§ 25.01 Introduction

• Jurisdiction: North Carolina

§ 25.01 Introduction

The last chapter discussed the subject matter and qualification requirements for expert testimony. This chapter considers the bases of expert testimony.

To be relevant, the expert's opinion must be based on the facts in the particular case. If the jury rejects those facts (and they may be disputed), the jury should also reject the opinion.

How does the expert get those facts? Rule 703 recognizes three bases for expert testimony.¹At common law, there were generally two bases for expert testimony: (1) personal knowledge and (2) assumed record facts (i.e., hypothetical question). Federal Rule 703 added a third basis (nonrecord facts): "If experts in the particular field would reasonably rely on those kinds of facts or data in forming an opinion on the subject, they need not be admissible for the opinion to be admitted." This innovation is controversial because it allows an expert to base an opinion on facts not admitted in evidence. Indeed, the facts may be inadmissible hearsay.

Rule 705. Rule 703 must be read in conjunction with Rule 705, which permits an expert to give an opinion before disclosing the underlying bases, and so the rule changes the common law. By its very nature, the hypothetical question requires disclosure of the facts (i.e., the assumed facts) upon which the opinion is based prior to the rendition of the opinion.

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