This Article will discuss how gang expert reliance on testimonial hearsay violates Crawford. Both the spirit and letter of Crawford are violated when the information relied on by law enforcement has not passed the “crucible” of pretrial cross-examination mandated by Crawford to assure reliability. Moreover, this Article will offer a way to reconcile ER 703 with the requirements of Crawford.
Part II of this Article will discuss the history and application of Crawford and its expansion into virtually every area of testimonial hearsay. Part III will discuss the evolving and growing area of gang expert testimony as a “science.” Part IV will expose the intersection of gang expert testimony and the Confrontation Clause, showing how gang expert testimony can often be based on testimonial hearsay and therefore violate both the spirit and letter of Crawford. This Part will show how the growing area of gang expertise and the principles of Crawford are on a collision course. The end product of this course is the admission of testimonial hearsay by way of expert testimony, all with a view toward conviction rather than ensuring a defendant’s right to effectively cross-examine the witnesses providing evidence against him. As a result, hundreds, if not thousands, of alleged gang members nationwide have been, and will be, convicted without the benefit of cross-examination and, therefore, a fair trial. Finally, Part V will devise a test for excluding that portion of gang expert testimony that relies on testimonial hearsay derived without the benefit of cross-examination in violation of Crawford.
Hon. Jack Nevin, Conviction, Confrontation, and Crawford: Gang Expert Testimony as Testimonial Hearsay, 34 SEATTLE U. L. REV. 857 (2011).