Historical expert testimony comprised of out-of-court statements may be admitted if presented in the course of assessing historical facts: First Circuit

Historians may have to play a role as expert witnesses where factual determinations depend on the evaluation of social, political, economic or cultural situations in the relevant past. Like all expert witnesses, historians must satisfy the requirements of Rule 702 of the Federal Rules of Evidence before their testimony can be admitted. The Court of Appeals for the First Circuit recently, United States of America v. Prudence Kantengwa (2015 U.S. App. LEXIS 4864), had the opportunity of evaluating the testimony of a historical expert in a matter involving issues related to crimes of international and political character.

The defendant, who is a member of a prominent political family allegedly involved in the Rwandan genocide, appealed her conviction by the District Court of Massachusetts for perjury and obstruction of justice based on false statements made in connection with her 2004 application for asylum in the United States and subsequent removal proceedings. One of the issues on appeal was whether the district court abused its discretion in admitting the testimony if a professional political scientist and historical expert on the Rwandan genocide, Dr. Timothy Longman, as to the existence of a roadblock in front of Hotel Ihurio in Butare before the defendant’s departure at the end of May 1994. The defendant argued that Dr. Longman’s opinion that there was a particular roadblock in a particular location at a particular time was based merely on the repetition of out-of-court statements of various individuals interviewed by him and thus liable to be excluded as it amounted to “little more than testimonial hearsay”.

The First Circuit Court acknowledged that a party cannot call an expert simply as a medium for introducing hearsay statements, but evaluating the nature of Dr. Longman’s testimony, the Court felt that it was not merely a reproduction if the statements of the individuals interviewed in connection with the various events in Butare between April and May 1994. The Court understood the expert testimony to be based partly on the consistency of the accounts of the interviewees, along with the timing of other political events, deeming it capable of comparing these to the conflicting versions of other details about the events in Butare. The Court contrasted the particulars of the present case with those in Marvel Characters, Inc., v. Kirley [726 F.3d. 119 (2d. Cir. 2013)] on the ground that the testimony of the historical experts in Marvel had been correctly excluded because their conclusions were merely assessments of the attitudes of freelance artists regarding Marvel’s general practices towards its artists, and sought to speculate on the motivations and intentions of the parties involved. In contrast, the Court found that Dr. Longman’s testimony was intended to be an assessment of a particular historical detail and not merely of the states of mind of certain individuals, and thus, the district court was well within the limits of its discretion in admitting the expert testimony as evidence.