A Critical Approach to Expert Witness Reports: Limits, Possibilities, and Horizons

Christopher Loperena (The Graduate Center, CUNY) and Mariana Mora (CIESAS, Mexico City) interviewed by Sandra Odeth Gerardo Pérez (CIESAS, Mexico City)

After three decades of multicultural neoliberal policies, anthropologists participating in legal activism are engaging in a series of critical reflections on the limits and possibilities of cultural expertise and anthropological expert knowledge in legal arenas. As an anthropologist who has recently begun to participate as an expert witness in legal cases, specifically on cases of grave human rights violations committed against Central American migrants in Mexico, I recently interviewed Christopher Loperena and Mariana Mora, both of whom, along with Aída Hernández, coordinated the special section on cultural expertise in the September 2020 issue of American Anthropologist.

I began by asking them to reflect on the “contradictory effects” that involve the production of “expert knowledge,” particularly those effects that have been most relevant to the communities in which they worked and which have been subjected to diverse forms of dispossession.

Mariana Mora (MM): Our special section focuses more on expert witness reports involving territorial disputes by Indigenous and Afro-descendant peoples and communities, but it is important to situate those cases within a broader spectrum of cases that are requiring expert witness reports or cultural affidavits, such as those involving grave human rights violations, gender violence, and migrant asylum. So, the first thing I want to state is that our interest is to spark critical reflections on the role of anthropologists and anthropological expert knowledge within this broader field of legal activism.

I want to contrast the land-dispute case of Indigenous Ch´ol peoples living in the communal lands, or ejido, of Tila (the case I detail in my article for the special section), with another expert witness report, elaborated by an interdisciplinary group of experts, including myself, for the case of the forty-three students of Ayotzinapa, in the state of Guerrero, Mexico, victims of forced disappearance in September 2014. The contrast allows us to understand some of the contradictions, possibilities, and limits of expert reports.

In the Tila ejido’s case, the community assembly decided to emit their own verdict rather than await the decision of Mexico’s Supreme Court; their actions made our role as anthropologists and our expert witness report irrelevant. The case was one of the first times the Supreme Court judges requested a cultural affidavit to interpret a case—what thus appeared to lay the ground for a heightened role of anthropological expert knowledge in the legal arena. But the ejido assembly decision rendered evident that Ch´ol Indigenous authorities are the experts to establish their own territorial claims, not the anthropologist as cultural intermediary. If we, as expert witnesses invited to provide knowledge on Ch´ol territorial claims, had not been actors within the legal arena, I think the weight and the implications of the assembly decision would not have been so evident. As a counterweight, our “uselessness” as anthropologists affirmed that Indigenous authorities, by exercising their right to self-determination, are the direct interlocutors with the state. In doing so, Ch´ol authorities redirected a political juncture away from favoring the role of anthropological expert knowledge and towards resituating themselves as key political actors in the legal arena.

On the other hand, the Ayotzinapa’s psycho-social impact expert witness report, “Yo sólo quería que amaneciera”: Impactos psicosociales del caso Ayotzinapa (“I only wanted the sun to rise”: The psycho-social impacts of the Ayotzinapa case) had an important ripple effect for the family members of the disappeared and of the students assassinated and those injured in their interaction with state officials. At the time, the state was trying to avoid locating the students and uncovering what happened to them, fundamental elements that form part of the right to truth and move on to the phase of reparations for the families of the forty-three disappeared students, reparations that in a very restricted sense only implied economic compensation, which in essence was a way of buying the family members’ silence and deactivating their political mobilizations.

The Mexican state attempted to force the version that their children had been killed and eliminate from public debate that the permanence of state impunity is in fact a continuation of the grievance itself and magnifies the effects of forced disappearance. In that expert witness report, we rendered evident the expanded dimensions of the effects of the case in the health, lives, and socioeconomic well-being of family members and student survivors. The report became a highly useful tool for the mothers and fathers of the students, along with the human rights organizations that represent them, to shift the terms of engagement with the Mexican government in various spheres, including in public hearings before the Inter-American Commission on Human Rights. When we first presented the report to them, the family members of the forty-three students even said that it was difficult for them to read the expert report because it was an affirmation of how they have felt. The report, by putting into words their grievances, was a type of mirror to be held not only in front of them, at a moment when they were so immersed in searching for their children that were not focusing on elaborating those narratives, but to society as a whole. In this case, there was a very clear political-emotional-subjective impact of the report at a key political juncture.

