Expert’s Reliance On Hearsay Interviews Did Not Violate The Confrontation Clause

Fourth Circuit holds that law enforcement expert testimony about gang “development, organization, policies, practices, and symbols” which was based in part on interviews with gang members and victims did not violate the Confrontation Clause since the interviews were used “to form an independent opinion” and were not mentioned during the testimony, in United States v. Palacios, _ F.3d _ (4th Cir. April 30, 2012) (No. 08-5174)

One expert testimony issue which the courts have wrestled with recently concerns the extent that an expert may provide an opinion which is based in part on hearsay consistent with the Confrontation Clause. FRE 703 provides that an expert witness may "base an opinion on facts or data in the case that the expert has been made aware of or personally observed." The expert may base the opinion on hearsay “[i]f experts in the particular field would reasonably rely on those kinds of facts or data in forming an opinion on the subject." Courts have considered how this rule operates under the Confrontation Clause. See, e.g., Reconciling The Confrontation Clause and FRE 703.

In the case, defendant Palacios was prosecuted for racketeering and firearms offense based on his involvement in the street gang La Mara Salvatrucha, commonly known as MS-13. At trial, a sergeant in the gang unit provided expert and factual testimony: He “provided expert testimony on the gang’s development, organization, policies, practices, and symbols. He also provided lay testimony about events he personally observed while investigating Maryland-area MS-13 cliques.” Palacios, _ F.3d at _. The expert testimony about the gang was based upon “extensive gang culture training, interactions with other law enforcement officers who specialize in gangs, personal observation through surveillance and executing search warrants, and ‘[h]undreds and hundreds . . . , if not thousands’ of interviews with MS-13 members and victims of MS-13 gang violence.” Palacios, _ F.3d at _. The trial court required the prosecutor to demarcate when the sergeant provided expert testimony and factual testimony.

After the defendant was convicted, on appeal he claimed that the sergeant “acted as a conduit for testimonial hearsay” in violation of the Confrontation Clause under Crawford v. Washington, 541 U.S. 36 (2004).

In determining whether the expert was "giving an independent judgment or merely acting as a transmitter for testimonial hearsay," the Fourth Circuit had previously considered whether an expert "is applying his training and expertise to the sources before him," thereby producing "an original product that can be tested through crossexamination." United States v. Johnson, 587 F.3d 625, 635 (4th Cir. 2009) (Crawford 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"); see also United States v. Ayala, 601 F.3d 256, 274 (4th Cir. 2010) (permitting expert testimony on the MS-13 gang where the law enforcement experts “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” and which “resulted from many years of observing the gang, studying its methods, and speaking with its members” and “each expert was subject to cross-examination about his judgment”).

The Fourth Circuit noted that the record did not indicate whether the interview of gang members and victims were testimonial or not. Even assuming some of the interviews constituted testimonial hearsay, the sergeant “did not specifically reference any of these interviews during his expert testimony, nor did he make any mention of [defendant] Palacios in particular.” Instead, the expert “used these interviews, along with the other sources of his extensive knowledge about MS-13, to form an independent opinion about the gang’s history, operation, structure, practices, and symbols.” Palacios, _ F.3d at _. The expert was also subjected to cross-examination concerning his judgment.


Federal Rules of Evidence