Thursday, November 26, 2015

New cert petitions on the "expert witness end-run"

At least two cert petitions are currently before the Supreme Court on the question of whether, or when, a prosecution may present the substance of an out-of-court testimonial statement through an in-court witness who bases an opinion in part on that statement.  One is Griep v. Wisconsin.  The State originally declined to file a brief in opposition to the petition, but the Court requested one.  Here are links to the petition, to the brief  in opposition, and to the reply brief.  The second petition, on which I am counsel of record, is Katso v. United States.   The Government has twice asked for extensions of the time to file a brief in opposition; its time now expires on January 4.  You can read the petition by clicking here


Tim Provis said...

The third petition is Roalson v. Wisconsin, 15-6037 which has been given the same treatment by the Court.

Paul said...

If the expert wouldn't have the opinion (that the prosecution is seeking to introduce) in the absence of the testimonial statement, the court should not allow him to offer his opinion.

But if the expert would still hold his opinion even he couldn't consider the testimonial statement, the court should permit his opinion to be presented to the jury.

The question of whether the expert's opinion is based entirely (or partly) upon one or more testimonial statements is easily resolved by the court during a pre-trial hearing.

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