Federal Evidence Review

In a violent gang activities trial, admitting expert opinion testimony on gang organization and use of violence, based on the witnesses' years of observation of gangs that included testimonial hearsay about gang activities; here experts were not mere conduits of testimonial hearsay because they provided independent judgments and were subject to cross-examination, in United States v. Ayala, 601 F.3d 256 (4th Cir. April 8, 2010) (No. 09-2569)

FRE 703 specifies that experts may rely on otherwise inadmissible evidence for forming an opinion if that evidence is “of a type reasonably relied upon by experts in the particular field.” But what happens when the type of evidence that experts rely upon in the particular field is the type of testimonial evidence precluded from use under the Sixth Amendment Confrontation Clause, as interpreted in Crawford v. Washington, 541 U.S. 36 (2004)? In a recent case, the Fourth Circuit rejected arguments by a defendant that Crawford “silently invalidated” FRE 703 to the extent the rule permits “experts to rely on statements … that happen to be testimonial.”

In the case, as earlier described in “No FRE 801(d)(2)(E) Requirement That The Hearsay Declarant Be Identified Under The Co-conspirator Hearsay Exception,” defendant Ayala was charged with being a member of a gang, the Sailors Locos Salvatruchos Westside (“Sailors”). At trial, the court admitted testimony by three prosecution expert witnesses whose opinions were based “in part on interviews with unnamed declarants.” Upon conviction, the defendant appealed, contending that the trial judge erred by admitting the expert opinion evidence.

As described by the circuit this challenged expert evidence was rather prosaic. The three experts testified about “the history, structure, and practices” of the defendant's alleged gang, MS-13. The first witness (Flores) was a detective in the city police department and “provided a general overview of the gang's history, structure, and operations.” The second expert witness was a “police officer from El Salvador, appearing under a pseudonym for his own protection.” That witness “testified about the gang's structure and its activities in El Salvador.” The third expert (Norris) was a sergeant in a local county police department who opined that items seized in the investigation of the defendant - membership rolls and dues sheets) - “were likely associated with MS-13.” Ayala, __ F.3d at __.

The circuit noted that the basis of these experts opinion testimony involved “extensive experience investigating” the gang to which the defendant allegedly belonged:

Sergeant Norris, for instance, explained that he had conducted surveillance of the gang on many occasions and had participated in the execution of over fifty search warrants related to the gang. Each expert stated that much of his knowledge about the gang resulted from interviews with gang members, the families of gang members, and the gang's victims. Detective Flores, for example, remarked he had personally "contacted or interviewed well over 500' MS-13 members over the last seven and a half years.”

In their appeal, the defendants did not contend that admission of the expert opinion testimony violated FRE 703. Indeed, the defendants conceded that the expert's opinion evidence was based upon evidence that was “of a type reasonably relied upon by experts in the particular field,” as required by the evidence rule. However, the defendants contended that the 2004 U.S. Supreme Court case of Crawford v. Washington “silently invalidated Rule 703 insofar as it permits experts to rely on statements, such as the interviews here, that happen to be testimonial.” Ayala, __ F.3d at __.

The Fourth Circuit found this argument precluded by its decision in United States v. Johnson, 587 F.3d 625 (4th Cir. 2009). In that case the Fourth Circuit “recognized the danger … that an expert might be 'used as little more than a conduit or transmitter for testimonial hearsay.' Accordingly, we held that the question when applying Crawford to expert testimony is 'whether the expert is, in essence, giving an independent judgment or merely acting as a transmitter for testimonial hearsay.'” Ayala, __ F.3d at __ (citing Johnson, 587 F.3d at 635 (“Crawford forbids the introduction of testimonial hearsay as evidence in itself,” but it does not “prevent [ ] expert witnesses from offering their independent judgments merely because those judgments were in some part informed by their exposure to otherwise inadmissible evidence.”))

Application of the test outlined by Johnson was not availing for the defendant:

Applying that test here, we find no Crawford violation. As an initial matter, it is unclear whether the interviews these experts relied on were even testimonial, given that the record is rather bare about the circumstances in which they were conducted. But even if we assume that each expert did rely on testimonial statements, that fact alone does not offend the Confrontation Clause because the experts did not act as mere transmitters and in fact did not repeat statements of particular declarants to the jury. Instead, they offered their independent judgments, most of which related to the gang's general nature as a violent organization and were not about the defendants in particular. These judgments resulted from many years of observing the gang, studying its methods, and speaking with its members. Given that each expert was subject to cross-examination about his judgment, we find no error in the admission of their testimony.

Ayala illustrates the the use of the “conduit” test for assessing whether an expert's testimony based on use of testimonial hearsay violates the Confrontation Clause. Only when an expert witness becomes “little more than a conduit or transmitter for testimonial hearsay, rather than as a true expert whose considered opinion sheds light on some specialized factual situation,” will the Sixth Amendment stand in the way of admission of the expert opinion. Johnson, 587 F.3d at 635; see United States v. Lombardozzi, 491 F.3d 61, 72 (2d Cir. 2007) (precluding expert witness testimony that simply parrots “out-of-court testimonial statements of cooperating witnesses and confidential informants directly to the jury in the guise of expert opinion,” which would simply violate Crawford))