Proving Terrorism — Rules 702, 703 and Website Evidence — Rule 803(8) Official Reports

The plaintiffs’ expert in Boim v. Holy Land Foundation, 2007 U.S. App. LEXIS 29864 (7th Cir. Dec. 28, 2007), relied in part on internet website postings in which the terrorist organization Hamas took credit for the murder of plaintiffs’ decedent. The panel majority ruled that the expert failed sufficiently to elucidate the basis for his conclusion that the website statements were attributable to Hamas and, therefore, held them insufficiently authenticated. It read Rule 703 inversely to its text to suggest that it supported the need for the further elaboration, while acknowledging that the Rule (as amended effective December 1, 2000), is actually structured to keep hearsay from the jury, even though this is likely what the expert is relying on:

Rule 703 now expressly permits the expert to disclose such information to the jury, provided the court is satisfied that its helpfulness in evaluating the expert's opinion substantially outweighs its prejudicial effect...Nonetheless, a judge must take care that the expert is not being used as a vehicle for circumventing the rule against hearsay...). Where, as here, the expert appears to be relying to a great extent on web postings to establish a particular fact, and where as a result the factfinder would be unable to evaluate the soundness of his conclusion without hearing the evidence he relied on, we believe the expert must lay out, in greater detail than Paz did, the basis for his conclusion that these websites are in fact controlled by Hamas and that the postings he cites can reasonably and reliably be attributed to Hamas.

Note that the opinion actually relies more on Rule 702 than 703, the majority holding that the District Court is unable to perform its gatekeeping function if it does not know the basis for the expert’s conclusion that the website is reliable:

With respect to Hamas's culpability for the murder, our point is not that an expert like Dr. Paz is foreclosed from relying on websites controlled by Hamas and/or Arab-language documents like Hinawi's judgment of conviction [i.e., the judgment of conviction of one of the two murderers by the Palestine Liberation Authority] for information about who killed David Boim and whether they did so on Hamas's behalf. Our point is that when the plaintiffs rely solely on expert opinion to establish such facts, as the Boims [plaintiffs] have on appeal, the expert's declaration must reveal enough about his sources of information to permit the court to assess the reliability of his conclusions. For an expert to say simply that a given website is known to be a Hamas website, for example, such that the statements found on that website may be attributed to Hamas, without explaining how or why the site is known as a Hamas website, does not permit a court to exercise its gatekeeping function under Federal Rule of Evidence 702 to ensure that the conclusions the expert has drawn from that website are sufficiently reliable

Reliance on Official Reports for Their Contents. The Rule 803(8) point of interest in the opinion is that the Court acknowledged the propriety of relying on official government reports for their contents to prove the stated conclusions about terrorists and terrorist acts, but held that individual statements contained in the report — made by witnesses or third parties under no governmental or other duty to tell the truth — must each be analyzed independently to ascertain whether they satisfy a hearsay exception or exemption.

[T]he Watson memorandum [the admissible government report] repeats a number of statements from informants and other individuals (in some instances unnamed) who, in contrast to Watson, were under no official duty to report the matters addressed in their statements. Rule 803(8) deems a public report admissible based on the notion that its official author knows what he is talking about and will state the facts accurately: "[i]n effect, it is presumed that public officials perform their tasks carefully and fairly, without bias or corruption, and this notion finds support in the scrutiny and risk of exposure that surround most government functions."

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