SC Lawyer, March 2005, #2. Beyond the Bar - Witch Doctors: The Sequel.

AuthorBy Warren Moise

South Carolina Lawyer


SC Lawyer, March 2005, #2.

Beyond the Bar - Witch Doctors: The Sequel

South Carolina LawyerMarch 2005Beyond the Bar - Witch Doctors: The Sequel(A mostly non-Daubert look at expert witnesses)By Warren MoiseKing Saul retained the Witch of Endor to conjure up Samuel's spirit from the dead. As judges and trial lawyers know, this practice is still quite common in our courtrooms where expert witnesses regularly conjure up strange and mysterious opinions from patently inadmissible evidence. The last column addressed some basics about expert witnesses. Now comes the sequel!

Disclosing inadmissible bases for experts' opinions to jurors

May an expert tell jurors that he based his opinion on "an MRI finding by radiologist Dr. X?" or that "Dr. X stated that 'the accused suffered brain damage?'" (Assume that Dr. X will not testify.) Well, it depends.

Amended Federal Rule 703 presumes that the inadmissible bases of an expert's opinion are not to be disclosed to the jury by the proponent of the expert testimony unless the judge decides that the probative value of the inadmissible evidence substantially outweighs its prejudicial effect.

South Carolina Rule 703 does not include this new language found in Federal Rule 703. In my experience, circuit judges often follow the common-law rule allowing some information about the otherwise inadmissible bases to be disclosed to jurors so they may understand how the expert arrived at her opinions. The matter probably is best regulated under Rule 403, especially as to how much detail is brought out. For example, a court might allow Dr. Jones to simply disclose "I reviewed radiologist Dr. X's records"; "I diagnosed a L5-S1 herniation based upon Dr. X's MRI findings"; or allow something in between. A limiting charge is a consideration also.

Learned treatises

Authoritative publications are terribly underutilized at trial. Under Rule 803(18), a proper publication may be read to the jury during direct examination of an expert witness, assuming that: (a) the party's expert relied on the treatise in forming an opinion and (b) the treatise is shown to be a reliable authority (by the witness, another witness or by judicial notice). G. Ross Anderson Jr., Unmined Gold in 803(18), 7 SC Lawyer 32 (1996) [hereinafter Anderson]. Cf. Haltiwanger v. Barr, 258 S.C. 27, 186 S.E.2d 819 (1972) (AMA guidelines are "widely...

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