Burris v. State: Suggestions for the Continued Development of the Rule for Admitting the Testimony of Gang Experts

Michael Jacko

In Burris v. State, the Court of Appeals of Maryland asked whether it was appropriate to admit expert testimony on the culture and history of street gangs when doing so could explain why witnesses recanted their pretrial statements concerning the defendant's involvement in a murder case. Acknowledging the potentially inflammatory nature of alleged gang membership, the court applied the two-part rule for admitting expert testimony on gangs that it had previously adopted in Gutierrez v. State. It unanimously concluded that while there was adequate fact evidence connecting the murder to gang activity, the potential for unfair prejudice from the expert testimony outweighed its probative value. Therefore, the court held that the testimony should have been excluded. The court reached the necessary conclusion, but it missed the opportunities to further clarify the correct application of the Gutierrez test, and to define when, if ever, expert testimony could permissibly allege witness intimidation as an explanation for why a government witness might recant her pretrial statements. First, the court should have explicitly included in its test a requirement that the prosecution demonstrate the defendant's gang affiliation by clear and convincing evidence. Second, it should have set forth a standard of proof required to establish a gang connection to a crime. Third, the court ought to have stipulated a requirement that prosecutors demonstrate the presence of witness intimidation before a court might permit an expert to describe patterns of witness intimidation generally. Failing to include such safeguards in the state's jurisprudence concerning such potentially toxic evidence as a defendant's membership in a gang is to risk a significant curtailment of the right to a fair trial.