), 1-VIII.
Jacqueline McMurtrie (2005). THE ROLE OF THE SOCIAL SCIENCES IN PREVENTING WRONGFUL CONVICTIONS. The American Criminal Law Review, 42(4), 1271-1287.
Craig S Neckers, Matthew L Wikander. (2006). Daubert and the Soft Sciences: Can a Forensic Economist Ever Make It Past the Gatekeeper?[dagger]. FDCC Quarterly, 57(1), 27-49.
Irving Prager, Kevin S Marshall. (2005). Examination of Prior Expert Qualification and/or Disqualification-(Questionable Questions Under the Rules of Evidence). The Review of Litigation, 24(3), 559-580.
Peter H Rast (2006). The Daubert Decision: Accident Reconstruction Considerations. Forensic Examiner, 15(4), 37-41.
David Wende (2005, December). Expert testimony. CA Magazine, 138(10), 49-50.
Joseph M White (2007, January). Effective Cross-Examination Of Expert Witnesses. The Practical Litigator, 18(1), 17-24.