Triangulating Testimonial Hearsay: The Constitutional Boundaries of Expert Opinion Testimony
43 Pages Posted: 21 Apr 2008 Last revised: 19 Jun 2012
Over thirty years ago, in a Comment in the Harvard Law Review, Laurence Tribe created what he termed the "testimonial triangle" as a framework for analyzing difficult definitional and theoretical issues raised by the hearsay rule. Today, a new hearsay problem demands a new triangle. The widespread use of expert testimony at trial has altered the shape of criminal and civil litigation. Much expert testimony rests, in whole or in part, upon inadmissible hearsay. Worse, the inadmissible hearsay is often hidden: through the vehicle of the expert's opinion, stealth hearsay sneaks into the jury box under the constitutional radar. This practice raises fundamental questions about our most basic constitutional Due Process rights, about the proper role of expertise at trial, and indeed about the very nature of our system of jury decision-making. It also forces us to question the conflicting paradigms of trust and distrust that bear on the treatment of expert opinion testimony. By drawing together three heretofore disconnected areas of constitutional and evidentiary law, this Article offers some answers to these questions. The Confrontation Clause of the Sixth Amendment, the constitutional right to trial by jury, and the Daubert framework for admissibility of "expert testimony triangulate" at the point of expert reliance on inadmissible testimonial hearsay. In constructing a new expert testimonial triangle, this Article follows Tribe's example, seeking to reframe the problem of expert opinion testimony and offering a new lens through which to understand the larger issues.
Now the important thing and the only important thing to notice is that the expert has taken the jury's place if they believe him.
Keywords: expert testimony, confrontation clause, testimonial hearsay, jury role, Daubert
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