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Univ. of South Carolina School of Law

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Thursday, December 27, 2007

The Experts?: Ninth Circuit Find Statutory Language Based Off Of Rule 702 Is Void For Vagueness

The Kurdistan Workers Party , a.k.a., Partiya Karkeran Kurdistan ("PKK") and the Liberian Tigers of Tamil Eelam ("LTTE") engage in a wide variety of unlawful and lawful activities.  Based upon their unlawful activities, the Secretary of State designated them as "foreign terrorist organizations."  Six organizations, a retired federal administrative law judge, and a surgeon sought to provide support only to the noviolent and lawful activties of PKK and LTTE, such as helping Kurds living in Turkey and Tamils living in Tamil Eelam in the Northern Eastern provinces of Sri Lanka to achieve self-determination.

They stayed their hands, however, because pursuant to 18 U.S.C. Section 2339B(a)(1) of the Antiterrorism and Effective Death Penalty Act, as amended by the Intelligence Reform and Terrorism Prevention Act,  "[w]hoever, within the United States or subject to the jurisdiction of the United States, knowingly provides material support or resources to a foreign terrorist organization, or attempts or conspires to do so, shall be fined under this title or imprisoned not more than 15 years, or both, and, if the death of any person results, shall be imprisoned for any term of years or for life."

Pursuant to 18 U.S.C. Section 2339A(b)(1), "the term 'material support or resources' means any property, tangible or intangible, or service, including currency or monetary instruments or financial securities, financial services, lodging, training, expert advice or assistance, safehouses, false documentation or identification, communications equipment, facilities, weapons, lethal substances, explosives, personnel (1 or more individuals who may be or include oneself), and transportation, except medicine or religious materials."  According to 18 U.S.C. Section 2339A(b)(3), "the term 'expert advice or assistance' means advice or assistance derived from scientific, technical or other specialized knowledge."

Instead of providing support, the organizations, judge, and surgeon, inter alia, challenged these sections, claiming that they were void for vagueness because they could be construed to criminalize activities protected by the First Amendment.  A district court found that these sections were void for vagueness, and the Ninth Circuit affirmed this decision in Humanitarian Law Project v. Mukasey, 2007 WL 4293310 (9th Cir. 2007).  The government had argued that the ban on "expert advice or assistance" was not vague because Federal Rule of Evidence 702 similarly defines expert testimony as testimony based on "scientific, technical, or other specialized knowledge."  The government thus contended that this definition gave a person of ordinary intelligence reasonable notice of conduct prohibited under the statute.  The Ninth Circuit disagreed, finding that inclusion of the phrase "scientific, technical, or other specialized knowledge" did not clarify the term "expert advice or assistance" for the average person with no background in law.

The question that remains, however, is whether the Federal Rules of Evidence, such as Rule 702, are confusing not only for the average person, but also for lawyers and judges.  According to Professor Joseph Kimble, they are.  Professor Kimble recently contributed to the comprehensive rewrite of the Federal Rules of Civil Procedure to make their phrasing more clear and precise.  According to Kimble, his next goal is to rewrite the Federal Rules of Evidence.  As a professor of both civil procedure and evidence, I'm not sure that I agree with Professor Kimble's new endeavor.

The Federal Rules of Civil Procedure, while certainly open to many interpretations are, to a large extent, intended to give brightline rules that inform parties of how to act in civil proceedings in United States federal courts.  On the other hand, it seems to me that the Federal Rules of Evidence are in some sense meant to be intentionally vague so that judges can have the discretion to act one way or another.  For instance, one commentator has referred to the aforementioned Rule 702 as "purposefully broad and vague" so that judges have the discretion to conclude that a wide variety of specialized testimony does or does not constitute expert testimony.  See L. Timothy Perrin, Expert Witness Testimony:  Back to the Future, 29 U. Rich. L. Rev. 1389, 1397 (1995).  That said, many of the other rules are likely less clear than they should be, and it will certainly be interesting to see whether we can make the evidentiary rules a little clearer to both lawyers and non-lawyers alike.

-CM

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