Defense attorneys make a living by attacking all types of expert testimony and a few are actually very good at it. So, how does the law enforcement expert — a cop with street experience and some formal training in a particular area who is willing to go to court to testify — fend off such an attack?
In answering this question, I’m going to focus on what I know the most about — expert gang testimony — but the basic principles apply to other areas of expertise.
In my experience the defense generally attacks expert gang testimony during two phases:
1.) When you are being qualified as an expert.
2.) During the testimony phase, when you’re explaining why something is a crime (in my case why the defendant is a gang member).
While Being Qualified
Most defense attorneys will take a shot at your credibility as an expert witness, especially when you’re relatively new to the game. They will often go after:
A.) The number of gang contacts you have: I know one defense attorney who likes to try to minimize the number of contacts you have by saying things like, “Out of the 300 contacts you claim to have with gang members, how many are with the same gang member?” or “How many of those contacts were during custodial situations?” or “During those consensual contacts you mentioned, did the young adults you were harassing feel free to go?”
The key here is to stay cool and answer each question one at a time. Don’t be afraid to say, “I don’t know.”
As a rule, I lowball these types of numbers. If I’m pretty sure I have more than a thousand contacts, it’s safer to say I have more than five hundred. The credibility value is about the same, and if I’m ever forced to pull and prove all those contacts, I’d rather it be discovered I have more than less.
This is also applies with number of felony arrests, number of gang cases investigated — anything quantifiable.
B.) Lack of education and/or experience: In California, an expert is someone who knows more about something than the average person. As a cop/police academy graduate you automatically know more than the average Joe about gangs (as well as dope, traffic, firearms, etc.).
A good remedy for this is to try to testify as an expert as much as possible. It’s hard to argue with success, especially after a judge has already qualified you in a previous case.
A.) Not my client: In California (and, I’m assuming, other states) you are required to prove the actual existence of the gang. We do this through predicate offenses, which are basically prior criminal cases the gang has been involved in that resulted in arrests and prosecution.
In the jurisdiction where I work, we’re required to list the name of the gang, the crime involved, the names of the gang members, and what they were ultimately convicted of. It sounds like this:
Maple Street gang members Shamus Washington and Paulo Stravinsky were arrested for frapery with intent to mope against a rival gang member. Washington was convicted of Penal Code 12345 and sentenced to two years in San Quentin School for Boys.
Routinely, defense attorneys will ask if their client has been contacted with the listed suspects in the predicate case. The short answer is generally “no.”
Ultimately, it’s irrelevant, but it takes up time and I’m assuming most defense attorneys get paid by the hour. Occasionally you’ll get lucky and you know of a contact between the defendant and a suspect listed in the predicate case.
B.) The race card: This is when the defense attorney says, “So if I understand you correctly, you would consider any (Canadian, Brazilian, Austrian, pick one…) male walking through this neighborhood to automatically be a gang member?”
A good way to avoid this type of attack is to not classify any gang as being only populated by members of any one race.
Most gangs today may have a dominant race or ethnicity but most will have at least a few members who are not. For example, I might say, “The 21st street gang is primarily a Norwegian gang but I know of members from Sweden, Finland, and other places as well so I wouldn’t classify it as a strictly Norwegian gang nor would I brand someone a gang member based on them being Norwegian — or any other race for that matter.”
C.) Divide and conquer: Often, defense attorneys will try to dissect an argument of gang relatedness by attacking its parts rather than the whole.
Like the “Race Card” defense, this is based on attacking one aspect of the case and trying to make it sound like its deciding factor.
For example, the defense attorney says, “What if my client wasn’t wearing a red 49ers jersey and Cincinnati Reds hat during the ‘fight’ (defense-speak for an assault)? Would that alter your opinion of the gang relatedness?” Or “So what you’re saying is, the only thing that identified my client as a gang member, in your opinion, is what he was wearing?”
A good response is to reintroduce all of the facts that have already been brought up in your expert testimony.
This might sound like, “Part of my opinion is based on the defendant’s clothing, but it is also based on the fact that he was with two other Norteno gang members when they assaulted the rival Sureno gang member, it happened in Norteno turf, and your client yelled, ‘Puro Norte‘ during the assault. So yes, even if you took the Norteno gang clothing out of the equation, it's still a gang crime. I based my opinion on the totality of the circumstances.”
D. Hail, hail, the gang’s all here: As part of a gang case, I routinely list all of the suspect’s gang-related law enforcement contacts (arrests, field interviews, and so on). In a case I recently testified on, the defense subpoenaed every police officer I had mentioned who had contacted his client and then tried to attack the legality of each and every stop. Officers had to try to explain what their probable cause was for a contact they were involved in five years prior.
As cops, we contact thousands of people and it would be impossible to remember them all. It’s my understanding that this is a common defense tactic in other jurisdictions, but it’s a new one to me.
The best counter to this is limiting your contacts as much as possible to ones you are personally involved in, and avoid listing too many from a long time ago. Preheat a particular officer you’re going to use, refresh their memory, or decide not to use them at all if they have no independent recollection of a contact.
Finally, most gang members have tons of contacts with law enforcement. You could do some triage and eliminate some of them as long you can still prove that the suspect is a gangster. Doing so will mean having less to remember on the stand.
No one likes to be on the stand for hours at a time (or in certain cases, days) answering seemingly stupid, confrontational questions. But you have to think about the desired end state.
Successful expert testimony almost always results in stiffer penalties for the guilty. A subject who was looking at probation may go to jail, and a subject who thought he was going to jail might end up in prison.
As cops we often complain about the “revolving door” that seems to let offenders off with little to no consequence for their actions. Expert testimony is one way of putting a lock on that door.