Hearsay as a Basis for Opinion Testimony
| Publication year | 1988 |
| Pages | 2337 |
| Citation | Vol. 17 No. 12 Pg. 2337 |
1988, December, Pg. 2337. Hearsay as a Basis for Opinion Testimony
The evidentiary concepts of opinion, hearsay and relevance can generate controversy among or confusion for practitioners and jurists. When hearsay and opinion evidence are interwoven, the analysis becomes exponentially more difficult. For the attorney steering the evidence through the shoals of the courtroom, each of these topics may present a hidden reef upon which particular evidence, or the entire case, can be wrecked. Plotting a course through waters where the unexplored hazards of opinion and hearsay evidence cross at one juncture requires a well-prepared captain, with a detailed chart of the waters. No such map as yet exists.
Otherwise inadmissible opinion and hearsay evidence sometimes slips into the record because of a lack of awareness about, or unwillingness to sort through, the interaction between opinion and hearsay evidence. This article provides background on Colorado Rule of Evidence ("C.R.E.") 703 and alerts practitioners to such hazards that will often confront them in the courtroom. It also analyzes various strategies to address the admissibility of hearsay evidence, including hearsay opinions, relied on as a basis for opinion testimony under C.R.E. Rule 703.
This rule allows experts to give testimonial opinions that are based on otherwise inadmissible hearsay. For example, assume a scenario where a psychiatrist testifies that a young adult, who claims to have suffered traumatic brain damage, instead is a schizophrenic whose problem has nothing to do with the accident.(fn1) A primary basis for the doctor's opinion is an eight-year-old hospital record containing the statement of an unidentified social worker that the plaintiff was "schizophrenic" at that time. Should the psychiatrist's testimony, based on the out-of-court hearsay opinion of the social worker, be allowed?
In comparison to the common law standards which governed the courtroom prior to adoption of a written code, the Colorado Rules of Evidence present a relatively detailed and convenient handbook of evidence presentation. Nonetheless, the rules on hearsay and opinion evidence can present seemingly competing, and therefore conflicting, policies of admissibility within the code itself. Under the best of circumstances, wandering through the maze of such topics as "opinions as hearsay," "hearsay within hearsay," "opinions based on other opinions" and "hearsay used as a basis for opinions" causes headaches for even the seasoned advocate or jurist.
In the setting of a verbal objection made in the middle of trial while the jury is waiting, resolution of a challenge to the admissibility of, for example, hearsay presented through opinion evidence, may well turn on the lawyer's ability to anticipate the problem in advance of trial and prepare the court for a difficult, but necessary analysis. At least for gathering the attorney's thoughts for such a presentation, it is useful to summarize and compare the underlying goals and policies of C.R.E. Rule 703 as it relates to the interplay between hearsay and opinion evidence.
Prior to the adoption of Rule 703, the law had held to a longstanding, but slowly changing bias of keeping opinion testimony on a tight leash. As science, medicine and technology became increasingly sophisticated and complex, the need to have information explained and interpreted by experts for lay jurors likewise increased. Once the underlying data supporting the opinion was admitted into evidence, either through the personal observation of the expert or other admissible evidence by way of testimony or exhibits, a qualified expert could then offer an opinion to the jury based on the admitted evidence. Usually, this came in response to a "hypothetical question."
With the advance of technology and science, the underlying sources of information for opinions grew both quantitatively and qualitatively, and the rule requiring prior admissibility of all factual data supporting the opinion posed procedural headaches. As the drafters of Federal Rules of Evidence (F.R.E.) 703 noted, such headaches included "the expenditure of substantial time in producing and examining various authenticating witnesses."(fn2) In a corresponding manner, the cumbersome and disputed "hypothetical question" grew even more unworkable and distracting.(fn3)
Among one of several ways that the drafters chose to address these issues was to allow opinion testimony to be based on data not admissible in evidence. C.R.E. 703 provides:
The facts or data in the particular case upon which an expert bases an opinion or inference may be those perceived by or made known to him at or before the hearing. If of a type reasonably relied upon by experts in the particular field informing opinions or using inferences upon the subject, the facts or data need not be admissible in evidence.(fn4)
Although not without some foundation in the prior law, Rule 703 was nonetheless a dramatic and "somewhat controversial" change when it was adopted in 1975.(fn5) Now, evidence that is kept out as untrustworthy hearsay under 802, as unqualified opinion under 702 or as not subject to cross-examination under 705 may nonetheless be presented to the fact-finder under Rule 703. For example, records not falling within a Rule 803 exception and rejected as hearsay in one point in the trial can be testified to at a later point in the same trial by an expert who "reasonably relied" on such hearsay. This allows evidence which is not respectable enough to walk in tthought the front door to sneak in through the back door.(fn6)
Considering that Rule 703 represents a major turnabout in attitude toward the allowable bases for opinion testimony, the Advisory Committee's Note on the rule is brief. The Committee understood that it was creating a substantial change: "The rule is designed to broaden the basis for expert opinions beyond that current in many jurisdictions."(fn7) In summary form, the Committee's rationale was that there is enough trustworthiness associated with the way experts form their opinions outside of the courtroom to justify admissibility in the courtroom by use of the same methodology. Thus, the rule brings "the judicial practice into line with the practice of the experts themselves when not in court."(fn8) Further, the Committee felt that there were sufficient safeguards within 703, and other rules in the 700 series, to address fears "that enlargement of permissible data [used as a basis of opinions] may tend to break down the rules of exclusion unduly."(fn9)
The single specific example that the Advisory Committee gave to advance the proposition that reliance on hearsay by experts was sufficiently trustworthy for the courtroom is as follows:
Thus a physician in his own practice bases his diagnosis on information from numerous sources and of considerable variety, including statements by patients and relatives, reports and opinions from nurses, technicians, and other doctors, hospital records, and x-rays. Most of them are admissible in evidence, but only with the expenditure of substantial time in producing and examining various authenticating witnesses. The physician makes life-and-death decisions in reliance upon them. His validation, expertly performed and subject to cross-examination, ought to suffice for judicial purposes.(fn10)
In this author's opinion, it makes sense to assert that physicians' methodology in making decisions in life and death situations is trustworthy. It can be comfortably assumed that physicians will develop, over years of life and death situations, a system of decision-making that will be reliable in achieving the desired result: saving the patient's life. Even if that process includes use of hearsay data, it will presumably be reliable, given the importance of the decision to be made. The approach of the medical profession to problem-solving is that everyone joins hands to reach that same goal of saving the patient's life. Because this is generally true for all doctors involved in that decision-making process, it is reasonable to leave questions of testimonial trustworthiness to cross-examination or rebuttal testimony.
However, it is arguably a false assumption that forensic experts in an adversarial setting, with weeks, months or even years of pretrial preparation or thought, use the same methodology of problem-solving as physicians in "life and death" situations. Rather, experts retained for forensic purposes are subject to influence by the adversary's goal: "Win the case!" In contrast to medicine, where it is expected that all participants cooperate to reach the same end, the law's approach to problem-solving is to expect, indeed, to require, that the adversaries present two opposing presentations of "the truth." Under the law's approach to problem-solving, the truth-finder (judge or jury) is then best able to determine the "real truth" by examining those two adversarial presentations.
This dilemma was not totally ignored by the drafters of Rule 703. The language of the rule requiring that the hearsay data "be of a type reasonably relied upon by experts in the particular field" was intended to provide some control. According to the drafters:
The language would not warrant admitting in evidence 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.(fn11)
In practice, however, the Advisory...
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