Several courts have held that Crawford does not destroy this end run. But now the issue has arisen in a particularly stark form, the one that Roger predicted, in People v. Thomas, 2005 WL 1377744 (Cal. App. 4th Dist. June 10, 2005; certified for publication June 30, 2005) . Melvin Thomas was charged with active participation in a criminal street gang. Robert Kwan, a sheriff's officer, testified as an expert on gangs. Among other testimony, Kwan offered the opinion that Thomas was a member of a gang called E.Y.C. Kwan had various sources for drawing this conclusion. According to the court:
Kwan testified that he had talked with other E.Y.C. members about defendant, andThe court held that this testimony was acceptable.
they had told him that defendant was a member of E.Y.C. and that defendant's
moniker was "Little Casper" or "Villain." Kwan had also talked with members
of rival gangs about defendant's membership in E.Y.C.
The basis-for-expert-opinion veneer seems to me to be too thin in this context. I am not certain whether any general rule is appropriate, but I don't think that the general rule should be: "If evidentiary law allows the prosecution to present an expert who opines as to a conclusion and in support of that conclusion testifies to matters communicated to the expert, there is no confrontation problem." Perhaps the opposite general rule would work: "There is no difference for confrontation purposes between offering a statement to prove the truth of what it asserts and offering it in support of an opinion that an assertion made by the statement is true." Note that this rule would have teeth only if the statement is testimonial. Arguably it was in Thomas: From what I gather, Kwan was not working undercover. Apparently, though, he was able to gain the confidence of the gang members to a great degree, and perhaps there is an argument that from their perspective their conversations seemed like idle chatter.
Addendum, Feb. 9, 2007: Please note that I have commented on the general subject matter of this entry in two later ones, The Expertise End Run and People v. Goldstein and The Not-for-the-Truth End Run.