Christopher Loperena (CL): For me, the experience of serving as an expert witness in the Inter-American Court case of the Garifuna Community Punta Piedra against the state of Honduras raised several important contradictions. Initially, I was disquieted by the idea of serving as an expert, recognizing that my participation would harden the hierarchy that exists within the court, wherein Indigenous peoples are positioned as the alleged victims, the judge is the arbiter of justice, and the anthropologist is the intermediary. But at the same time, I understood that it was important to play this role, to don the title of “cultural expert,” as a means of fulfilling my longstanding commitment to the community.

Another important contradiction stems from how ethnographic insights are folded into the legal decision itself, which can end up reifying the notion of Indigenous culture upon which the court adjudicates the case (an insight I develop more fully in my article for the special section). The judges decide whether or not Indigenous people can be recognized as legitimately Indigenous and therefore able to access certain rights before the court and in relation to the state. It’s particularly interesting to think about this in contrast to the case Mariana worked on and the decision of the Ch’ol leaders to forego the expert report that she and her colleague were compiling. By asserting their right to self-determination, they relegated the so-called experts to the margins of that process. Whereas in the Garifuna case, the Inter-American Court’s verdict in favor of the community paradoxically serves to buttress the sovereign power of the state and its ability to say “here exists an Indigenous people and these are the rights they are deserving of, or undeserving of, on account of their presumed cultural difference.” For instance, the Honduran attorney general strongly objected to the conferral of maritime rights to Garifuna, on the basis that these resources constitute public goods and thus are for the “use of the entire nation.” But the exploitation of maritime resources by industrial fisheries is permitted and deemed necessary for state development goals. So, we can see numerous contradictions with regard to how the law is interpreted and applied to benefit the sovereign claims of the state over the rights of Black and Indigenous peoples.

Moreover, the Honduran government has failed to comply with the reparations called for by the Inter-American Court. This is particularly troubling given a spate of violent repression and murders of Garifuna land activists in recent months, including the kidnapping of four Garifuna community members from Triunfo de la Cruz on July 18, 2020. The government’s failure to properly investigate and prosecute those responsible threatens to further jeopardize land-tenure security in Garifuna communities.

IACHR Public Hearing for Garifuna Community Triunfo de la Cruz v. Honduras, May 20, 2014. (Photograph by Christopher Loperena)

Sandra Gerardo (SG): What methodological, analytical, and narrative strategies have you deployed to respond to these contradictory effects? What contributions of the different anthropological (self-)critiques and methodological considerations did you use, for example, regarding the politics of listening, the use of the testimonial genre, or the critique of positivist objectivity?

CL: As Mariana mentioned, it is important to think about the diversity of cases in which we are being called to participate as experts. I have also participated as an “expert” in cases involving Honduran asylum seekers in the United States, and in particular for Garifuna claimants. Entering into the legal arena as an anthropologist within US asylum courts raises a whole series of contradictions that are politically and epistemologically salient and that require that we engage in a process of continuous negotiation with the lawyers, the claimants, and ourselves regarding how to render anthropological knowledge intelligible for the court.

In 2015, we had a very rich debate about these precise issues in a workshop coordinated by Aída Hernández, Mariana Mora, and me at CIESAS in Mexico City. One of the central questions we sought to answer regarded the methodological and narrative strategies we used in preparing our expert witness reports, recognizing that bringing anthropological knowledge to bear on legal matters is potentially treacherous. My approach to writing the report was crucially informed by notions of feminist objectivity, which many US scholars of color have contributed to vis-à-vis their critiques of anthropological empiricism. I sought to think in dialogue with these critiques, to question the very premise of objectivity and the positivist logics upon which we are recognized as experts and therefore invited to participate in the legal process. The tension between my critique of the epistemological nature of the work and my decision to serve as an expert in spite of my apprehensions was difficult to reconcile. But I did the work anyway because I understood that my “expertise” could have important implications for the people and communities my work engages.

One of the things I try to do in my expert reports is to carefully situate my claims in the larger socio-political, socio-historical, and ethnographic context, which, it turns out, is very difficult to accomplish within the confines of an expert witness report. Because we are trying to speak across disciplines, from the anthropological to the legal and from the legal to the anthropological, it can be quite difficult to communicate the ethnographic nuance of our research to the court, and which we rely on to humanize or complexify the categories we traffic in as anthropologists, for instance “culture” or “community.” I also look to Aída’s and Mariana’s contributions, in which they talk about dialogic methodologies as means of disrupting the hierarchies I spoke to earlier.

