Federal Evidence Review

In a bank robbery case United States v. Ellison, __ F,3d __ (8th Cir. Aug. 13, 2010) (No. 09-3196), the Eighth Circuit notes that evidence of the defendant's alleged gang affiliation was admissible because its probative value outweighed the danger of unfair prejudice (as it was admitted as proof that the defendant was the gunman in the charged bank robberies); a day earlier in Lee v. Anderson, __ F.3d __ (8th Cir. Aug. 12, 2010) (No. 09-2771), the Eighth Circuit found gang affiliation evidence "should have been" excluded as it had minimal probative value in rebutting plaintiff's claim that the decedent fled from defendant officers because of fear, and this value was outweighed by the danger of unfair prejudice; however its admission was harmless in light of its slight influence on the verdict

It is well-established that the admission of evidence of gang affiliation is a matter of degree under FRE 403's balance of probative value with unfair prejudice. See, e.g., United States v. Abel, 469 U.S. 45 (1984) (“[N]o abuse of discretion under Fed. R. Evid. 403” for the court to admit government witness's testimony on the defendant's membership in a gang to show bias). In some cases proof of gang involvement is necessary to show aspects of the charged crime or claim and is generally admitted, despite concerns with creating prejudice and confusion of the issues under FRE 403. See, e.g., United States v. Alviar, 573 F.3d 526, 536 (7th Cir. 2009) (Gang affiliation admitted in drug conspiracy trial because it was relevant to proof of the conspiracy and it also helped prove the protection that the charged criminal organization provided to its participants.). During the first half of August, the Eighth Circuit examined two cases involving the admission of gang affiliation evidence. The circuit found in one case that admission of gang affiliation was appropriate and in the second that it should have been excluded.

In the Ellison case, the defendant was charged with robbing several banks with other co-conspirators. "Before trial the court denied Ellison's motion in limine to exclude evidence of his affiliation with the West Side Hustlers, also known as the West Covina Hustlers, a gang known for wearing green clothing." Then at trial, evidence was admitted to show that Ellison "was the gunman in each robbery" while other co-conspirators played other recurring roles. "During each robbery Ellison wore a dark jacket or hooded sweatshirt like one recovered by the police which contained DNA potentially linked to him. He was seen displaying a handgun during each robbery. Witnesses at First National Bank described a dark revolver, while the gunman seen at the other two banks carried a silver long barreled revolver. In a vehicle used by the robbers to flee, police found a loaded silver Smith and Wesson .357 revolver containing DNA that was a 1 in 40 quadrillion match to Ellison's." Ellison, __ F,3d at __.

The Eighth Circuit found no error in the admission of this gang affiliation evidence. Its probative value outweighed the danger of unfair prejudice to defendant since it was admitted to establish defendant's identity as the gunman in the charged bank robberies. It was also admitted in order to impeach the defendant's testimony that he was not a member of the gang, and no other evidence was admitted about any other criminal activities of the gang, or of gangs in general. As explained by the circuit:

"In this case the gang related evidence was relevant to establish Ellison's identity as the gunman in the robberies. It tended to show that he had a reason to wear green clothing and that witnesses had seen him in it. The gang evidence also impeached his own testimony. Ellison contends that it should nonetheless have been excluded as unfairly prejudicial. Relevant evidence is inadmissible 'if its probative value is substantially outweighed by the danger of unfair prejudice.' Gang related evidence is inadmissible if its purpose is solely 'to prejudice the defendant or prove his guilt by association with unsavory characters.' Evidence relevant to a disputed issue is not inadmissible merely because it relates to a gang or gang activity, however. United States v. McKay, 431 F.3d 1085, 1093 (8th Cir. 2005)).

Ellison, __ F.3d at __.

In Ellison, the circuit explained one dividing line between admissible gang-affiliation evidence and that which is excludable. In a sense, it revolved around how expansive was the affiliation evidence:

"Here, the evidence was relevant to the charges Ellison faced. Detective Plunkett testified briefly that the West Side Hustlers are a gang whose members wear green clothing, especially green bandanas, and that Ellison was a member. The photograph of Ellison and other alleged Hustlers dressed in green and the witness testimony about hearing him claim to be a Hustler and exclaim its name while making gang signs were offered to impeach his own testimony [that he was not a member]. No evidence was adduced about any criminal activities of the Hustlers or of gangs in general.

"Our concern under Fed.R.Evid. 403 is that the relevance of gang related evidence not be overwhelmed by the risk that the jury will rest a guilty verdict solely on a defendant's gang affiliation. The district court allayed that concern by limiting the scope of the evidence to the issues of identity and impeachment.prejudice from the introduction of limited gang evidence. We conclude that the district court did not abuse its discretion in admitting the challenged evidence."

Ellison, __ F,3d at __ (citations omitted).

In contrast is the Circuit's decision in the Lee case, decided the day before Ellison. Lee v. Anderson, was an excessive force civil rights case brought by the representative of decedent Fong Lee against defendant police officer Anderson. The plaintiffs alleged that officer Anderson killed Lee while chasing him. In his defense to the charges, defendant Anderson alleged that Fong had been armed and that he believed after he apprehended Fong that the decedent would shoot him. At trial, the court admitted the following gang affiliation evidence:

"Evidence of Fong Lee's gang affiliation was used to rebut the plaintiff's assertion that Fong Lee fled from [defendant] Andersen because he was frightened by Andersen's aggressive approach.... [T]he defendants offered no evidence regarding the nature of OMB or the activities its members engaged in. The inferences that the defendants tacitly asked the jury to draw were that gangs are more likely to engage in illegal activities, that engaging in an illegal activity gives motive to flee from police officers, and that Fong Lee's gang affiliation made it more likely that he was engaged in an illegal activity that would cause him to flee. The logic supporting its relevance is attenuated, and evidence of Fong Lee's gang membership was, at best, marginally probative of his motive in fleeing from the officers.

"Similarly, the gang affiliation evidence had slight probative value on whether Fong Lee was carrying a gun as he fled the officers. But the assumption that all gang members carry guns is the same assumption that gives rise to the danger of unfair prejudice.

"Given its low probative value and the danger of unfair prejudice, the gang affiliation evidence should have been excluded. Any error in admitting it, however, was harmless. The testimony was limited to whether Fong Lee was a member of a gang. The jury knew only that the gang was called OMB, that Lor had not engaged in violent activities while associated with the gang, and that he left the group when he decided to 'get his life straight.' When viewed in light of the evidence presented over the course of the six-day trial, we conclude that the gang affiliation testimony and defense counsel's limited use thereof during closing argument did not affect Lee's substantial rights or have more than a slight influence on the verdict."

Lee, __ F.3d at __ (footnote omitted).

The Lee case was the subject of a blog on the admission of gang expert witnesses as well. See Excluding Expert Testimony For Failure To Satisfy FRE 702's Helpfulness Requirement (August 16, 2010). While reaching different results, the two Eighth Circuit cases involving gang affiliation evidence demonstrate the limited scope of such evidence. In Ellison, the government proffered the gang affiliation evidence as an element of proof of the charged crime -- that the defendant was beyond a reasonable doubt the gunman in the charged robberies. On the other hand, in the civil case of Lee, the evidence was hardly relevant to showing that the decedent feared the police and that this accounted for his attempt to escape the defendant officers - the circuit concluded that its minimal probative value was overcome by its prejudicial potential, even though in the case the error in admitting it was harmless in light of the other evidence presented.