Courts nevertheless continue to adopt this theory. A recent example is Szymanski v. State, 2007 WL 2428508 (Wyo. 2007). In proving that a fire was the result of arson, the state offered the testimony of a fire inspector to a statement made to him the night of the fire by the tenant of the apartment in which the fire was set. In the statement, the tenant, who died before trial of unrelated causes, described the condition of the apartment before she left it that evening. The state supreme court forthrightly held that this statement, which was made after the fire had been extinguished and as part of an investigation into a possible crime, was testimonial. (One would not guess this from West's headnotes to the case.) Nevertheless, the court affirmed the trial court's decision to admit the evidence not for the truth of the matter asserted "but only to show what the inspector did and what information he relied upon in forming the opinion that the fire was intentionally set by human hand."
The veneer here is awfully thin. What difference does it make "what the inspector did"? And it is obvious that the statement can help support the expert's opinion only if it is deemed to be true. It seems to me undeniable that the state was asking the jury to accept the tenant's unconfronted statement as the truth, and that if the jury did not do that the statement had no substantial value for the prosecution. This is what I have called the "expertise end run", meaning that the supposed need to allow the expert to provide the basis for his opinions is being used as a means of avoiding the Confrontation Clause.
If the logic of this case holds, one can also imagine rape counselors, domestic violence counselors, and child abuse counselors testifying that in their opinion a crime had been committed, and that one of the bases on which they draw that conclusion is the statement made to them by the victim, who has chosen not to come to court.
It is clear that, to prevent serious undermining of the confrontation right, the Supreme Court should rule that when a statement supports an expert opinion only if it is true, then admitting the statement for purposes of supporting the expert's opinion is equivalent to admitting it for the truth of what it asserts. The conflict among the states on this issue is clear and well established. I hope the Supreme Court resolves it soon.
More generally, I believe the Court needs to impose constraints, as a matter of constitutional law, on a court's ability to admit evidence of a testimonial statement for some reason other than the truth of what it asserts. The problem the Court must come to grips with is that if there are no such constraints then lower courts will be utterly free to exercise creativity in devising flimsy not-for-the-truth theories on which testimonial statements may be admitted. Cf. David Crump, On the Uses of Irrelevant Evidence, 34 Houston L. Rev. 1 (1997) (arguing that evidence is always relevant to a given proposition). Limiting instructions will provide no genuine protection for the confrontation right. I will not explore in detail here what constraints the Court should impose; that is a subject worthy of careful thought. But here is a first crack. It seems that a court considering the confrontation issue must first ask whether the testimonial statement has substantial value in proving the proposition for which it is supposedly offered without respect to whether the statement is true or not. If the answer is negative -- as it is in the Szymanski-Goldstein type of case -- then that proposition does not offer a basis for admitting the statement. If the answer is affirmative, then the court must assess whether that value warrants the risk that the jury will, notwithstanding an instruction to the contrary, use the statement to prove the truth of what it asserts.
In a new article, Expert Evidence and the Confrontation Clause after Crawford v. Washington, 15 J. L. & Policy (791), Prof. Jennifer Mnookin lucidly critiques the expertise end run and several other strategems under which expert witnesses have often been used as conduits to admit statements that were made by others and that should be regarded as testimonial. These include treating the business records exception to the hearsay rule as an exception to the rule of Crawford; treating cross-examination of the expert as an adequate substitute for cross-examination of the declarant whose statement comes in through the expert; emphasizing the supposed impracticality of holding the evidence inadmissible in the absence of the declarant; and distinguishing between factual findings and opinions, and holding only the latter to be testimonial. Her perspective suggests the need for the Supreme Court to step into this realm soon:
In the last part of her article, though, in focusing on two particular problems, Prof. Mnookin draws back somewhat. One of these problems is that of certificates routinely performed on certain frequently used appliances, such as speed radar guns and breathalyzer kits, to ensure that they are in good working order. If, during the period for which a given test is supposed to validate that the appliance is working properly, it generates evidence supporting prosecution of a crime, must the technician who tested the appliance and prepared the report testify at trial? Courts resist the conclusion; the costs of requiring testimony are substantial, and there may be little likely benefit. Those considerations are present with respect to many routine test reports, but they do not in themselves provide a principled argument for removing the reports from the Confrontation Clause. In the case of the certificates being considered here, though, there is a principled argument: As Prof. Mnookin points out, these certificates are not prepared with a "specific criminal act" in mind.
