4.5Gang-Related Crimes–Expert Testimony
A. General Standards Regarding Relevancy and “Assisting the Trier of Fact”
“As a threshold matter, applying MRE 402 and MRE 702 requires a trial court to act as a gatekeeper of gang-related expert testimony and determine whether that testimony is relevant and will assist the trier of fact to understand the evidence.” People v Bynum, 496 Mich 610, 625 (2014). “[F]act evidence to show that the crime at issue is gang-related provides a sufficient basis for a trial court to conclude that expert testimony regarding gangs is relevant and will be helpful to the jury, although the significance of fact evidence and its relationship to gang violence can be gleaned from expert testimony. Id. at 629.
“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.” Bynum, 496 Mich at 625-626, quoting MRE 702.
This subsection discusses only permissible testimony; for a discussion on limitations on gang-related expert testimony, see Section 4.5(C).
1. Underlying Fact Evidence
“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.” People v Bynum, 496 Mich 610, 626 (2014). “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.” Id. (quotation marks and citation omitted).
“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.” Bynum, 496 Mich 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. (quotation marks and citation omitted).
In Bynum, the Court held that “the location of the crimes [(on disputed gang territory)], when combined with evidence that multiple gang members were involved in the crimes, provided sufficient fact evidence to conclude that expert testimony regarding gangs, gang membership, and gang culture would be relevant and helpful to the jury in this case.” Bynum, 496 Mich at 630.
2.Expert Testimony to Establish Motive
Establishing a gang member’s motive for committing a gang-related crime is an appropriate purpose for which expert testimony may be admitted. People v Bynum, 496 Mich 610, 630 (2014). Accordingly, “a gang expert may testify that a gang, in general, protects its turf through violence as an explanation for why a gang member might be willing to commit apparent random acts of violence against people the gang member believes pose a threat to that turf.” Id.
C.Limitations on Expert Testimony
MRE 404(a)(1)1 “limits the extent to which a witness may opine about a defendant’s gang membership.” People v Bynum, 496 Mich 610, 627 (2014). “[A]n 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. However, gang-related evidence could be admissible if it is used for a nonconformity purpose, such as proving motive, absence of mistake, or lack of accident. People v Smith, 336 Mich App 79, 113 (2021); MRE 404(b) (noting “[i]n a murder case, proof of motive is always relevant, even if not always necessary”).
The expert in Bynum “veered into objectionable territory when he opined that [the defendant] had acted in conformity with his gang membership with regard to the specific crimes in question.” Bynum, 496 Mich at 630-631. Specifically, the expert’s testimony describing the character traits associated with gang membership to interpret a surveillance video improperly suggested the defendant’s guilt. Id. at 631. The expert testified that when he viewed the video, he saw the gang members, including the defendant “all posted up at the store with a purpose. When they went to that store that day, they didn’t know who they were going to beat up or shoot, but they went up there waiting for someone to give them the chance. ‘Make us – give me a reason to – to shoot [you], to fight you, to show how tough we are, the Boardman Boys, on our turf.’” Id. (alteration in original). The Court held that “[i]n contrast to his otherwise admissible general testimony about aspects of gang culture, [the expert’s] testimony interpreting the video evidence specifically connected those character traits to [the defendant’s] conduct in a particular circumstance. Such testimony impermissibly attempted to ‘prov[e] action in conformity’ with character traits common to all gang members on a particular occasion. As a result, this testimony violated MRE 404(a).” Bynum, 496 Mich at 631.
Gang-related testimony is also subject to MRE 403, which requires the trial court to determine whether the danger of unfair prejudice to the defendant substantially outweighs the probative value of the evidence. Bynum, 496 Mich at 635 n 43.
Committee Tip:
The distinction between acceptable and improper gang expert testimony often becomes muddled. Be on guard for its impermissible use as conformity evidence under MRE 404(a).