Federal Evidence Review

In action to recover damages based on international terrorism, while noting concerns that a terrorism and counterterrorism expert relied on web postings to show that organization was responsible for the murder, en banc majority concludes that FRE 703 permitted the expert to rely on this unauthenticated, hearsay evidence, in Boim v. Holy Land Foundation for Relief and Development, __ F.3d __ (7th Cir. Dec. 3, 2008) (en banc) (Nos. 05-1815, 05-1816, 05-1821 & 05-1822)

A recent Seventh Circuit en banc opinion highlights some tension and limits on what Internet information an expert may rely upon. A terrorism expert relied in part on some web postings to opine that an organization was responsible for a murder. The original posting provides some additional background on the case. See Limits To Relying On Internet Materials And Information In Court (Part IV(a)).

In the case, the parents of David Boim, a citizen of Israel and the United States, brought an action to recover treble damages claiming acts of international terrorism were the cause of their son’s murder in the Middle East. The original panel majority noted concerns that a terrorism and counterterrorism expert relied on websites to show that Hamas was responsible for the murder. The panel majority queried whether the expert was “being used as a vehicle for circumventing the rule against hearsay.” Boim, 511 F.3d at 753. The original panel majority concluded the district court abused its discretion in allowing the expert to rely on web postings and other unauthenticated information.

An en banc majority echoed many of the same concerns articulated by the panel majority. However, the en banc majority found there was no abuse of discretion by the district court. Under FRE 703, the expert was “not limited to relying on admissible evidence in forming his opinion.” Boim, __ F.3d at __ [*** (citing Wendler & Ezra, P.C. v. American Int’l Group, Inc., 521 F.3d 790, 791 (7th Cir. 2008) (“experts may rely on information that would not be admissible in evidence”); In re James Wilson Associates, 965 F.2d 160, 172-73 (7th Cir. 1992); United States v. Locascio, 6 F.3d 924, 938 (2d Cir. 1993) (under FRE 703, “expert witnesses can testify to opinions based on hearsay or other inadmissible evidence if experts in the field reasonably rely on such evidence in forming their opinions”))] The en banc panel agreed with the position of the original panel dissent of Circuit Judge Evans. See Boim, 511 F.3d at 758. As the en banc majority noted:

“An expert on terrorism in the Arab world, fluent in Arabic, [expert witness] Paz explained that the websites of Islamic movements and Islamic terrorist organizations have long been accepted by security experts as valid, important, and indeed indispensable sources of information. Terrorist organizations rely on the web to deliver their messages to their adherents and the general public. The United States Institute for Peace, a nonpartisan federal institution created by Congress, published an extensive report, submitted to the district court along with Paz’s declaration, on the use of the Internet by terrorists. And – critically -- the defendants presented no evidence to contradict Paz: no evidence that the killing of Boim was not a Hamas hit. Had they thought Paz had mistranslated the Arabic judgment against Hinawi, they could have provided the district court with their own translation. Had they doubted that Paz can identify a Hamas website (he gave the web addresses of several of them), they could have presented testimony to that effect. Paz’s 12-page declaration is detailed, concrete, and backed up by a host of exhibits. The district court did not abuse its discretion in admitting his evidence; and with it in the record and nothing on the other side the court had no choice but to enter summary judgment for the plaintiffs with respect to Hamas’s responsibility for the Boim killing.”
Boim, __ F.3d at __.

Circuit Judge Rovner, concurred in part and dissented in part, troubled that the expert could rely on the “unauthenticated electronic and documentary sources for his conclusion.” Boim, __ F.3d at __. As the judge explained, the expert’s:

“opinion is based exclusively on what these websites and documents say; he has no personal knowledge of who killed David Boim. So if these sources are not genuine or say something other than what he has represented, then his opinion is worthless. No expert worth his salt would base his opinion on internet and documentary sources without assuring himself that they are reliable -- that a website thought to be a Hamas site is, in fact, a website controlled by Hamas and authorized to make representations on its behalf, for example, or that what purports to be the written judgment of a foreign tribunal is actually that. But Paz’s affidavit does not describe any such efforts that he made, and there is no other evidence in the record that establishes the authenticity and reliability of the websites and documents whose contents he recounts. The glaring lack of any information confirming the authenticity and accuracy of Paz’s sources raises obvious doubts about the reliability of his opinion.”
Boim, __ F.3d at __.

Circuit Judge Wood, also concurred in part and dissented in part. Troubled by the tenuous, unproven basis relied upon by the expert, the judge noted that:

“The majority accepts that [expert] affidavit as adequate, noting only the uncontroversial point that experts are allowed to rely on hearsay and other inadmissible evidence. See FED. R. EVID. 703 (expert may rely on facts or data 'reasonably relied upon by experts in the particular field in forming opinions or inferences upon the subject'). No one doubts this. The panel’s point in Boim II was that, at least since Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993), and the revision of FED. R. EVID. 702, there must nevertheless be a solid foundation for the expert’s opinion. Rule 702 puts the point this way: the expert may offer an opinion '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.' It is these threshold criteria that are at issue. No one is saying that these requirements cannot be met in this case, or in any other case involving international terrorism. They just have not been satisfied yet, and so QLI and AMS should have won a remand on this basis as well.” Boim, __ F.3d at __.

In Boim, there was no dispute that the web postings were not authenticated and contained hearsay. FRE 703 allows experts to rely on hearsay matters to the extent the facts used are reasonably relied upon by experts in the particular field for forming an opinion. At some point, the matters relied upon by an expert may not be reasonable. The Boim decisions show how several judges differed in how to treat the expert’s reliance on the web postings.