Experts, Judges, and Commentators: the Underlying Debate About an Expert's Underlying Data - Ronald L. Carlson

• Jurisdiction: United States,Federal
• Publication year: 1996
• Citation: Vol. 47 No. 2

Experts, Judges, and Commentators: The Underlying Debate About an Expert's Underlying Databy Ronald L. Carlson^*

I. Significance of the Dialogue

Debate concerning the limits of judicial power over expert witnesses remains active and in its early stages.¹ Commentators charting the course of judicial opinions observe that some of the modern regulatory proposals have yet to enlist official adoption.² Part of the problem may relate to recognition of questions. Courts will adjudicate critical issues only when they are made aware of them. The burden of calling attention to an expert's flawed bases falls squarely on trial lawyers who must make astute and incisive objections.³

In this formative period of legal development important decisions will be made. The future direction of courtroom control over the burgeoning onslaught of expert opinion⁴ will be shaped in the years immediately ahead. For this reason, it is vital that the aforementioned debate continue. Positions previously advanced need to be refined and reiterated. Courts should be alerted to the issues. As judges become aware of significant questions—questions which are sometimes subtly lodged in the tangle of an appellate record—information about how to resolve them needs to be readily at hand.

Into this uncertain world Professor Imwinkelried's article comes, and it makes a worthwhile contribution. Imwinkelried's focus on Federal Rule of Evidence 703 is rightly directed. That rule, like no other, will control most of the future development of expert witness law. Rule 703 is at the core of significant inquiries which confront our courts. Can the expert's proponent formally introduce the hearsay reports upon which an expert relies to supply his courtroom opinion? Is a trial judge precluded from testing the credibility of the underlying data the expert used to reach her conclusions? Imwinkelried raises these questions, and they will be the targets of this commentary as well.

II. Wide-Open Admission of Junk Conclusions?

Much expert testimony is sound, reliable, and deserving of serious consideration by the trier of fact. For example, the DNA proof supplied by Dr. Robin Cotton in the O.J. Simpson murder trial springs immediately to mind. On the other hand, in many courtroom situations the expert's proof is simply bought and paid for. Trial lawyers see experts in the latter category as a growing breed. Moreover, the phenomenon of the "hired gun" expert is widely accepted as a regular, if unpleasant, fact of life.

Some of the sting can be taken from the expert who prostitutes himself. The damage inflicted by his flawed opinions can be marginalized by a carefully prepared and well-executed cross-examination. But how much more dangerous does the "jukebox" expert—the one who will resonate any tune for a fee—become when judicial controls are removed?

Consider the possibilities. A lawyer hires a willing expert, a medical doctor, and hands him the reports of other doctors X, Y, and Z in a personal injury case. The hired doctor reads the reports and feels he can rely upon them. If the local court has adopted the rule of wide-open introduction of an expert's foundation, the following scenario occurs. At trial, as the hired doctor gets ready to give his opinion, he eagerly admits that he relied upon the reports of X, Y, and Z to reach certain conclusions. The courtroom doctor presents his own conclusions, whereupon the proponent next moves that the reports of X, Y, and Z be received. The trial judge agrees. This accomplished, the "outside" reports are then tossed into the lap of the jury. An enterprising attorney has thus produced four experts for the price of one, with three of them insulated from cross-examination in the bargain.

In an era of ambitious and compliant experts, protective rules are needed to curb real and potential abuses. That is why some courts announce the following doctrine, in essence: The data upon which an expert says he relies are not admissible and may only be referred to in a summary manner on direct examination.⁵ Underlying hearsay reports are not to be read in detail to the jury, nor are copies to be marked and published as exhibits.

A number of tribunals have recognized the need for such a rule. Courts in Florida,⁶ Texas,⁷ and California,⁸ some of our largest states, follow it. Judicial decisions or statutes in places like Massachusetts,⁹ New Jersey,¹⁰ Virginia,¹¹ and Minnesota¹² embrace the wisdom of this approach. Vermont elevated it to constitutional status in criminal cases.¹³ Thus, while most jurisdictions do not appear to have directly faced this critical issue, many which have done so adopt an exclusionary rule.¹⁴ An exclusionary approach has also been embraced in a number of federal decisions.¹⁵

Consistent with the theme of this article, the direction of the foregoing decisions should be followed and expanded upon. An exclusionary posture represents correct application of policy and law. Hearsay reports of nontestifying experts do not belong in a case's body of proof as substantive evidence.

