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Gang Expert?s Testimony, in Response to Improper Hypothetical, Should Have Been Excluded

By Walin & Klarich

The California Court of Appeal recently held that Killibrew error [People v. Killibrew (2002) 103 CalApp.4th 644] resulted from a gang expert?s response to an improper hypothetical question posed by the prosecutor. The rule set forth in Killibrew is that an expert witness may not offer an opinion on what a particular defendant is thinking. The Court in this case noted that the prosecution cannot circumvent that rule ?by asking the expert a hypothetical question that thinly disguises the defendants? identity.? In this case the Court held the Killibrew rule was violated because the only difference between the hypothetical and the facts of the case were the names of the parties. Although the rule was violated, the Court nevertheless affirmed the defendants? convictions, finding that the error was not prejudicial...continue to full post

Full post as published by Southern California Criminal Defense Blog on June 23, 2010 (boomark / email).