Confronting experts

Now that the current slew of confrontation cases are decided it’s time to regroup.

Let’s start with my former evidence professor, Paul Gianelli (a former Army JA).

Confrontation, Experts, and Rule 703

Paul C. Giannelli Case Western Reserve University – School of Law
20 J.L. & Pol’y 443 (2012)
Case Legal Studies Research Paper No. 2012-24

The United States Supreme Court has decided several cases concerning expert testimony and the Confrontation Clause. This essay argues that confrontation issues are complicated by Federal Evidence Rules 703 and 705, which changed the common law rules. Altering the common law made sense in civil cases because civil rules of procedure provide extensive discovery, which ensures basic fairness. In contrast, discovery in criminal cases is quite limited, which undercuts an accused’s ability to meaningfully confront prosecution experts at trial.

And, the ever resourceful and confrontation-litigant Professor Richard D. Friedman, “Thoughts on Williams, Part I: Reasons to Think the Impact May be Limited,” blogPost, 19 June 2012.

For an interesting pre-decision discussion.

Williams v. Illinois and the Confrontation Clause: Does Testimony by a Surrogate Witness Violate the Confrontation Clause?

Ronald J. Coleman Georgetown University Law Center

Paul F. Rothstein Georgetown University Law Center
January 22, 2012

Georgetown Public Law Research Paper No. 12-007

This article comprises a four-part debate between Paul Rothstein, Professor of Law at Georgetown Law Center, and Ronald J. Coleman, who works in the litigation practice group at Cleary Gottlieb Steen & Hamilton LLP, on Williams v. Illinois, a Supreme Court case that involves the Confrontation Clause, which entitles a criminal defendant to confront an accusing witness in court. The issue at hand is whether said clause is infringed when a report not introduced into evidence at trial is used by an expert to testify about the results of testing that has been conducted by a non-testifying third party.
The debate, originally published on Public, includes the following parts:

  • Part 1: Ronald J. Coleman: Dexter’s Dilemma: Rule 703 Does Not Violate the Confrontation Clause
  • Part 2: Paul Rothstein: Surrogate Witnesses Just Won’t Cut It: A Response to Ronald Coleman
  • Part 3: Ronald J. Coleman: More on Williams v. Illinois: A Response to Paul Rothstein
  • Part 4: Paul Rothstein: Williams v. Illinois: Responses to Coleman’s Arguments