There are already sufficiently large numbers of cases relying upon precisely
these arguments that some courts are, unfortunately, beginning not even to argue
these points with care, instead merely relying on the allegedly persuasive
authority of other courts’ reasoning. If this trend continues, it will have a
real cost: a too-thoughtless pragmatism will have trumped principled application
of the underlying principle at stake in Crawford.
A holding that for this reason the Confrontation Clause does not apply to these certificates would not, in my view, do terrible violence to the Clause. On the other hand, the certificates almost certainly were prepared with an evidentiary use in mind, with the idea that they would likely be used in some prosecution, and as a matter of principle that should be enough to characterize them as testimonial. Also, if we are going to draw a boundary of the sort favored by Prof. Mnookin, we have to be careful just where to draw it. Sometimes, especially in the domestic violence context, a victim makes a testimonial statement after one alleged criminal act, and that statement is offered with respect to a subsequent act. I think the confrontation right should still apply (though it will not always matter; if the second act is homicide; it may be that the accused forfeited the right by rendering the witness unavailable). So instead of speaking only of a specific criminal act, it would probably be better to speak also of a series of acts.
But in any event, I believe that in this context we can avoid impractical results without drawing a line of the sort advocated by Prof. Mnookin, because the whole issue is constitutionally unnecessary. Nothing in the Constitution requires the state to prove that the appliance was recently tested. If a witness testifies to the time something occurred, having noted the time on a clock shortly before or after the event, there is no precondition that evidence of the clock’s accuracy be presented, much less that it be presented in a given manner. As with the clock, so with other instruments: If the state wanted, it could just let a witness testify to the evidence generated by the appliance in question, and leave it to the defense, if it wished, to raise questions about accuracy. And if the state wished, it could require the testing agency to furnish the certificate of accuracy to the defense. If the agency complied with this requirement, and the certificate appeared in order, the defense ordinarily would have no incentive to raise the issue before the jury. But if the agency failed to comply, or if on the face of the certificate the test was untimely or the appliance was defective, that would be a tip-off to the defense and to the court that a challenge to accuracy might be worthwhile; there would of course be no Confrontation Clause objection to the defense offering either a certificate or evidence of failure to furnish one.
The second problem addressed by Prof. Mnookin at the end of her article concerns autopsy reports in homicide cases in which the defendant is not apprehended for many years after the crime. She suggests that in such a case it would be tolerable for a "substitute expert" to testify to the report. I disagree. First, let’s note that the problem is a subset of a much more general problem, of witnesses who are no longer around to testify in delayed prosecutions. And in this case, the prosecution, knowing of the potential problem, can usually protect its interests quite well. If, as will usually be the case, there is a relatively small group of prime suspects, the prosecution can give notice to each of them and hold a deposition, offering to pay attorneys’ fees. (Prof. Mnookin briefly considers a "public deposition"; whether, and under what conditions, public notice could suffice in the relatively rare case in which the eventual defendant is not identified as a suspect soon after the autopsy is an interesting question. A deposition of this sort, taken of an elderly victim rather than of an expert and with counsel appointed to represent the eventual defendant, was approved in an unpublished case decided a couple of weeks after Crawford, People v. Wilkey, 2004 WL 576659 (Mich. Ct. Apps. 2004).) Also, much of the evidentiary value of an autopsy report can be gained by high-resolution video recording of the autopsy. So long as the video can be authenticated – which should be simpler than, say, authenticating DNA samples years after the fact – a pathologist would be able to testify in court on the basis of what is apparent from the video (what she sees rather than what she has been told), and there would be no confrontation problem, or even hearsay problem, at all.
There is no doubt that in the area of expert testimony, as in other areas, careful protection of the confrontation right increases the cost of prosecution. But of course that is true generally of the confrontation right, and all the rights on which our system of criminal justice is built; one could devise a much cheaper system, but it would not be a satisfactory one. Because the confrontation right was so limp in the years before Crawford, the costs of protecting it properly are often very salient, and that is probably particularly true with respect to expert evidence, which involves recurrent practices and professionally qualified (and often expensive) witnesses. With proper preparation and the creation of appropriate procedures, the judicial system can maintain rigorous adherence to the confrontation right in this area without incurring undue expense – and thus can avoid allowing expert evidence to be a force that erodes a sturdy framework of confrontation law.