Despite the Supreme Court’s efforts in the 2004 Crawford v. Washington case to narrow the parameters of the Sixth Amendment right to confrontation, lower courts vary widely in interpreting when the Confrontation Clause applies. Subsequent 5–4 and 4–1–4 decisions of the Court have raised more questions than answers, especially in the context of expert testimony. In analyzing the decade of cases, this Article finds that confusion abounds in three primary areas: (1) which witnesses are actually witnesses against the accused, (2) whether the evidence must be accusatory in order to be testimonial, or must be both accusatorial and testimonial, and (3) whether and when testifying experts may rely upon the reports of other non-testifying experts. The Court has had many petitions for certiorari that would have provided opportunities to clarify the scope of the doctrine as to such evidence as autopsy reports, machine-generated data, and reports identifying substances, samples, and DNA profiles, but accepted none involving expert witness testimony. While the Ohio v. Clark decision in June 2015 provided some guidance on the first question of who counts as a witness against the accused, there was little clarification on the accusation issue, nor on any of the other issues involving expert witnesses.

This Article explains the post-Crawford convolutions of Confrontation Clause analysis, and identifies the remaining questions in evaluating whether a statement is testimonial, with special focus on the use of expert witness opinion testimony. Part IV concludes this Article with modes of analysis for Confrontation Clause issues going forward. Given the circuit splits on what counts as testimonial evidence in various areas, this Article addresses three proposals: (1) to treat quasi-percipient expert witnesses differently than other experts, (2) to consider certain expert reports and other types of statements nontestimonial so that traditional hearsay exceptions will be adequate for admission, and (3) to provide specifically tailored instructions for jury trials involving non-disclosure of expert basis evidence. As long as the Supreme Court declines petitions that provide opportunities to clarify the scope and parameters of the right to confrontation, this Article provides some guidance for lower courts.

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