
This article is the first scholarly writing to argue that when expert witnesses disclose testimonial statements in accordance with Federal Rule of Evidence 703 they do not violate the Sixth Amendment’s Confrontation Clause. Of the many distinguished scholars who have considered this issue — among them Richard Friedman and Jennifer Mnookin — all have arrived at the same conclusion: expert disclosures of testimonial statements violate the Confrontation Clause. This article, then, serves as a critique of existing scholarship, and explains why an understanding of the Confrontation Clause that permits expert witnesses to disclose testimonial statements is not only technically correct but normatively desirable.This question is of particular salience in light of a recent Supreme Court opinion, Williams v. Illinois, 132 S.Ct. 2221 (2012). In that case, a plurality of the Court held that expert disclosures of testimonial statements do not offend the Confrontation Clause when those disclosures are not offered for their truth, but for the distinct purpose of helping the jury evaluate the expert witness’s opinions. Though in my view the plurality arrived at the correct result, its reasoning has come under sharp attack. This article provides analysis of the opinion, and offers a better justification for the plurality’s position. In service of this goal, the article proceeds in four parts. In Part One, the article reviews the development of the Supreme Court’s Confrontation Clause jurisprudence, including an analysis of Williams. In Part Two, the article explains why the Court is likely to revisit the issues presented by Williams, and urges the Court to reconsider the Targeted Individual Test it announced in that case. In Part Three, the article provides an analysis of Federal Rule of Evidence 702 and explains how that rule should inform lower courts’ readings of Rule 703. The article also describes how Rule 703 disclosures are helpful to juries in light of the type of cognitive processing jurors employ in high-complexity cases. Finally, in Part Four, the article provides three tools for implementing the understanding of Rule 703 that the article proposes. The article contends that the last of these tools, the hypothetical question, has the potential to provide common ground for the Court when it revisits the issues presented by Williams.
| selected citations These citations are derived from selected sources. This is an alternative to the "Influence" indicator, which also reflects the overall/total impact of an article in the research community at large, based on the underlying citation network (diachronically). | 0 | |
| popularity This indicator reflects the "current" impact/attention (the "hype") of an article in the research community at large, based on the underlying citation network. | Average | |
| influence This indicator reflects the overall/total impact of an article in the research community at large, based on the underlying citation network (diachronically). | Average | |
| impulse This indicator reflects the initial momentum of an article directly after its publication, based on the underlying citation network. | Average |
