The Confrontation Clause and Expert Testimony: Recent Developments in the Supreme Court and the New York State Court of Appeals

Crawford v. Washington promised an entirely new approach to the Confrontation Clause. Under the regime of Ohio v. Roberts, the scope of the Clause was essentially coterminous with the rule against hearsay. A nontestifying declarant’s out-ofcourt statements, including her written reports, were generally admissible in New York because of the state’s expansive view of the exceptions to the hearsay rule. Crawford, however, overruled Roberts and seemed to signal transformative change, because it explicitly severed the link between the Clause and the scope of the prohibition against hearsay. The decisive inquiry became whether an out-of-court hearsay statement is testimonial in character, rather than whether it is reliable. If a statement is testimonial, and is offered for its truth, its introduction is prohibited in the absence of an opportunity to cross-examine the declarant, regardless of its evidentiary admissibility. In deciding to abandon the Roberts approach, Justice Scalia’s opinion in Crawford condemned the Roberts Court’s willingness to “leave the Sixth Amendment’s protection to the vagaries of