§ 25.04 Opinion Based on Nonrecord Facts: "Reasonable Reliance" Requirement

• Jurisdiction: United States

§ 25.04 Opinion Based on Nonrecord Facts: "Reasonable Reliance" Requirement

In addition to personal knowledge and hypot hetical questions, Rule 703 permits an expert to give an opinion based on information supplied to the expert outside the record (nonrecord facts) "[i]f experts in the particular field would reasonably rely on those kinds of facts or data in forming an opinion on the subject."¹² The drafters of the Federal Rules wanted to bring the courtroom use of expert testimony into conformity with how information is used by experts in practice. A physician, for example, will frequently arrive at a diagnosis (a type of opinion) based on radiology and toxicology reports.¹³ In effect, Rule 703 permits an expert to base an opinion on hearsay evidence. In United States v. Lundy,¹⁴ an arson expert testified that a fire had been purposefully set, basing his opinion on his firsthand inspection of the scene and on interviews with witnesses at the scene. The Seventh Circuit ruled the testimony admissible because such interviews "are a standard investigatory technique in cause and origin inquiries."¹⁵

The drafters believed that the "reasonable reliance" requirement would ensure the reliability of this type of expert testimony, noting that the requirement would exclude "the opinion of an 'accidentologist' as to the point of impact in an automobile collision based on statements of bystanders since this requirement is not satisfied."¹⁶ One court explained it this way: "The rationale in favor of the admissibility of expert testimony based on hearsay is that the expert is fully capable of judging for himself what is, or is not, a reliable basis for his opinion. This relates directly to one of the functions of the expert witness, namely to lend his special expertise to the issue before him."¹⁷

Criticisms. Nevertheless, Rule 703 has its detractors.¹⁸ First, it assumes extensive pretrial discovery. Such discovery is often not available in criminal cases, and thus the opponent may not know the bases of the opinion until cross-examination.¹⁹ Second, the jury may also not understand the bases because Rule 705 does not require prior disclosure of the bases.²⁰ Third, Rule 703 raises confrontation issues in criminal cases.

[A] Determining Admissibility: Judge's Role

There are two different approaches to the judge's role in determining "reasonable reliance." One approach (often referred to as the "restrictive" approach) requires the trial court to make an independent assessment of the reasonableness of the expert's reliance.²¹In contrast, other courts (adopting a "liberal" approach) limit the judge's role to determining what experts in the field consider reasonable. According to the Third Circuit, the "proper inquiry is not what the court deems reliable, but what experts in the relevant discipline deem it to be."²² In short, the trial court is not supposed to substitute its view of what constitutes reasonable reliance for that of the experts in the relevant field.

The Third Circuit, however, changed positions after the Supreme Court decided Daubert,²³ noting that its "former view is no longer tenable in light of Daubert." The court wrote: "It is the judge who makes the determination of reasonable reliance, and for the judge to make the factual determination under Rule 104(a) that an expert is basing his or her opinion on a type of data reasonably relied upon by...