EvidenceProf Blog

Editor: Colin Miller
Univ. of South Carolina School of Law

Friday, October 26, 2007

Article of Interest: Professor Mnookin Addresses the Interplay Between Crawford and Expert Evidence

Jennifer Mnookin, a Vice Dean and Professor of Law at the UCLA School of Law, has written a fascinating forthcoming article, "Expert Evidence and the Confrontation Clause After Crawford v. Washington," for a symposium dedicated to Crawford.  This article is a must-read for professors as well as lawyers and judges as courts continue to grapple with how to apply this landmark decision.

In 2004, the Supreme Court found in Crawford v. Washington, 541 U.S. 36 (2004), that the Confrontation Clause of the U.S. Constitution is violated when hearsay is "testimonial," admitted against a criminal defendant, and the hearsay declarant did not testify at the defendant's trial, unless (1) the declarant was unavailable for trial, and (2) the defendant was previously able to cross-examine the declarant.  Essentially, hearsay is "testimonial" when the declarant made the hearsay statement with the expectation and under circumstances suggesting that the statement would eventually be used in a criminal prosecution.

Courts have had enough difficulty applying Crawford when the hearsay at issue is the statement of a lay witness.  According to Professor Mnookin, they've struggled to an even greater degree with expert evidence, which, when done in connection with a criminal case, is normally made with the expectation that it will be used at trial.  As Professor Mnookin notes, this has led and will lead to many problems under Crawford because (1) expert evidence is sometimes introduced through a certificate of analysis or its equivalent rather than live tstimony, and (2) experts sometimes want to testify about "testimonial" hearsay in the form of the information upon which they relied in foriming their conclusions.

Professor Mnookin then goes on to note how many courts have engaged in strained logic to try to allow such statements into evidence despite Crawford by arguing, for instance, (1) that the statements are not offered to prove the truth of the matter they assert and (2) that business records are per se non-testimonial.  I think that she does a top notch job of shooting down these arguments and then presents several interesting about how to reconcile expert evidence and Crawford.  I can't recommend the article more highly.  I wrote Professor Mnookin about what led her to write the article, and she responded as follows: 

"I became interested in the intersection between Crawford and Daubert in the course of researching a supplement to a chapter of a treatise for which I’m a co-author (The New Wigmore: Expert Evidence, with David Kaye & David Bernstein).  I’m quite sure that when the Supreme Court decided in Crawford to rethink Confrontation Clause jurisprudence and come up with the rough contours of the category of the ‘testimonial,’ they didn’t have issues relating to expert evidence in mind.  And yet, every bit as much as, say, interrogations by the police,  forensic science evidence is generally produced with the strong and explicit expectation is that it will be used both for law enforcement purposes and, more specifically, as evidence introduced at trial if there is one.  So it seemed to me that it would be hard to come up with a principled way to deem forensic science reports anything other than testimonial.   As I began to look closely at the many cases wrestling with these questions, I was dismayed – not surprised, to be honest, but dismayed nonetheless – to see how many lower courts, mostly state but federal too, were doing anything, anything at all to try to avoid the conclusion that these kinds of evidence were testimonial.  So I thought it would be worthwhile to take a close look at the variety of arguments these courts were making, to see if any of them actually came up with principled ways to avoid the conclusion that forensic science reports or certificates of analysis were testimonial.  This piece was an interesting exercise for me – a lot of my scholarship is historical and genealogical, and this Article, by contrast, wrestles much more explicitly with an ongoing doctrinal problem and is aimed much more squarely at judges (not that they’ll necessarily pay attention – but I can hope, right?).

There’s enough variation in how the lower courts are handling these issues, and they have enough practical importance, that it would be terrific to see guidance emerge from the Supreme Court eventually - - though until now, they haven’t granted any of the several cert petitions in the area.  When and if they do, it will be pretty interesting to see whether the Court is willing to follow through with the logical consequences of the category they invigorated, or if they don’t, whether they end up part of the way back to the sort of reliability-based framework that they were trying to leave behind. Of course, there’s a background question lurking in this area: to what extent can knowledge produced through scientific processes be understood differently from other kinds of evidence?  Many courts want to put weight on this kind of distinction, suggesting that forensic science is different, because it’s more objective, or fact-based, or routinized, or whatnot, than other non-scientific kinds of proof that might be introduced without a testifying witness.  My bottom line is that (1) these criteria all go to reliability, which Crawford supposedly took off the table as grounds for dispensing with the Confrontation right; and (2) even were we to allow ‘reliability’ back in as a legitimate criterion to some extent, we need to tread pretty carefully here, and we certainly shouldn’t just assume that forensic science is per se so reliable that Confrontation would obviously be superfluous or unhelpful."



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