Federal Evidence Blog

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. Read more

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.

Tenth Circuit Highlights Permissible Uses Of Compromise Evidence Under FRE 408

Compromise evidence used to establish the amount in controversy in diversity of jurisdiction case without violating FRE 408, in McPhail v. Deere & Co., 529 F. 3d 947 (10th Cir. June 25, 2008) (No. 07-6142) Read more

Selective Waiver Under The Attorney-Client Privilege Protection Act

Why Is The Selective Waiver Issue Receiving Little Meaningful Discussion In The Debate Over The Attorney-Client Privilege Protection Act?

As we noted on July 7 and June 24, two separate and distinct measures have passed either the House or Senate concerning the attorney-client privilege. The legislation gaining most of the recent attention is the Attorney-Client Privilege Protection Act (introduced as H.R. 3013 and S. 3217) which would enact a new statute: 18 U.S.C. § 3014. On November 13, 2007, the House of Representatives passed nearly identical legislation in H.R. 3013. Senator Arlen Specter is strongly promoting action in the Senate on the similar measure he introduced, S. 3217. Read more

DOJ Reevaluating McNulty Attorney-Client Privilege Memo

Deputy Attorney General Addresses Waiver Of Attorney-Client Privilege As A Factor In Current Corporate Investigation Policy

During Attorney General Michael Mukasey’s testimony before the Senate Judiciary Committee on July 9, 2008, the subject of the McNulty Memorandum and DOJ application of the attorney client privilege in corporate investigations came up. Attorney General Mukasey noted the department was in the process of considering revisions to the policy reflected in the McNulty Memo. The AG announced that a new policy would be set out in a forthcoming letter to the Committee by Deputy Attorney General Mark Filip. Read more

Restyling The Federal Rules Of Evidence: Final Drafts Completed For FRE 101 to 415 (Part I)

The evidence rule restyling process is underway with review of one-third of the rules completed

A project to “restyle” the FRE is well underway. So far about one-third of the rules (24 of the 67 evidence rules) have been restyled as part of a draft proposal. On May 1-2, 2008, the Advisory Committee on Evidence Rules met in Boston and unanimously voted to approve the proposed restyled rules (FRE 101-415). These draft rules will be included in a final package for all of the restyled rules. The Standing Committee will ultimately decide whether the package of restyled rules will be released for public comment as part of amendments to the FRE. See Report of the Advisory Committee on Evidence Rules (May 12, 2008). Read more

Sixth Circuit Rehearing En Banc Case Testing Application Of Federal Spoliation Law

In response to a panel’s suggestion of a conflict with other circuits, the Sixth Circuit will rehear en banc Adkins v. Wolever, 520 F.3d 585 (6th Cir. 2008), vacated after rehearing en banc granted (6th Cir. May 23, 2008) on whether state or federal spoliation law applies in diversity suit

Plaintiff Adkins, a Michigan state prisoner, filed a civil rights action against a prison guard claiming the guard assaulted and injured him. During civil discovery, the plaintiff requested film and photographic evidence concerning the incident. The requested evidence was not provided and the defendant was told that "all such evidence [wa]s no longer available and may have been destroyed." Adkins, 520 F.3d at 586. At trial, the plaintiff requested a spoliation instruction to allow the jury to draw an adverse inference from the unavailable evidence. In applying state law, the trial court denied the request. After the defendant prevailed at trial, on appeal the plaintiff challenged the trial court’s ruling. Read more

Supreme Court Watch: Will The Supreme Court Eventually Resolve A FRE 404(b) Circuit Split?

