Expert Evidence and the Confrontation Clause After Crawford v. Washington

Abstract

In 2004, in Crawford v. Washington, the Supreme Court recast Confrontation Clause jurisprudence, shifting the lens of inquiry from reliability to whether or not the evidence in question was 'testimonial,' meaning, roughly, whether the statements was made in circumstances that would suggest its likely future use as prosecutorial evidence. This Article, written for a symposium dedicated to Crawford, examines the substantial area of intersection between the Confrontation Clause, post-Crawford, and expert testimony. Whenever prosecutors attempt to adduce expert information through certificates of analysis (in essence substituting an affidavit for testimony), and whenever testifying experts disclose, in the course of their testimony, statements made by others in settings that were arguably testimonial (such as when one expert testifies about forensic test results actually conducted and reported by another), courts must decide whether this evidence is barred by Crawford. This area of intersection has become a serious practical concern for prosecutors, forensic scientists, and judges. Most (though by no means all) of the numerous state and federal courts that have grappled with these issues have endeavored to find ways around Crawford's dictates and to continue to permit the evidence. Unfortunately, most of the arguments proffered by these courts are deeply intellectually unsatisfying.

In this Article, I survey and critique the various stratagems employed by courts for thinking through this area of intersection. I argue that most of the justifications put forward by judges to eliminate these forms of evidence from Crawford's purview are unpersuasive, including the argument that when experts disclose statements upon which they have relied, they do so for a non-hearsay purpose; the claim that Crawford creates a per se business records exception; the argument that cross-examination of the expert can substitute for cross-examination of the declarant; and the effort to distinguish fact from opinion in order to argue that the former is, at least in the expert-context, non-testimonial. A more successful argument some courts have offered is that only evidence that is accusatorial - that is, that makes an accusation against someone in particular - should be implicated by the Confrontation Clause. This argument, however, only makes sense if narrowly drawn, and thus a great deal of expert evidence may still run afoul of Crawford. In the final section of the paper, I put forward possible ways simultaneously to respect the core values that animated Crawford while somewhat limiting Crawford's reach, but these, I suggest, can only be done through implicitly or explicitly returning us to a concern with both reliability and availability, inquiries which Crawford apparently took off the table.

Keywords: criminal law, confrontation clause, Crawford v. Washington, expert testimony