Miller's testimony about McDaniel's nickname underscores the tension between the designation of an expert under ER 702, allowing the expert to testify to opinions and inferences, and the protections of the confrontation clause. In ruling that Miller had personal knowledge of McDaniel's nickname, the trial court apparently understood Miller's testimony to fall within the ambit of ER 705-that is, expert testimony regarding inferences made in reliance on information learned during an investigation.I'm not so sure there is a good line to be drawn -- either for constitutional purposes or for purposes of the nonconstitutional rules of evidence -- between a gang expert's testimony about the nicknames used by members of a gang and a gang expert's "sociological" testimony about matters such as the command structure of a gang. In what pertinent sense is testimony about matters such as the command structure of some gang not "factual"? (It's no explanation to say that such testimony is about a bigger gang than the gang that is involved in the trial of some specific individual. Presumably testimony about the command structure of "organized crime," the "Sicilian mafia," or whatnot is admissible in such cases only if the trial court believes the testimony may shed light on the activities of the particular gang involved in the case [and on the activities of the specific gang member who is on trial].)
¶ 30 The Second Circuit recently addressed this issue in United States v. Mejia, 545 F.3d 179 (2d Cir.2008). There, a police officer testified as a gang expert, not only about the structure and activities of the gang to which the defendants allegedly belonged, but about particular facts relating to the defendants' crimes. Mejia, 545 F.3d at 186-87. The officer testified to some information that he learned during custodial interrogation of other members of the same gang. Mejia, 545 F.3d at 188 n. 3, 199.
¶ 31 On appeal, the Second Circuit reversed the convictions because the gang expert's testimony “addressed matters that the average juror could have understood had such factual evidence been introduced” and held that it was not “acceptable to substitute expert testimony for factual evidence of murder in the first instance.” Mejia, 545 F.3d at 195. We excerpt only part of the court's thorough explanation of this problem:Yet despite the utility of, and need for, [police gang] expertise of this sort, its use must be limited to those issues where sociological knowledge is appropriate. An increasingly thinning line separates the legitimate use of an officer expert to translate esoteric terminology or to explicate an organization's hierarchical structure from the illegitimate and impermissible substitution of expert opinion for factual evidence. If the officer expert strays beyond the bounds of appropriately “expert” matters, that officer becomes, rather than a sociologist describing the inner workings of a closed community, a chronicler of the recent past whose pronouncements on elements of the charged offense serve as shortcuts to proving guilt. As the officer's purported expertise narrows from “organized crime” to “this particular gang,” from the meaning of “capo” [FN15] [FN15. The organized crime slang word “capo”-a captain in a Mafia family-is an example of what an expert officer might properly explain for the jury. Mejia, 545 F.3d at 189.] to the criminality of the defendant, the officer's testimony becomes more central to the case, more corroborative of the fact witnesses, and thus more like a summary of the facts than an aide in understanding them. The officer expert transforms into the hub of the case, displacing the jury by connecting and combining all other testimony and physical evidence into a coherent, discernible, internally consistent picture of the defendant's guilt.Mejia, 545 F.3d at 190-91. Because the officer in Mejia repeated what he heard from others instead of piecing together and analyzing relevant information for himself, the court held that he based part of his expert testimony on inadmissible hearsay and violated the confrontation clause. 545 F.3d at 198-99.
In such instances, it is a little too convenient that the Government has found an individual who is expert on precisely those facts that the Government must prove to secure a guilty verdict-even more so when that expert happens to be one of the Government's own investigators.
¶ 32 Here, Miller testified in pretrial hearings that he learned information that led him to believe that McDaniel used the name “Tony Guns” by questioning unidentified people, including, but not limited to, Yarbrough's former girl friend and a fellow incarcerated gang member. At trial, none of the people who identified McDaniel as “Tony Guns” testified. Miller simply identified “Tony Guns” as McDaniel. Based on the way Miller obtained the information, his testimony did not require gang expertise. None of the people with firsthand knowledge of this factual evidence testified at trial and none were subject to defense cross-examination.
Mush, mush! It's all mush!