Testimonial Hearsay as the Basis for Expert Opinion: The Intersection of the Confrontation Clause and Federal Rule of Evidence 703 after Crawford v. Washington

Authors

Ross Andrew Oliver

Abstract

The Supreme Court recently returned to the Framers' intent behind the Confrontation Clause and overruled precedent which allowed a court to admit hearsay against a criminal defendant upon a finding that the hearsay was particularly reliable. Now, a court may admit testimonial hearsay against a criminal defendant only if the defendant has an opportunity to cross-examine the declarant. This Note examines how this decision may affect expert witness testimony offered by the prosecution in a criminal trial.

Under the Federal Rules of Evidence, expert witnesses may rely on-and disclose to a jury-inadmissible hearsay that forms the basis of their opinions. Such hearsay, though, must be a type of information reasonably relied upon by similar experts in the field, which leads some courts to consider it particularly trustworthy. This Note highlights that because "particularly trustworthy" is no longer sufficient to satisfy the Confrontation Clause, a risk exists that an expert's testimony will violate a criminal defendant's constitutional rights if the expert essentially repeats testimonial hearsay to the jury while adding little of his own expertise or analysis.

Recommended Citation

Ross Andrew Oliver, Testimonial Hearsay as the Basis for Expert Opinion: The Intersection of the Confrontation Clause and Federal Rule of Evidence 703 after Crawford v. Washington, 55 Hastings L.J. 1539 (2004).
Available at: https://repository.uclawsf.edu/hastings_law_journal/vol55/iss6/5