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St. Mary's Law Journal

Abstract

The mechanisms developed by the criminal justice system addressing the criminal activities of street gangs, for the most part, have proved ineffective. The evolution of gangs, their complex structure, and multipurpose focus keep them one step ahead of law enforcement. The most recent weapon created to fight the war on gangs, the civil injunction, suffers from numerous inadequacies. One concern is that civil injunctions raise numerous constitutional concerns. Another is that these injunctions fall short of constitutional demands. Furthermore, the practical implementation of the injunction forces an analysis of the reliability of the gang expert’s testimony. This Article proposes courts exclude the testimony of a gang expert if there is no showing of substantial reliability. The opinions of gang experts regarding criminal street gangs, gang activities, and an individual’s membership in a gang are typically supported by more than the expert’s credentials. Gang experts are usually deemed qualified to give opinions regarding gangs because they have extensive training and have observed gangs and gang activities. Their testimony, however, is limited by the reliability of the data and the methods they use to collect that data. The criteria adopted by the State of Texas which determines gang membership—much like the criteria used in other jurisdictions across the nation—is notable for its circuitry and its potential for abuse, not its reliability. And although gang experts are generally experienced and trained, repeated observation of an event without inquiry, analysis, or experiment does not turn a mere observer into an expert. Accordingly, their testimony regarding gang membership does not meet the reliability requirements of Texas Rule of Evidence 702 and should be excluded.

Publisher

St. Mary's University School of Law

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