Preserving Due Process: Require the Frye and Daubert Expert Standards in State Gang Cases
Police officers are almost universally offered and admitted as experts in gang prosecutions. Without being subjected to the stringent requirements of Frye and Daubert expert standards, criminal Defendants’ due process rights are violated. Once admitted, police officers are permitted to testify to the psychology, customs, motivations, social structures and subjective mental states of individual gang members and gang organizations. Police gang expert testimony should only be admitted after the underlying criminal matter has been proven beyond a reasonable doubt, and even then, only if the police gang expert testimony abides by clearly defined rules of evidence. This article advocates for a strict application of the Frye and Daubert expert standards to police officer testimony, when offered as experts in gang prosecutions. This article proceeds in six parts. Part I provides the social political context of gang prosecution, an overview of lay-witness and expert witness admissibility standards, then describes the development and codification of the Frye and Daubert expert standards in trials. Part II demonstrates that gang expert testimony is “social scientific” in nature and experts must be scrutinized under the Frye or Daubert standard depending on the jurisdiction of the offense. Part III uses a case study to demonstrate the flawed logic courts employ when refusing to apply Frye and Daubert in state gang cases. Part IV demonstrates that the evidence police experts offer in gang cases is unreliable and would fail a Frye or Daubert test, if applied. Part V explores the impact upon criminal Defendants’ due process rights when admitting gang “expert” testimony in gang cases. Finally, Part VI explores courts treatment of Drug Recognition Experts (DRE) in the context of driving under the influence cases and proposes that like DRE, when police gang experts cannot fulfill the requirements of Frye and Daubert, they must be limited to lay-witness observations or excluded completely. State gang statutes, patterned after the Federal Racketeering Influenced and Corrupt Organization Act (RICO), are part of a broader move toward complex criminal liability that deprives criminal Defendants of their due process rights. Like RICO, gang statutes further expand the prison industrial complex and facilitate mass incarceration by circumventing well-established expert standards. Due process protections are eviscerated by state gang statutes when they allow unduly prejudicial speculation, hearsay evidence without exception and unreliable findings. These state gang statutes have operated to incarcerate poor, young, men of color—seasoned gang member, novice gang member, or simply the accused gang member—under a different set of legal standards than the constitution mandates. State gang statues must be abolished but until then, amended to comply with due process.
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Fareed N. Hayat,
Preserving Due Process: Require the Frye and Daubert Expert Standards in State Gang Cases,
N.M. L. Rev.
Available at: https://digitalrepository.unm.edu/nmlr/vol51/iss1/7