§ 25.05 EXPERT OPINIONS AND "BACKGROUND" HEARSAY

• Jurisdiction: North Carolina

§ 25.05. EXPERT OPINIONS AND "BACKGROUND" HEARSAY

There are two distinct hearsay issues relating to the use of expert testimony. One issue involves the use of hearsay as a basis for expert testimony in a particular case, an issue governed by Rule 703 and discussed in the preceding section. The other issue concerns the expert's use of hearsay in forming an opinion, even though the basis for the opinion is personal knowledge or facts in the record. The confusion between these two issues is common.

Viewing expert testimony as a syllogism may obviate the confusion.³² For example, a forensic pathologist may testify that a homicide victim had been shot at close range. The major premise is a general proposition: powder burns on a gunshot victim indicate a close-range (6-18 inches) entrance wound. The minor premise is the finding of such powder burns during the autopsy. The conclusion as stated above is derived from these two premises.

Major premise: Powder burns on a gunshot victim indicate a close-range entrance wound (Rule 702 issue).

Minor premise: Powder burns were found on the victim's chest during the autopsy (Rule 703 issue).

Conclusion: Victim in this case had been shot at close range.

Facts in a particular case. Rule 703 concerns only the minor premise, which the rule calls the facts or data "in the case."

Background hearsay. The major premise is the general proposition (powder burns on a gunshot victim indicate a close-range entrance wound), an issue governed by Rule 702. This premise is gleaned from the expert's experience and learning in forensic pathology. In one sense, most expert testimony is based, in part, on hearsay. The extrajudicial statements of colleagues, textwriters, and teachers are all used by experts in forming opinions. This use of texts and lectures contributes to the expert's qualifications. Professor Maguire explained the issue this way:

Progress of expert knowledge demands reliance upon the learning of the past. Almost invariably this learning is recorded in hearsay form. No individual can ever make himself into an expert without absorbing much hearsay — lectures by his teachers, statements in textbooks, reports of experiments and experiences of others in the same field.³³

There is nothing wrong with relying on this type of background hearsay; indeed, the witness would probably not be an expert without it. Thus, an expert who has consulted books or spoken to other experts is acting properly, and Rule 703 does not address this use...