Tuesday, September 17, 2019
Seventh Circuit Finds Proper Exclusion of Expert Testimony on "Charismatic Groups" in Tax Protestor Trial
Federal Rule of Evidence 702 states that
A witness who is qualified as an expert by knowledge, skill, experience, training, or education may testify in the form of an opinion or otherwise if:
(a) the expert’s scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue;
(b) the testimony is based on sufficient facts or data;
(c) the testimony is the product of reliable principles and methods; and
(d) the expert has reliably applied the principles and methods to the facts of the case.
So, assume that a defendant filed seven nearly identical tax returns, each falsely claiming that she was entitled to a $300,000 refund, and is charged with making false claims against the United States and theft of government funds. If the defendant was a member of the the Moorish Science Temple of America, should she be allowed to call a forensic psychologist to testify that the defendant was a member of a "charismatic group"—a cult-like organization that indoctrinates its members? That was the question addressed by the Seventh Circuit in its recent opinion in United States v. Truitt, 2019 WL 4315001 (7th Cir. 2019).
In Truitt, the facts were as stated above. Specifically,
In March 2009 [Cathy] Truitt joined the Moorish Science Temple of America, which views itself as a sovereign “ecclesiastical government.” The Moorish Temple teaches that neither the states nor the federal government have any authority over its members, who instead purport to hold something akin to diplomatic immunity. Before initiation into the Temple, members fill out a series of forms designed to put the government on notice of their new nationality. After a ceremony, the Temple provides members with Moorish identification cards, license plates, and other documents backing up their purported change in citizenship.
At trial, Truitt sought to call forensic psychologist Dr. Michael Fogel to testify about the Moorish Science Temple of America being a "charismatic group" to bolster her argument that she lacked the required mens rea to commit the crimes charged. The district court judge, however, deemed this testimony inadmissible under Federal Rule of Evidence 702, and the Seventh Circuit agreed, concluding that the district court properly excluded this testimony
because Dr. Fogel’s experience as a general psychologist in no way qualified him to answer specific questions about the religious themes at play in this case. Nor did his experience with other kinds of group dynamics prepare him for the question at hand. Everyone agrees that Dr. Fogel had no experience with charismatic groups, so the judge quite reasonably concluded that he was not qualified to give this proposed testimony.The judge also ruled that Dr. Fogel’s methodology was inadequate and thus not scientifically reliable. This ruling too lies well within the judge’s discretion. The “overarching subject” of Rule 702 analysis “is the scientific validity—and thus the evidentiary relevance and reliability—of the principles that underlie a proposed [expert] submission. The focus, of course, must be solely on principles and methodology, not on the conclusions that they generate.”...Daubert identifies a number of factors a court might consider, including whether the methods have been tested or subjected to peer review and whether they are generally accepted in the field....But the list is not exhaustive....Here the judge was concerned that Dr. Fogel did little to learn about the Moorish Temple other than interviewing Truitt herself. That’s a fairly significant shortcoming in a case about group dynamics: Dr. Fogel’s definition of a “charismatic group” requires evaluating whether there was a “shared belief system,” a “high level of social cohesiveness,” and “a strong influence to comply with the group’s behavioral norms.” The judge reasonably concluded that an evaluation of those three factors required at least a minimal inquiry into the experiences of other group members. Yet Dr. Fogel spoke to Truitt alone. Granted, he attempted to contact Queen and one other elder. But he made no effort to contact anyone else associated with the Moorish Temple. Compounding the problem, Truitt had a strong self-interest in convincing Dr. Fogel that the church could and did trick her into filing false claims.
Curiously, Dr. Fogel omitted these steps in the analysis even though Dr. Marc Galanter—the expert in charismatic groups whose work Dr. Fogel relied on most to learn about the subject—would have done far more. When Dr. Galanter identifies charismatic groups in his own work, he first circulates written surveys, then conducts extensive interviews with a large number of members, and finally spends significant time observing the group in action. The judge was justifiably concerned that Dr. Fogel relied so heavily on Dr. Galanter’s work but inexplicably applied a watered-down version of his methodology.