Daubert and Terrorism

In Alexandria, Virginia, Judge Leonie Brinkema is hearing argument today on the admissibility of testimony from the prosecution's terrorism expert in the trial of Ali al-Timimi, an Islamic scholar who stands accused of calling on followers to fight American soldiers in Afghanistan. The expert, Evan Kohlmann, is a 26-year-old law school graduate who has billed himself as the "Doogie Howser of terrorism." The Richmond Times-Dispatch has the story.

Meanwhile, the Sixth Circuit has issued a decision upholding the admissibility of testimony from a different government terrorism expert in another prosecution. See United States v. Damrah, No. 04-4216 (6th Cir. Mar. 15, 2005) (Norris, Gibbons, & Todd, JJ.). From the Sixth Circuit's opinion:

Damrah objected to expert testimony from the government's witness Matthew Levitt. Damrah sought an order excluding Levitt's testimony, or, in the alternative, a hearing to determine the admissibility of Levitt's proposed testimony under Federal Rule of Evidence 702, Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993), and Kumho Tire Co. v. Carmichael, 526 U.S. 137(1999). After conducting a hearing, the district court denied Damrah's motion. Damrah's primary objection to Levitt's testimony was that it relied heavily on inadmissible hearsay in violation of Federal Rule of Evidence 703 and that Levitt's testimony did not satisfy the requirements of Federal Rule of Evidence 702, which dictates that an expert may offer an opinion "if (1) the testimony is based upon sufficient facts of data, (2) the testimony is the product of reliable principles and methods, and (3) the witness has applied the principles and methods reliably to the facts of the case." A district court's evidentiary rulings will not be reversed absent a clear showing of abuse of discretion. United States v. Hickey, 917 F.2d 901, 904 (6th Cir. 1990).

Damrah's arguments are without merit. Levitt did not present any inadmissible hearsay to the jury, and the materials he relied on met the requirements of Rule 702. The district court stated: "Given the secretive nature of terrorists, the Court can think of few other materials that experts in the field of terrorism would rely upon. Indeed, Damrah himself failed to suggest any." The district court also described Levitt's methodology as "the gold standard in the field of international terrorism." The district court did not abuse its discretion in allowing Levitt's testimony.

This is the first appellate decision we remember seeing on the admissibility of expert testimony about terrorism. To that extent, it plowed virgin legal ground. The government prosecutors in the al-Timimi case may not be able to cite it, though. It's unpublished.

Update 3/19/05: Apparently the al-Timini prosecutors had enough to cite already. The testimony is in.

Update 8/21/05: We see now that on June 14, 2005, the Sixth Circuit released its opinion in Damrah for publication.