Evidence: The Tactical Choice under Federal Rule of Evidence 703

The Alternatives

Under Rule 703, there are three ways of providing the expert with the facts that you want the expert to opine about. 1 McCormick on Evidence §§ 14–16 (7th ed. 2013). As at early common law, the expert can base an opinion on personally observed facts. In the words of Rule 703, if the doctor saw the plaintiff’s injuries firsthand, the doctor may base an opinion on “those perceived” facts. Even today, the jury usually finds the expert’s opinion most persuasive when the opinion rests on the expert’s personal knowledge.

However, in many cases, it is impossible or inconvenient for the expert to acquire firsthand knowledge of the case-specific facts. The common law acknowledged this problem by developing the hypothetical question. Before calling the expert as a witness, the attorney presents testimony by witnesses who observed the case-specific facts, for instance, facts A, B, and C, or who can provide admissible hearsay testimony as to the facts. When the expert later takes the stand, the attorney initially poses the hypothesis: “Professor, please assume facts A, B, and C.” The attorney next asks: “Based on those facts, can you form an opinion about the diagnosis of the plaintiff’s illness?” This practice allows the law to capitalize on the expert’s special ability to draw inferences even when the expert lacks personal knowledge of the facts. Rule 703 continues this practice by authorizing an expert to rely on “facts . . . made known to the expert at . . . the hearing.” Although the opinion is admissible, the judge subsequently instructs the jury that if they disbelieve the testimony about any essential element of the hypothesis—namely, A, B, or C—they should disregard the opinion.

Although the invention of the hypothetical question technique was a step forward, it did not go far enough for Rule 703’s drafters. The rule now permits an expert to consider so-called secondhand reports. Rule 703 allows an expert to rely on an otherwise inadmissible out-of-court report if the report is “of a type reasonably relied upon by experts in the particular field. . . .” It ordinarily suffices for the expert to testify that it is a customary practice within his or her specialty to consider reports from such sources, as when a forensic pathologist weighs an oral report from a toxicology laboratory in formulating an opinion about cause of death.

The drafters advanced two arguments for their innovation. First, they noted that in the real world experts often “make[] life-and-death decisions” based on such reports. Second, they contended that proving up the elements of a traditional hypothesis frequently necessitates “the expenditure of substantial time in producing and examining various authenticating witnesses.” Most commentators applauded the drafters’ decision to admit opinions resting on secondhand reports. They added that the innovation did not violate the hearsay rule because the reports were put to a non-hearsay use. The use was a variation of the basic non-hearsay theory that the statement is relevant to show the effect on the state of mind of the hearer or reader. For example, the jury must decide whether the pathologist’s cause of death opinion is reliable, and the pathologist’s receipt of the oral toxicology report shows that the opinion is well grounded.

The Tactical Choice—Prior to Williams v. Illinois (U.S. 2012)

As a young professor of evidence, I was excited when Rule 703, containing this novel provision, took effect in 1975. I assumed that most trial attorneys would abandon the traditional hypothetical question and embrace secondhand reports. However, as the years passed and I discussed the practice with litigators, it became clear that the reports of the death of the hypothetical question were “greatly exaggerated.”

On reflection, I came to understand why many litigators prefer to use the hoary hypothetical question. Their biggest enemy at trial is confusion; they want the jury to clearly understand key testimony. Using the hypothetical question enables you to control the expert and specify the facts the expert relies on. Even if the preceding lay testimony was a bit vague, in framing the hypothesis, the attorney can sharply identify facts A, B, and C. That advantage of the hypothetical over secondhand reports became even more pronounced in 2000. In that year, Rule 703 was amended to announce a general rule that when the expert relies on a secondhand report that does not fall within a hearsay exception, the contents of the report “shall not be disclosed to the jury.”

While many attorneys still prefer the hypothetical question even after the enactment of Rule 703, there are exceptional cases in which the preference breaks down.

In some cases, attorneys opt for secondhand reports because doing so is a big time or money saver. The secondhand report alternative can be attractive if calling the witnesses needed to prove all the elements of the hypothesis is prohibitively expensive. Or the attorney might fear that calling those witnesses will significantly prolong an already lengthy case-in-chief.

There is one exceptional situation, though, in which the secondhand report option is even more attractive. Suppose that a witness necessary to prove the hypothesis is either highly impeachable or obnoxious or both. Putting that person on the stand could taint the jury’s perception of the overall credibility of the proponent’s case. Rule 703 appears to allow the proponent to obviate the need to call that person to the stand and eliminate the risk that that person will sour the jury on the proponent’s case. As the rule is worded, the expert does not even have to name the potential witness whom the attorney wants to distance from the case.

At this point, you might be thinking that the preceding analysis is incomplete. The cross-examiner could force the expert to identify the potential witness. Surely, in the next phase of the case, the opponent could then introduce evidence impeaching that person’s credibility. The rub is that Rule 806 controls your right to impeach out-of-court declarants. By its terms, Rule 806 gives you the right to impeach a declarant whose “hearsay statement . . . has been admitted in evidence.” Most courts have construed Rule 806 as coming into play only when the out-of-court statement “is admitted [for a hearsay purpose] to prove the matter asserted.” 5 Mueller & Kirkpatrick, Federal Evidence § 8:138, at 253 (3d ed. 2007). As previously stated, until recently the conventional wisdom has been that secondhand reports are admitted as non-hearsay. If so, Rule 806 does not apply, and the opponent has no right to impeach the source of the report. The opponent is left with the risky choice of calling the obnoxious person as the opponent’s own witness—a choice the opponent understandably forgoes in the vast majority of cases.

The Effect of the Supreme Court’s 2012 Decision in Williams

Williams v. Illinois, 132 S. Ct. 2221 (2012), is a criminal case. Ultimately, one five-justice majority (Justice Thomas in concurrence and a four-justice plurality led by Justice Alito) ruled that it did not violate the Sixth Amendment’s Confrontation Clause to allow a government DNA expert to refer to a private laboratory’s DNA report. However, in dictum, another five-justice majority (Justice Thomas and four dissenters led by Justice Kagan) rebuffed the conventional wisdom that secondhand reports are admissible as non-hearsay. In no uncertain terms, Justice Thomas and the dissenters stated that secondhand reports are necessarily used to prove the truth of the assertions in the report. In their view, if the expert’s opinion is conditioned on the truth of the report, it is absurd to think the report is admitted for any other purpose.

Whenever any five justices of the United States Supreme Court take a position as forcefully as Justice Thomas and the four dissenters did, lower courts tend to sit up and pay attention. Thus, Williams creates the possibility that, in the foreseeable future, lower courts will jettison the theory that secondhand reports are admitted for a non-hearsay purpose. Kaye, Bernstein & Mnookin, The New Wigmore: Expert Evidence § 4.12.7 (Supp. 2014).

If that happens, an expert’s reliance on a report will trigger Rule 806, and the opponent will have a right to attack the credibility of the report’s source. The upshot is that Williams may strengthen the general preference for the old-fashioned, tried-and-true hypothetical question.