III. Illustrating the Bases

The last section of this article rejected from affirmative proof the inadmissible basis used by an expert to reach an opinion. Nor are those bases properly usable to "illustrate" the basis for the expert's conclusion. Sometimes lawyers argue that jurors should hear inadmissible evidence so that they can better assess the quality of the expert's opinion. The danger of misuse is too high. The argument should be resisted.

Recent human behavior research supports this conclusion. Participants in an experiment were exposed to unsubstantiated and secondhand information conveyed by means of an expert relating his background investigations to the jury. Mock juror simulations indicated that expert background hearsay was used to reach verdict decisions, in spite of judicial instructions to ignore the substantive facts asserted in the hearsay statements.¹⁶ The results underline the need to reject the position of some courts. These courts admit hearsay information conveyed by an expert as long as the jury is instructed to ignore the facts asserted in the hearsay statement and use the information only for determining the weight to attribute to the expert's opinion.¹⁷ In her research on expert hearsay, Regina Schuller addressed prior studies "which have focused on hearsay conveyed via a nonexpert witness."¹⁸ Some of these have suggested that mock jurors' decisions are only minimally influenced by hearsay information.¹⁹ How is the difference in result explained when an expert conveys the hearsay? Schuller raises the possibility that hearsay transmitted by an expert, as opposed to a lay witness, may carry convincing weight.²⁰

The oft-expressed concern that expert testimony will be overvalued by the jurors because of its "aura of scientific reliability and trustworthiness" (see Vidmar & Schuller, 1989) suggests that hearsay conveyed via ah expert, as opposed to a nonexpert witness, may carry greater weight. The "paramessage" elements, such as prestige and expertise, that accompany the expert's "message" (Rosenthal, 1983) may lend greater credibility to the hearsay information.²¹

Will limiting instructions take care of the problem? Further studies tend to suggest that instructions can have just the opposite effect. "Taken in their entirety, these findings tend to suggest that the introduction of limiting instructions regarding hearsay information conveyed via expert testimony may either have little or no effect, or alternatively, may even backfire and enhance the impact of the hearsay information . . . ,"²²

In the Schuller study, "the secondhand information introduced via expert testimony was not independently admitted at trial."²³ The judge's final charge instructed the jury that these facts were not to be accepted as true unless established by other evidence presented at trial.²⁴ "Contrary to the research exploring juror sensitivity to hearsay conveyed via nonexpert witnesses, in the present study hearsay information conveyed via an expert witness did influence the decision process.

Schuller readily concedes that this 1995 study is "subject to the usual limitations of juror simulations," and the author cites the need for continued research.²⁶ At the least, however, there is very little reason to back away from longstanding positions as a result of these most recent experimental findings.

Limiting instructions do not seem to prevent jurors from using inadmissible hearsay for the truth of the hearsay assertions and may even highlight the inadmisisble material. Imwinkelried has long been skeptical of the use of judicial instructions as a panacea for policing expert hearsay.²⁷ So has this author.²⁸ When the debate about expert underlying data began in earnest in 1984, its beginning was marked by a critique of jury instructions. Targeted were those admonitions by the trial court instructing the jury "to disregard the substantive effect of the nontestifying [expert's] report" but then advising that "the evidence will nevertheless come in 'simply to illustrate the basis of the expert's opinion.'"²⁹ The 1984 article castigated this sort of limiting instructions.³⁰ "The weakness of this rationalization for courtroom reference to third party reports and conclusions, however, is clear."³¹ Supporting reasons were supplied:

[C]ivil litigants may argue that an out-of-court report should be admitted as an adjunct of the direct examination "simply to illustrate the basis for the expert's opinion, not as substantive evidence." The distinction will likely escape the jury, and the subterfuge should not be allowed to frustrate accepted hearsay policies. As in certain other areas of evidence law, it would be mythical to expect the jury simply to consider its illustrative effect and...