Judge Jack Nevin wrestles with the challenge presented by the Confrontation Clause requirements of Crawford and gang experts who are called to testify based on hearsay statements by the unavailable and uncross-examined. Judge Nevin, in the most recent issue of the Seattle University Law Review, describes the problem as follows:
“(This part of the article) will expose the intersection of gang expert testimony and the Confrontation Clause, showing how gang expert testimony can often be based on testimonial hearsay and therefore violate both the spirit and letter of Crawford. This Part will show how the growing area of gang expertise and the principles of Crawford are on a collision course. The end product of this course is the admission of testimonial hearsay by way of expert testimony, all with a view toward conviction rather than ensuring a defendant’s right to effectively cross-examine the witnesses providing evidence against him. As a result, hundreds, if not thousands, of alleged gang members nationwide have been, and will be, convicted without the benefit of cross-examination and, therefore, a fair trial. . .”
The article explores:
• Crawford v. Washington and the Right to Confrontation
• The Emergence of the Officer/Expert in Gang Cases
o The Scope of Rules 702 and 703
o The Rise of the Gang Expert
o The Trouble with Gang Expert Testimony
• The Intersection of Gang Expert Testimony and the Requirements of Crawford
• A Formula for Reconciling Gang Expert Testimony with Crawford.
To read the entire article – click here.