Gang prosecution: the need for qualifying law enforcement officers as expert witnesses.

• Author: Wennar, Jeffrey T.

Case scenario: A 15-year-old is fatally stabbed as he walks home from school. The stabbing occurs just off school property. Police announce they are looking into the possibility that the killing was gang related. Friends and family of the victim deny he had any gang affiliation. The high school principal tells reporters that gangs are not a problem at the school. A newspaper editorial calls upon elected officials to do more. Elected officials denied the gang problem. The same officials were then forced by media and public out-cry to make pronouncements addressing actions they would take to address a problem they publicly stated did not exist.

THIS CASE IS NOT UNUSUAL. It is often difficult for jurisdictions to admit they have a gang problem, but the first step in addressing gang activity is to admit that the problem exists. The 2005 National Gang Threat Assessment states that all jurisdictions over the population of 250,000 experience gang problems. The jurisdiction where the above case scenario occurred has in excess of 500,000 residents.

The prosecutor in this case had to first determine whether to prosecute the case pursuant to gang enhancement statutes, given the previous representation that there was no gang problem in the community. Had the prosecutor been unable to show that there was a specific gang problem, the prosecutor would have been prevented by the court from introducing a gang motive. [Although motive is not usually an element of the substantive offense charged, juries are told they may consider the motive or lack of motive as a circumstance in the case. If possible, prosecutors want to establish a motive because it completes the picture for the jury.]

Depending on a jurisdiction's statutes, the prosecutor presenting a gang case can have a tremendous burden. For instance, in Maryland, where this crime occurred, the statute (1) makes it a crime to participate in a criminal gang knowing that the members of the gang engage in an ongoing pattern of criminal activity; and knowingly and willfully direct or participate in the commission of an underlying crime ... committed for the benefit of, at the direction of, or in association with a criminal gang.

The prosecutor had to prove that the defendant was a member of a criminal street gang. Challenges to successful prosecution included:

* Proving the existence of the particular street gang.

* Proving that the particular street gang was actively participating in the underlying enumerated offenses.

* Proving that the activity had been ongoing and was not historical. (Maryland does not have a state RICO Act, although approximately 35 states do have a statute similar to 18 USC 1961, et. seq.)

* Proving the elements in of the statute.

QUALIFYING A GANG EXPERT

Prosecutors should consider using gang experts, who can play a vital role in the establishment of the existence of a particular street gang. A gang expert has specialized knowledge, training, and experience about gangs...