Circuits apply different tests for admitting other act evidence under FRE 404(b)

FRE 404(b) is an important rule that is regularly the subject of in limine and other motions. FRE 404(b) generally prohibits the admission of other crimes, wrongs or acts "to prove the character of a person in order to show action in conformity therewith." See, e.g., United States v. Sumlin, 489 F.3d 683, 689 (5th Cir. 2007) ("Rule 404(b) is designed to guard against the inherent danger that the admission of ‘other acts’ evidence might lead a jury to convict a defendant not of the charged offense, but instead of an extrinsic offense.") Read more

Expert Testimony Based On Hearsay Did Not Violate The Confrontation Clause

"Crawford does not limit the admissibility of expert witness testimony," notes the D.C. Circuit in drawing a distinction between expert testimony and "testimonial" hearsay statements in United States v. Law, 528 F.3d 888 (D.C. Cir. June 13, 2008) (per curiam) (No. 05-3091)

Under FRE 703, if the facts used are the sort reasonably relied upon by experts in the particular field for forming an opinion, the information need not be admitted (nor need it even be admissible). Under this rule, an expert may rely on hearsay statements as long as the statements are reasonably used by experts in forming an opinion. However, if the expert relies on hearsay that is "testimonial" under Crawford v. Washington, 541 U.S. 36 (2004), is the Confrontation Clause violated?

In resolving this issue, the D.C. Circuit drew a distinction between expert testimony and relating hearsay statements. In the drug trial involved in Law, a detective testified as an expert concerning the manner in which narcotics dealers operate. On appeal, the defendants claimed that the expert "formed his opinion about the typical operations of narcotics dealers over the course of thousands of interviews, and that his testimony is in reality the testimony of thousands of out-of-court ‘witnesses’ who were not subject to cross-examination."

The circuit concluded this basis for the expert’s testimony did not implicate the Sixth Amendment Confrontation Clause. As the circuit noted, the detective "testified based on his experience as a narcotics investigator; he did not relate statements by out-of-court declarants to the jury." Law, 528 F.3d at 912. The Crawford case was distinguishable. The Supreme Court’s Crawford ruling "did not involve expert witness testimony and thus did not alter an expert witness’s ability to rely on (without repeating to the jury) otherwise inadmissible evidence in formulating his opinion under Federal Rule of Evidence 703." Law, 528 F.3d at 912 (quoting United States v. Henry, 472 F.3d 910, 914 (D.C. Cir. 2007) (per curiam) (under plain error review, rejecting challenge to police detective expert testimony about the meaning of drug code words based on reliance on hearsay statements; Crawford did not involve expert witness testimony and thus did not alter an expert witness’s ability to rely on (without repeating to the jury) otherwise inadmissible evidence in formulating his opinion under Federal Rule of Evidence 703. "In other words, while the Supreme Court in Crawford altered Confrontation Clause precedent, it said nothing about the Clause’s relation to Federal Rule of Evidence 703…. Crawford does not represent an intervening change in the law regarding the admissibility of Thomas’s expert testimony.")).Read more

Congress Watch: Attorney-Client Privilege Protection Act of 2008 (S. 3217)

Senator Specter introduces a new Senate Bill: a modified version of his earlier bill, S. 186 to regulate federal department and agency demand for materials protected by the attorney-client privilege and work product doctrine.

Just as the Senate was winding down for its Fourth of July recess, on June 26, 2008, Senator Arlen Specter (R-PA) introduced S. 3217 - the Attorney-Client Privilege Protection Act of 2008. He explained that this legislation was a "modified version" of S. 186, introduced in 2007.Read more

Supreme Court Watch: After Giles, Will Congress Revisit The FRE 804 Version Of Forfeiture By Wrongdoing?

Does Giles v. California eliminate the need for the current congressional attention to FRE 804(b)(6) (Forfeiture By Wrongdoing)?

Before Giles was decided on June 25, 2008, the Senate adopted a measure which directed the U.S. Judicial Conference to review the forfeiture by wrongdoing rule. The provision provided:

Sec. 205. Study Of Hearsay Exception For Forfeiture By Wrongdoing.
The Judicial Conference of the United States shall study the necessity and desirability of amending section 804(b) of the Federal Rules of Evidence to permit the introduction of statements against a party by a witness who has been made unavailable where it is reasonably foreseeable by that party that wrongdoing would make the declarant unavailable.
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