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Crawford v. Washington and Expert Testimony: Limiting the Use of Testimonial Hearsay
By Steven Yermish
In March 2004, the United States Supreme Court issued its landmark decision in Crawford v. Washington,1 in which it abrogated a permissive standard of admissibility for hearsay under the Confrontation Clause established in Ohio v. Roberts.2 In its last term, the Court followed Crawford with Davis v. Washington,3 in which it refined its definition of what constitutes a testimonial statement applied in the context of 911 calls and statements to the police at the scene of a crime.
Yet, Crawford and Davis leave many questions unanswered. The most intriguing and complex issue involves the application of Crawford to the testimony of experts. Lower court opinions to date, in several different areas of expert testimony, have yielded conflicting decisions. There are conflicts with respect to defining testimonial hearsay as well as to the admissibility of testimonial hearsay in support of an opinion. This article will focus upon the threshold issue of Crawford, the testimonial statement, and its
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