In People v
Bynum, 496 Mich 610 (2014), the Supreme Court held that while expert
testimony regarding gangs may be admitted if relevant under MRE 402 and helpful
to the jury under MRE 702, “MRE 404(a) precludes testimony that is specifically
used to show that, on a particular occasion, a gang member acted in conformity
with character traits commonly associated with gang members.”
Both “MRE 402
and MRE 702 require a trial court to act as a gatekeeper of gang related expert
testimony,” which in turn mandates that the court determine whether the
testimony is relevant and will assist the trier of fact. Bynum, 496 Mich
at 625. Sometimes the evidence is necessary simply to expose that a
particular crime was, in fact, gang related. Id. at 626. “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.’” Id.,
quoting Gutierrez v State, 423 Md 476, 496; 32 A3d 2 (2011).
Accordingly, the expert testimony properly may address “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.” Id. at 626-627.
Nevertheless, such evidence must be admissible under MRE 404(a), which 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 . . . .” Bynum, 496 Mich at 627. “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.” Id. at 627. “[a] witness may not opine about the
defendant’s guilt or innocence in criminal case.” People v Heft, 299
Mich App 69, 81 (2012).
In an analogous
context – expert witness testimony involving drug trafficking—this Court has
recognized the danger that arises when the profile of a drug transaction “begins
to resemble the defendant’s circumstances and characteristics too closely,”
thereby approximating “substantive evidence of guilt.” People v Murray,
234 Mich App 46, 55 (1999). Because expert testimony carries “an aura of
special reliability and trustworthiness,” its admission risks “that the jury
will confuse the expert’s description of the profile for substantive evidence
of a defendant’s guilt.” Id. at 55-56 (quotation marks and citation
omitted). “Particularly when the opinion is proffered by an officer of the law,
the error seriously affects the fairness, integrity, or public reputation of
the proceedings.” Bynum, 496 Mich at 633. To avoid this danger, trial
courts “must take into consideration the particular circumstances of a case and
enable profile testimony that aids the jury in intelligently understanding the
evidentiary backdrop of the case, and the modus operandi of drug dealers, but stop
short of enabling profile testimony that purports to comment directly or
substantively on a defendant’s guilt.” Murray, 234 Mich App at 56. In Murray,
this Court offered suggestions for distinguishing between proper and improper
uses of drug profile testimony, including an instruction that “the expert
witness should not express his opinion, based on a profile, that the defendant
is guilty, nor should he expressly compare the defendant’s characteristics to
the profile in such a way that guilt is necessarily implied.” Id. at 57.
Similarly,
expert testimony regarding the battered woman syndrome, while generally admissible,
may not include an opinion “that complainant was a battered woman, . . . that defendant
was a batterer or that he is guilty of the crime[.]” People v Christel,
449 Mich 578, 591 (1995).
MRE 703 also provides:
“The facts or data in the particular case upon which an expert bases an opinion
or inference shall be in evidence. This rule does not restrict the discretion
of the court to receive expert opinion testimony subject to the condition that
the factual bases of the opinion be admitted in evidence thereafter.”
We underscore
the critical difference between general testimony about gang motivations
to avenge disrespect and testimony connecting those aspects of gang character
to defendant’s action at a specific time. The Supreme Court condemned the
latter in Bynum: “Such testimony attempted to ‘prov[e] action in
conformity’ with character traits common to all gang members on a particular
occasion. As a result, this testimony violates MRE 404(a).” Bynum, 496
Mich at 631.
