Admitting Terrorism Expert Testimony

Terrorism expert testimony on jihad organizations and individuals and on radical Islam was admitted to assist jury in understanding the relationships of alleged terrorist-supporting groups in United States v. Benkahla, 530 F.3d 300 (4th Cir. June 23, 2008) (No. 07-4778)

A recent Fourth Circuit case considered the admission of terrorism expert testimony in a case involving the investigation of groups allegedly supporting terrorist activities.

Defendant Benkahla was acquitted on charges of supplying services to the Taliban and using a firearm in furtherance of a crime of violence. He was subpoenaed to testify before the grand jury investigating the provision of material support to terrorists and terrorist organizations. He was charged with perjury, obstructing justice, and making false material statements to investigators whether he "had participated in a jihadist training camp somewhere in August 1999; that he had handled weapons while there and observed others doing the same; and that he knew about the various people he had communicated with about training for jihad." Benkahla, 530 F.3d at 305.

At trial, a terrorism "expert gave background information on radical Islam and jihad generally rather than discussing Benkahla individually." His testimony covered "the nature and history of the Taliban government in Afghanistan but ultimately touched on many of the individuals, ideologies, and organizations underlying the current conflict." In one statement, he testified that "for Osama bin Laden and al Qaeda, 'Americans, no matter where they are on earth, whether they’re civilian or military, are considered to be a target. There are no innocent civilians.'" Benkahla, 530 F.3d at 308-09. The jury convicted the defendant. The court sentenced him to 121 months in prison.

The Fourth Circuit affirmed his conviction and concluded the terrorism expert assisted the jury in a complicated case. The terrorism expert "assisted the jury in a complicated case touching by necessity on a wide variety of ideas, terms, people, and organizations connected to radical Islam," including "jihad", "jihad training camp[s]," "other jihad organizations," "the Taliban," "the territory . . . across the border in Pakistan," and "the area north of Peshawar in Pakistan." The expert provided context for these and related matters alleged in the indictment. The circuit concluded, "the trial judge could well conclude that lengthy testimony about various aspects of radical Islam was appropriate, and indeed necessary, for the jury ‘to understand the evidence’ and ‘determine [the] fact[s].’" Benkahla, 530 F.3d at 310.

While the subject of terrorism has the potential to be prejudicial, the probative value of this evidence may, in the appropriate case, aid the jury in understanding the facts of the case. Once a court concludes a terrorism expert may assist the jury, a separate question concerns how far the terrorism expert may testify about specific terrorism matters. The Benkahla case provides a recent example of the courts analyzing and addressing these issues.

Federal Rules of Evidence