Gang-related expert testimony.

In People v Bynum, __ Mich __ (#147261, 7/11/2014) the Michigan Supreme Court held that MRE 402 and MRE 702 requires a trial court to act as a gatekeeper of gang-related expert testimony to determine whether the proposed testimony is relevant and will assist the trier of fact to understand the evidence. The introduction of evidence regarding a defendant’s gang membership is relevant and can “assist the trier of fact to understand the evidence” when there is fact evidence that the crime at issue is gang-related.  However, ordinarily, expert testimony about gang membership is of little value to a fact-finder unless there is a connection between gang membership and the crime at issue.  Additionally, an expert witness may not use a defendant’s gang membership to prove specific instances of conduct in conformity with that gang membership, such as opining that a defendant committed a specific crime because it conformed with his or her membership in a gang. Such testimony violates MRE 404(a).

Sometimes, identifying whether a crime is gang-related requires an expert to establish the significance of seemingly innocuous matters—such as clothing, symbolism, and tattoos—as features of gang membership and gang involvement. At other times, “an expert’s testimony that the crime was committed in rival gang territory may be necessary to show why the defendant’s presence in that area, a fact established by other evidence, was motivated by his gang affiliation.”  In other words, understanding the connection between the crime and gang activity is sometimes beyond the ken of common knowledge. Accordingly, the relevance of gang-related expert testimony “may be satisfied by fact evidence that, at first glance, may not indicate gang motivations, but when coupled with expert testimony, provides the gang-crime connection.”

In the context of gang-related violence, expert testimony may be admitted regarding general characteristics of gang culture for an appropriate purpose, such as helping to elucidate a gang member’s motive for committing a gang-related crime. For example, if someone got a member of the gang in trouble, the gang would retaliate” as part of “the State’s attempt to establish a motive” for such retaliation. The testimony, of course, must otherwise meet the rules of evidence before it can be admitted, and MRE 404(a) limits the extent to which a witness may opine about a defendant’s gang membership.  In that regards MRE 404(a) provides that “[e]vidence of a person’s character or a trait of character is not admissible for the purpose of proving action in conformity therewith on a particular occasion.  An expert may not testify that, on a particular occasion, a gang member acted in conformity with character traits commonly associated with gang members. Such testimony would attempt to prove a defendant’s conduct simply because he or she is a gang member.

In Bynum, the expert exceeded the limitations of MRE 404(a) when he went beyond discussing the general characteristics of gang membership and gang culture and testified that he believed that the defendant exemplified, on a particular occasion, the character trait of a gang member who needed to protect territory through violence.  By proffering an opinion that the defendant exhibited the character trait of violence commonly associated with gang members to explain how the defendant allegedly premeditated in the murder, the expert gave the jury a separate reason for rejecting the defendant’s self-defense claim.