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Week of January 31, 2000

Expert Overhaul Needed
Outdated Federal Evidence Rules Require More Than Judicial Tinkering


Paul R. Rice

Once again, the Federal Judicial Conference has merely tinkered with the machinery of evidence law, when what's needed is a complete overhaul of the expert witness rules. In the process, the conference has shown itself too willing to bow to the Supreme Court and too reluctant to acknowledge 25-year-old design flaws.

The goal of the rule drafters should be to allow the unfettered admission of otherwise inadmissible background information that experts rely on to form their opinions. How can we expect jurors to properly weigh expert testimony if they can't review all the evidence that supports those opinions?

Last month, the Federal Judicial Conference sent to the Supreme Court proposed changes to Rules 702 and 703 of the Federal Rules of Evidence. Rule 702 defines who is qualified to give expert witness testimony; Rule 703 identifies what that testimony may be based upon.

The draft revisions to Rule 702 are not substantively troubling. The conference's Evidence Rules Advisory Committee proposes to rewrite the rule to reflect the Supreme Court's decision in Daubert v. Merrell Dow Pharmaceuticals Inc., 509 U.S. 579 (1993). But the advisory committee has acted like an inferior judicial panel bound by Supreme Court precedent. As long as the justices' evidentiary interpretations are not based on constitutional principles - as they are not in Daubert - the committee is free to take a different path by simply revising the rules.

And sometimes wholesale replacement of a rule, such as Rule 703, is the only appropriate remedy.

The Expert's Role

To fully understand Rule 703's problems and the inadequacies of the committee's proposed revisions, one must remember the roles of the jurors and the expert witnesses who testify before them. The jury is the sole independent finder of facts relative to the dispute at issue. The role of the expert witness is to assist the jury in this fact-finding role. Classically, experts have done this by taking the evidence that the jurors have been permitted to hear and suggesting conclusions that could be drawn.

Under common law, before the expert could testify, the court first had to determine that her assistance was necessary for the jury to properly perform its fact-finding function. Today, expert testimony is admissible if it merely assists jurors.

Before 1974, an expert could only consider facts that were admissible and admitted into evidence. If the expert were not aware of these relevant facts from first-hand observation, the facts were usually presented to the expert in the form of a hypothetical question. These questions had to recite only facts that had been admitted into evidence. Based on the assumption that those facts were true, the expert was asked if she had an expert opinion on the particular technical or scientific matter in question. Inadmissible evidence could not be part of the hypothetical ques-tions because inadmissible evidence could make the expert's answer logically irrelevant to the dispute before the jury.

The adoption of Rule 703 in 1974 fundamentally changed the expert's role at trial. The rule's second sentence provided that if evidence relied upon by the expert in forming her opinion were "of a type reasonably relied upon by experts in the particular field in forming opinions or inferences upon the subject, the facts or data need not be admissible in evidence" (emphasis added).

Permitting experts to rely on inadmissible evidence changed their role from an aid to a substitute for the trier of fact. The experts could make findings based on inadmissible evidence and propose that their conclusions be adopted by the jury even though the jury might never hear all the evidence supporting the experts' opinions. In other words, experts may testify about conclusions they could not have made had they been one of the jurors who heard only the admissible evidence presented at trial!

Thus, the role of expert witnesses now is more akin to "super 13th jurors" who consider evidence that the others cannot hear, and who advocate conclusions based on their personal credibility rather than the evidence formally admitted in the judicial proceeding.

Bad Medicine

The illogical application of Rule 703 is similar to the absurd treatment of medical experts under common law. When medical doctors testified, they were permitted to testify and rely upon statements that patients had made for purposes of medical treatment, including patients' statements about current symptoms.

The doctors, however, were not permitted to repeat patient statements about medical history and causation unless those statements had been crucial to the doctors' diagnosis and treatment. In such circumstances, the doctors could testify about these statements, but jurors were expressly instructed by the judge that they could only consider the statements for the limited purpose of assessing the value of the doctors' opinions.

This practice made little sense. If the hearsay statements of patients about medical history and causation had been crucial to the doctors' medical conclusions, the acceptance of those conclusions by the jury would also have been an acceptance of their bases. And because jurors were not likely to follow the judges' limiting instructions, the doctors' testimony was an indirect method of getting inadmissible hearsay before the jury.
Recognizing the absurdity of this situation, the original advisory committee solved it by drafting Rule 803(4), which makes statements of medical history and causation admissible for truth. In other words, jurors could accept as truth a medical opinion as well as the information relied on by the doctor in forming that opinion. This result is consistent with the role of the expert as an aid to the jury, and the role of the jury as the sole, independent finder of facts.

Ironically, the original advisory committee failed to apply the reasoning of Rule 803(4) to nonmedical experts when it drafted Rule 703. Today, these experts can make findings based on inadmissible evidence, even though the jury might never hear all the evidence forming the basis of their opinions.

Without acknowledging this irrational practice, the advisory committee proposes expanding Rule 703 to permit disclosure of otherwise inadmissible facts relied on by the expert if "their probative value substantially outweighs their prejudicial effect." However, the only problem this revision addresses is the inconsistent manner in which courts have treated otherwise inadmissible background information. Most have permitted no mention of them; others have.

The proposed Rule 703 does not specify whether the "type [of evidence] reasonably relied upon by experts in the particular field" must be screened for trustworthiness by an expert before it is admitted. For instance, the reliability of psychological interviews with a patient's siblings may depend on who conducted the interviews, the conditions of the interviews, and consistencies among them.

How then are jurors supposed to consider these background facts? May they assume them to be true in the same way the expert has? Probably not, since that would create a virtual open-ended exception to the hearsay rule. But if jurors do not, aren't they deciding a different case than the expert has testified in?

In those courts where reference to otherwise inadmissible background information has been permitted, the disclosure is often accompanied by an instruction from the presiding judge that the jurors cannot accept this information for its truth (even though that information supports the expert's conclusions, which the jurors are told they can accept for their truth). It is not realistic to think that jurors can assess an expert's testimony by assuming the truth of the facts relied on, and then disregard those same facts in reaching their own conclusions.

The committee's proposed changes to Rule 703 are based on the assumption that experts can assess the reliability of the otherwise inadmissible evidence - separating the wheat from the chaff. If this assumption is accurate, shouldn't the experts be allowed to explain how they have concluded that the inadmissible evidence is wheat rather than chaff? An expert's assessment of background information should constitute a sufficient basis for admitting the evidence for its truth; counsel can always argue about what weight that evidence should be given.

Rather than make only minor adjustments, the advisory committee should look broadly at the adequacy of the federal evidence code. At some point, as with Rule 703, adjustments to faulty rules simply manipulate existing problems rather than resolve them.

The Supreme Court should reject the revisions to the expert witness rules. If the justices fail to do so, Congress should act. We should stop illogically asking jurors to ignore crucial evidence that supports the expert opinions they hear in court. Our juries - and our adjudicatory system - deserve better.

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