Massachusetts Supreme Court: Error to Exclude Expert Testimony on Significance of Tattoo to Support Claim of Self-Defense
The Supreme Judicial Court of Massachusetts found a trial court abused its discretion when it excluded an expert who sought to testify as to the cultural significance of a tattooed symbol on an alleged victim’s arm.
The Court’s order was issued in an appeal brought by Adrian Hinds. He was indicted on two counts of assault and battery by means of a dangerous weapon resulting in serious injury that stemmed from a March 2016 fight.
Hinds, who is Black, was involved in a fight with Miranda Arthur-Smith and Nathanial Cherniak, both of whom are white. Hinds contended that Cherniak initiated the attack out of racial animus and that he acted in self-defense after he confronted them while they were vandalizing his Porsche. The dispute, Hinds said, was because Cherniak thought Hinds was a drug dealer, and he wanted Hinds to sell his product. Hinds refused because he said he did not deal in drugs. The victims, however, testified that Hinds attacked them.
To support his argument, Hinds sought to introduce the testimony of two experts to support his theory of the case that Cherniak and Arthur-Smith were motivated to attack him by racial animus. Corroborating his theory was a 211 tattoo on Cherniak’s arm, which is used by the white supremacist prison gang known as the 211 Crew.
The trial court, however, cited reliability grounds as reason to exclude the testimony of Hinds’ proposed experts Dr. Sophie Bjork-James and Dr. Jesse De La Cruz. After Hinds was convicted on both counts and sentenced, he appealed.
The Supreme Judicial Court noted that admission of expert witness testimony is governed by the so-called Daubert-Lanigan standard. Commonwealth v. Camblin, 86 N.E.3d 464 (Mass. 2017). It explained that under this framework, the trial judge serves as the gatekeeper of the evidence and is responsible for making a threshold determination of whether the proposed expert testimony is both relevant and sufficiently reliable for the jury to hear. Commonwealth v. Hoose, 5 N.E.3d 843 (Mass. 2014). The judge determines whether the methodology used by the proposed expert satisfies the reliability requirements for admissibility; this is a question of fact for the judge to decide. See Mass. G. Evid. § 104(a) (2021). However, it is not the judge’s role to decide whether to credit the expert’s ultimate opinion; instead, that is for the jury to decide. See Commonwealth v. Roberio, 700 N.E.2d 830 (Mass. 1998). “The relevance threshold for the admission of evidence is low.” Commonwealth v. Arroyo, 810 N.E.2d 1201 (Mass. 2004). Evidence of motive need not be conclusive; it only needs to provide a link in the chain of proof. Commonwealth v. Watt, 146 N.E.414 (Mass. 2020).
Hinds argued the incident was a “race-based attack and that he acted in self-defense.” The Court found the testimony of Bjork-James and De La Cruz was relevant not to show that Cherniak belonged to a gang but that “he may have had some affinity for white supremacist ideologically.” In short, the expert testimony “went to whether Cherniak was motivated to attack the defendant based on his alleged white supremacist beliefs,” according to the Court. The Court determined the testimony of Bjork-James and De La Cruz was relevant to proving that Cherniak’s tattoo was associated with a group that espouses white supremacist beliefs. That testimony when combined with Hinds’ testimony would have provided the jury with a link between the tattoo and the motive for Cherniak to attack Hinds. Thus, the proffered testimony was relevant.
Next, the Court turned to the reliability of the experts, which is regarded as the “touchstone of admissibility.” Commonwealth v. DiCicco, 25 N.E.3d 859 (Mass. 2015). That inquiry requires application of the standards set forth in Daubert v. Merrell Dow Pharma, Inc., 509 U.S. 579 (1993), and Commonwealth v. Lanigan, 641 N.E.2d 1342 (Mass. 1994), which the Court referred to as the Daubert-Lanigan standard. Under that standard, courts should consider, as nonexclusive factors: (1) whether the method “can be (and has been) tested,” (2) whether it “has been subjected to peer review and publication,” (3) its “known and potential rate of error,” (4) “the existence and maintenance of standards controlling the technique’s operation,” and (5) whether the method has achieved “general acceptance” within the relevant community. Daubert.
The Court explained that the original Daubert factors were formulated for the so-called hard sciences. The Daubert-Lanigan standard differs when applied to the soft sciences. See Canavan’s Case, 733 N.E.2d 1042 (Mass. 2000). Because the experts were social scientists offering testimony on soft sciences, or nonrepeatable behavior, the nonexclusive factors of that standard require flexibility with special attention being paid to the criteria of reliability that different disciplines develop, according to the Court.
In examining the reliability of Bjork-James, the Court noted Hinds offered her testimony “not to tie Cherniak and his tattoo specifically to the white supremacist movement but rather to provide testimony on the significance of the number 211 to the principles of white supremacy more generally.”
The trial court, however, focused on the font used for the tattoo, finding it did not match the samples that Bjork-James relied upon to reach her conclusions. The Supreme Judiciary Court said this intruded upon the role of the jury. The “judge imposed too high a burden on the testimony’s admissibility, asking that it persuade him of factual conclusions rather than merely demonstrate a reliable methodology.” Therefore, the Court ruled it was error to exclude Bjork-James’ testimony.
“The same is not true for De La Cruz,” the Court said. It found that he failed to outline a reliable method for assessing the symbolism of how gangs identify themselves. While De La Cruz may have been qualified to identify the number 211 to white supremacist gangs and that he had a reliable method to uncover this significance, he failed to articulate a foundation for such a method, the Court concluded. Thus, the Court ruled that excluding his testimony was not error.
The Court then found the error of excluding Bjork-James’ testimony was prejudicial error. Absent her testimony, Hinds’ only evidence that Cherniak initiated the attack due to racial animus was his own testimony. “When the creditability of the victim’s testimony is so central to the Commonwealth’s case, the significance of expert testimony concerning the victim’s motives for starting the fight is equally important,” the Court wrote.
Accordingly, the Court reversed the judgments against Hinds and remanded the case for a new trial consistent with the Court’s opinion. See: Commonwealth v. Hinds, 166 N.E.3d 441 (Mass. 2021).
As a digital subscriber to Criminal Legal News, you can access full text and downloads for this and other premium content.
Already a subscriber? Login
Related legal cases
Commonwealth v. Hinds
|Cite||166 N.E.3d 441 (Mass. 2021)|
|Level||State Supreme Court|
|Cite||733 N.E.2d 1042 (Mass. 2000)|
|Level||State Supreme Court|
Commonwealth v. Roberio
|Cite||700 N.E.2d 830 (Mass. 1998)|
|Level||State Supreme Court|