MM: In the workshop we organized in Mexico City, one of the elements that Chris and other participants really emphasized is a methodological focus on the procedural, as it is key not only to rupture an ahistorical essentialist construction of identity but also to allow us to render visible the role that structural racisms form part of the grievances. Part of what is methodologically difficult in these types of expert witness reports is that there is profound racial injustice at play, but as anthropologists we are being invited to render our expert opinion on identity and cultural alterity, not racial injustices. That situates our legal activism in a complex conundrum that has important methodological and narrative considerations, particularly those that allow us to highlight how racial injustices may form part of the grievances, even if they are being expressed in ways that don’t necessarily lean on the use of the term “racism” but are rather expressed through other narratives and concepts elaborated by the communities we are being asked to work with.

I also think of the work of other scholars who participated in that workshop—for example, Aura Cumes, a Cakchiquel academic—who, when invited to do expert reports, are immediately delegitimized before the justice system precisely for being Indigenous women experts. Cumes analyzed her participation in a case of gender violence against minors and how she was positioned within broader structures of power. The legal arena questioned whether, as an Indigenous woman scholar, she was going to defend the girl against the community or support community authorities and disadvantage the girl. She navigated these tensions by drawing from feminist epistemologies and an intersectional analysis that both allowed her to recognize the role of community authorities vis-à-vis the state and support the minor’s grievance. In this sense, decolonial antiracist feminist methodologies have been central to much of the work of the authors of this dossier and the Desacatos publication.

The other methodological decision central to our anthropology training is to question the assumptions behind commonsense perceptions of reality. The effects of such critical inquiries proved central to what Rita Laura Segato described in our workshop on her cultural affidavit for the Sepur Zarco case, also in Guatemala. The few truth commissions in Latin America that have incorporated a gendered perspective have tended to operate on the assumption that the greatest grievance that women can suffer are acts of sexual violence (it is similarly an assumption deeply rooted in feminist thought). The case of Sepur Zarco involved fifteen Q’eqchi Indigenous women survivors who were victims of sexual enslavement and sexual violence by the military during the country’s civil war. Rather than assuming that expert knowledge needed to prioritize the impacts of sexual violence, Segato questioned that inertia of feminist knowledge production. She paused to carefully listen to how women survivors were narrating the stories of what it implies to work the land and give the harvest of that land to the military, not to their children or their husbands or fathers. She identified that the pain transmitted from having to harvest the fruits of the earth, the fruits of community labor, and being forced to turn over to the military the fruit of all the collective spiritual labor that implied cultivating a cornfield was not secondary to the trauma of sexual violence but rather central to the survivors’ understanding of the grievances. The critical methods provided by the discipline of anthropology potentially allow us to prepare expert witness reports that move beyond the confines of legal frameworks or even certain assumptions of political thought—in this case, certain feminist constructions. It potentially allows us as anthropologists to shed light on other senses of the grievance and of justice.

SG: We have already been alerted to the limits that expert reports have as they are framed within state conceptualizations of justice. In that sense, there is much that “remains outside the cultural affidavit,” even with the critical narrative and methodological and epistemic considerations that are described at length in the special issue. One of these is undoubtedly the notion of “justice” itself. What elements of these alternative constructions of justice have you identified as unable to fit within hegemonic legal fields? In your opinion, where does the impossibility of listening to these alternative constructs lie?

CL: I want to take up one of the points that Mariana made, in relation to the question of justice. If, for example, we understand these disciplines, anthropology and the law, as being rooted in colonial histories, then what kind of justice can be achieved through these epistemic frameworks and through these idioms of political engagement? The issue of structural racism is an excellent starting point to think through these larger questions. The real problem is how to make visible issues of structural racism in the process of writing and participating as an expert. This is something I confronted in the case of Punta Piedra and in cases involving Honduran asylum seekers here in the United States. In the asylum cases, I have worked mostly with Garifuna claimants who are formulating their claims on the basis of anti-Black racism in Honduras, which is not an individual but a structural issue. In many instances, racism manifests in policies and development proposals that are ostensibly inclusive of Black and Indigenous peoples. So, how do you make that visible to the court and to the judge in the scope and aesthetic form of an expert witness report? We know as anthropologists that race is a cultural construction, but racism is a fact, and anti-Black racism is a historically constituted structural reality that Garifuna confront in their daily lives and in their ongoing struggle to defend their lands from expropriation. The question is: How do we capture and communicate the historical complexity of these processes of racialization in the expert report?

