"Crawford does not limit the admissibility of expert witness testimony," notes the D.C. Circuit in drawing a distinction between expert testimony and "testimonial" hearsay statements in United States v. Law, 528 F.3d 888 (D.C. Cir. June 13, 2008) (per curiam) (No. 05-3091)
Under FRE 703, if the facts used are the sort reasonably relied upon by experts in the particular field for forming an opinion, the information need not be admitted (nor need it even be admissible). Under this rule, an expert may rely on hearsay statements as long as the statements are reasonably used by experts in forming an opinion. However, if the expert relies on hearsay that is "testimonial" under Crawford v. Washington, 541 U.S. 36 (2004), is the Confrontation Clause violated?
In resolving this issue, the D.C. Circuit drew a distinction between expert testimony and relating hearsay statements. In the drug trial involved in Law, a detective testified as an expert concerning the manner in which narcotics dealers operate. On appeal, the defendants claimed that the expert "formed his opinion about the typical operations of narcotics dealers over the course of thousands of interviews, and that his testimony is in reality the testimony of thousands of out-of-court ‘witnesses’ who were not subject to cross-examination."
The circuit concluded this basis for the expert’s testimony did not implicate the Sixth Amendment Confrontation Clause. As the circuit noted, the detective "testified based on his experience as a narcotics investigator; he did not relate statements by out-of-court declarants to the jury." Law, 528 F.3d at 912. The Crawford case was distinguishable. The Supreme Court’s Crawford ruling "did not involve expert witness testimony and thus did not alter an expert witness’s ability to rely on (without repeating to the jury) otherwise inadmissible evidence in formulating his opinion under Federal Rule of Evidence 703." Law, 528 F.3d at 912 (quoting United States v. Henry, 472 F.3d 910, 914 (D.C. Cir. 2007) (per curiam) (under plain error review, rejecting challenge to police detective expert testimony about the meaning of drug code words based on reliance on hearsay statements; Crawford did not involve expert witness testimony and thus did not alter an expert witness’s ability to rely on (without repeating to the jury) otherwise inadmissible evidence in formulating his opinion under Federal Rule of Evidence 703. "In other words, while the Supreme Court in Crawford altered Confrontation Clause precedent, it said nothing about the Clause’s relation to Federal Rule of Evidence 703…. Crawford does not represent an intervening change in the law regarding the admissibility of Thomas’s expert testimony.")).
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Reading too much into Law?
In reading Law, it is not clear that it resolves the question asked in the first paragraph of the blog post: "if the expert relies on hearsay that is 'testimonial' under Crawford v. Washington ... is the Confrontation Clause violated?" The opinion seems to focus not on whether the evidence used by the expert was testimonial, but rather that the expert not be a vehicle for bringing testimonial hearsay to the jury. This does not necessarily mean that the expert can not base his or her opinion on testimonial hearsay, as long as testimonial statements are reasonably used by experts in the field for forming an opinion.
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