State Of Arizona, Plaintiff, Vs. James Arthur Ray, Defendant.
Case No. V 13000r201080049
Hon.Warren Darrow
Division PTB
State of Arizona v. James Arthur Ray, Case No. V1300CR201080049, Defendant James Arthur Ray’s Motion in Limine (No.9) To Exclude Testimony of Rick Ross
MEMORANDUM OF POINTS AND AUTHORITIES
I. INTRODUCTION
The prosecution seeks to call as an expert witness Rick Ross—a self-proclaimed expert in "destructive cults, controversial groups and movements." Expert Witness Report of Rick Ross, dated Jan. 5, 2011 ("Ross Report") (Exhibit A). According to the State, Ross's testimony will explain to the jury why participants felt they could not leave the sweat lodge during the 2009 JRI ceremony. In particular, Ross will testify that Mr. Ray used specialized "techniques" of "neuro¬linguistic programming" (NLP) and "large group awareness training" (LGAT) to "control" participants in the 2009 JRI sweat lodge, causing them to remain inside the sweat lodge "notwithstanding becoming ill." Letter from Bill Hughes to Truc Do, Jan. 12, 2011 (Exhibit B); State's Bench Memorandum Regarding 404(b) Acts (filed 10/21/10).
Ross's proposed testimony fails multiple independent hurdles of admissibility and must therefore be excluded. First, Ross's proposed testimony is irrelevant. Ross's opinions on supposed psychological techniques address only one question: why participants felt they could not leave the sweat lodge. But that question is not in issue at this trial. Not a single witness will say they did not feel free to leave the sweat lodge. Indeed, the evidence will show that participants felt free to leave the sweat lodge at any time, were in fact free to leave, and did leave when they wanted to. And many who left chose to return to finish the sweat lodge ceremony. Because Ross's testimony hinges on a counterfactual scenario, it is irrelevant and has no probative value whatsoever. This basic failing is dispositive of the State's attempt to introduce Ross's opinions.
Second, Ross's proposed testimony is barred by Arizona Rule of Evidence 702. An expert witness, even if properly qualified, may not opine on how general behavioral tendencies manifested themselves in the case under review. See State v. Montijo, 160 Ariz. 576, 580 (App. 1989); State v. Moran, 151 Ariz. 378 (1986). And Ross, in any event, is not qualified to testify regarding the mental state of JRI participants. By his own admission, Ross has not spoken to a single participant from the JRI sweat lodge and has never met Mr. Ray.(1) His only source of information regarding the sweat lodge comes from media accounts and a PowerPoint presentation provided by the Yavapai County Attorney.(2) This fact also casts doubt on whether Ross's opinion could be admissible under Rule 703, which requires that opinions be based on materials that experts in the field would "reasonably rel[y] upon."
The State cannot surmount the glaring Rule 702 deficiencies in Ross's opinions regarding JRI participants by portraying Ross as an expert in the alleged psychiatric and psychological phenomena of "LGAT" and "NLP" who can simply "educate the jury" in these concepts. State's 1/12 Letter, Exhibit B at 1. Even assuming these concepts—for which Ross could provide no accepted definition—could be considered a legitimate subject of expert testimony, Ross surely is not qualified to educate others in their supposedly psychological mechanisms. Ross has no education or training other than a high school degree, has no specialized training in counseling or mental health matters, and has never worked with the psychologists and psychiatrists that his report cites.
Third, even if Ross's proposed testimony could clear all of these hurdles, it must be excluded pursuant to Rule 403. The prejudice attendant to introducing a cult expert at trial is plain. It is yet another attempt by the State to try this case on the basis of Mr. Ray's character, rather than the merits of its evidence. And given the lack of any connection between Ross's opinions and the facts in evidence, such prejudice would be profoundly unfair. Ross's testimony must be excluded.
Moreover, the testimony — irrelevant and inflammatory speculation by an individual whose worrisome agenda and troubled past far outrun his virtually non-existent qualifications — would degrade the integrity of this Court and imperil Mr. Ray's right to a fair trial. As discussed in further detail below, Ross also serves as a "consultant" who performs "interventions" and "cult deprogramming." Some of his work has been violent and unlawful, resulting in criminal prosecution and civil sanction.