This is a great challenge for us as anthropologists, and which overlaps with this question of justice: Is it possible to achieve antiracist justice within that framework? I remember very clearly the first asylum case I worked on, in which the lawyer told me, “We do not want to know the history of anti-Black racism in Honduras. The judge won’t be able to grasp the larger claims around structural racism, or your anthropological framing of these issues.” But I insisted, because for me it’s fundamental. Of course, it is also necessary to recognize that making these arguments in the context of asylum law can have the paradoxical effect of supporting notions of US exceptionalism.

MM: I also think of the work of Black critical race scholars, such as Edmund T. Gordon, Juliet Hooker, Keisha-Khan Perry, Bettina Ng’weno, Tianna Paschel, and Kiran Asher. They have made important critiques of the frameworks that prioritize cultural difference and blur the claims of racial justice and claims against structural racisms. Afro-descendant communities that are demanding their collective rights to the territory generally have to appeal to an identity within the established frameworks of an Indigenous cultural identity, which then pushes to the margins elements of racial justice and other ways of establishing territorial claims that do not fit in these very limited definitions of culture as established by legal frameworks. What some of these scholars highlight is that the collective rights of Indigenous peoples have been privileged over Afro-descendant communities’ collective rights claims, and they discuss at length the political implications for social struggle.

As Chris says, this leads us to critically reflect on the role of the anthropologist in cultural affidavits. As an anthropologist working on Indigenous territorial claims, one cannot just focus on only cultural differentiation and alterity without deeply analyzing and understanding Afro-descendant peoples’ struggles and claims in the Americas, as this expanded framework allows you to critically identify and respond to that which does not “fit” within limited definitions of cultural difference. To do otherwise means losing the methodological opportunities and losing sight of the many other ways a sense of justice is being enunciated and exercised through struggle. To critically reflect on what is being left out of cultural expert witness reports, one needs to not only consider the struggles of Indigenous people but also those of Afro-Indigenous and Afro-descendant peoples and communities.

In the case of Tila, I believe that the backdrop of the grievances lies not only in the recognition of cultural alterity as Indigenous people but a profound sense of racial injustice. The claim is against those “outsiders,” locally referred to as kaxlanes, mestizos, those of white European descent, who established themselves as plantation owners on Ch´ol territory, against those who have historically sustained mestizo privilege as expressed through the dispossession of the Indigenous territory. And this cannot be “resolved” through claims to “cultural alterity.”

CL: I would like to add one thing, because I want to reiterate Garifuna are a Black Indigenous people and it is very difficult for the court or for the law to understand that union, Black Indigenous. The law itself wants to disarticulate the complexity of that subject formation and define it as either you are Black, as in Afro-descendant, or you are Indigenous. I think that is one of the ways you can see clearly how difficult it is to aspire for racial justice within a framework that doesn’t understand or isn’t even able to see or comprehend something like Black Indigeneity. If we meaningfully grapple with the legal and cultural construction of racial categories, then we must also rethink how we approach identity-based rights claims.

SG: We are facing limits in law for listening to all that anthropology can offer grievances, contexts, broader subjects that do not fit in the framework. And yet there are cases, and I think that by speaking of cases we are already reducing history to terms of the epistemologies of the law, but even when we speak of cases of “victory.” But after several experiences, what do you think should be the role of the anthropologist in continuity with the people’s struggle?

MM: What you ask invites us to place legal activism and our role as anthropologists within the broader field of public anthropology. Current historical conditions require us to deeply delve into the public role of anthropology, and when I refer to the public role, I am not referring to the highly restricted liberal public sphere, but rather insisting that the role of anthropological knowledge cannot be reduced to academic consumption. Instead, it needs to be situated in dialogues and as part of the political formulations enacted with the social movements with whom we work and participate. The contexts of extreme violence, of racism and patriarchal violence, forcefully propel us to ask and respond to these broader sets of interrogations.

Your question similarly invites us to understand our role in legal activism within hemispheric public anthropological debates. That is why it is important to also recognize that this dossier has a North–South dialogue. We are talking about anthropology in the United States and the discipline of anthropology in Latin America. How these critical reflections are grounded depends of these different trajectories of the discipline. So, in this contribution our intent was to help strengthen these bridges so as to provide shifting insights that can guide us as anthropologists situating in diverse social geographies to be able to more effectively respond to, and transform, current historical conditions.

CL: Your question also encourages us to reflect on the role of anthropologists within society, beyond the legal field, and beyond the expert witness report. That is, what other types of political work are we able to engage in as anthropologists? I think of this in relation to the work of Indigenous and Afro-descendant communities, where we see that they are not simply fighting from the legal field. Rather, the legal fight is one tiny component of a larger political struggle in which these actors are engaged and through which they advocate for justice. These are much broader political processes that go beyond the legal sphere and that are fundamental to the defense of territory, such as struggles against racism and against gender-based violence.

Another topic that I want to address before we conclude is the issue of ethnographic refusal, which was has been theorized Audra Simpson. This is important to discuss because when we enter the legal field as experts we have commitments to the communities and individuals our work engages and multiple goals that we are trying to advance at the same time that require careful negotiation of what we choose to say and how we say it. Not all of what we live in the field, not all the knowledge that we are receiving in the process of doing our work, needs to be included or made intelligible for institutions like the court.

SG: A link, a part in the peoples’ struggle, but also in the role of the anthropologist and legal activism. There is another thing that I rescue from your work, and that is to think about the value of collective work; the work I do with victims of massacre could not be done if it were not in a collective. I would like to know your reflections about this collective work, and the emotions of ourselves and our interlocutors.

MM: Chris has spoken on the contributions of feminist debates and methodologies. Certain strains of feminist anthropology in the 1970s and 1980s had strong dialogues with psychoanalysis, I would say that now we need to establish dialogues with the contributions of psycho-social accompaniment, which brings us in the field of the body, and of emotions, and understanding psychology not as something individualized or pathologized but as part of broader racialized and gendered social structures. It is necessary to recognize that often our expertise occurs in contexts of profound individual, collective, and intergenerational trauma. Our political responsibility is enormous. In this sense, I return to Christopher’s ethnographic refusal because it helps us reflect on several questions: How do we ask? What do we ask? What cannot be asked? If the goal is not defined only by winning a legal case or not but on the possibilities of transforming a grievance into a sense of justice for the affected population and across sectors of society, then it is fundamental to reflect on how intersubjective interactions, including in the methodological considerations behind an expert witness report, form part of that transformation.

In the team of social anthropologists I work with in Mexico City, we have focused on these elements and have established deep dialogues with social psychologists that use an intersectional analysis to design research methods that avoid revictimization—for example, how to end an interview with a victim without leaving open wounds, what types of follow-up conversations or interactions are necessary with that person, and how to reconcile the time frames required by the legal arena with those of anthropological scholarship and those of community struggles or of victims. These are the types of elements that need to be at the center of anthropological dialogues; to not do so means we are missing opportunities to situate anthropological legal activism, specifically, and public anthropology, more generally, within broader intersubjective transformations in moments of profound social trauma and suffering. This implies that social and collective healing from trauma needs to be integrated into broader collaborative efforts that include, but are not limited to, the production of expert knowledge. In contexts of deep social trauma, the critical production of knowledge forms part of broader processes of collective antiracist and antipatriarchal  healing.

CL: I totally agree. The goal is not simply to win a case. The work we are attempting to do, and the goals of that work, extends beyond these legal cases because communities are seeking structural transformations. The goal of our political engagements as anthropologists is to try to transform, or even to abolish (to borrow from more recent disciplinary debates), the grounds upon which we are making claims as anthropologists and to come up with something in dialogue with our interlocutors and with the communities we are engaging with that could potentially produce a structural reorientation. I see Mariana speaking to these issues in her comments. It’s crucial to understand that participating in the court or in the legal arena is constrictive and what one can accomplish within that space, even if it’s a successful case, is extraordinarily limited and may in some ways reinforce the forms of subjectification that you and that the people and communities you are working with are fighting against. We see that over and over again. So, what Mariana mentioned, and the questions we raised collectively in this collection, can really lead us beyond the space of that meeting between anthropology of the law into something much broader and potentially transformative.