Vol. 13, No. 6, Pg. 14. South Carolina Evidence Rule 703: A backdoor exception to the hearsay rule?.

• Author: By Daniel F. Blanchard III

South Carolina Lawyer

2002.

Vol. 13, No. 6, Pg. 14.

South Carolina Evidence Rule 703: A backdoor exception to the hearsay rule?

14South Carolina Evidence Rule 703: A backdoor exception to the hearsay rule?By Daniel F. Blanchard IIIIn 1995 the South Carolina Supreme Court promulgated the South Carloina Rules of Evidence which largely track the counterpart Federal Rules of Evidence. Rule 703, which is a verbatim copy of the then existing federal rule, permitsan expert witness to offer an opinion based upon factual information or hearsay that has not been admitted in the proceedings. That rule provides:

16The 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 the expert at or before the hearing. If of a type reasonably relied upon by experts in the particular field in forming opinions or inferences upon the subject, the facts or data need not be admissible in evidence. S.C. R. Evid. 703.

The note to the rule states that it makes "clear that an expert may rely on facts or data in giving an opinion which are not admitted in evidence or even admissible in evidence." S.C. R. Evid. 703 note.

Despite the simplicity of allowing experts to base their opinions on documents or information not otherwise admissible in evidence, the text of the rule leaves an important question unanswered: If an expert reasonably relies upon factual information or hearsay testimony (that is otherwise inadmissible) to justify his opinion, should the court admit the underlying factual information or hearsay as evidence or allow its disclosure to the jury? The answer to this question is increasingly important given the proliferation of expert testimony in modern litigation. The various courts and commentators who have analyzed this issue have rendered divergent views on the subject. This article summarizes the various alternatives to resolving this question, highlights the pros and cons of each approach and analyzes recent South Carolina appellate opinions that addressed -but failed to resolve - this issue.

Alternative solutions

A few courts and commentators have adopted a restrictive approach that simply allows the expert to identify in general terms the extrinsic factual information or data that he used as a basis for his opinion; however, the information itself is not admitted in evidence for any purpose (assuming, of course, that it is not independently admissible under a hearsay exception or other evidentiary rule). Further, under this approach, the expert is prohibited from reading the information to the trier of fact or making detailed disclosure of it during his testimony. See, e.g., People v. Campos, 38 Cal. Rptr. 2d 113 (Ct. App. 1995); First Southwest Lloyds Ins. Co. v. McDowell, 769 S.W.2d 954 (Tex. Ct. App. 1989); and Ronald L. Carlson, Collision Course in Expert Testimony: Limitations on Affirmative Introduction of Underlying Data, 36 U. Ha. L. Rev. 234 (1984).

An advantage of this approach is that it prohibits a party from using an expert as a conduit for admitting information that violates accepted hearsay rules and, therefore, discourages a party from feeding otherwise inadmissible factual information to an expert in the hopes of bringing those facts to the jury's attention. Additionally, in criminal cases, it ensures that a defendant's constitutional right to confront adverse witnesses is preserved. However, a downside of this approach is that it deprives the jury of the facts and detailed information which the expert relied upon in forming his opinion. If the expert is prevented from disclosing these facts to the jury, it could undermine the persuasive force of his opinion. The jury needs the facts underlying the expert's opinion to make a fully informed decision as to the validity of the expert's conclusions. Indeed, allowing jurors to blindly accept an expert's opinion based on his apparent credibility, while simultaneously depriving the jury of the factual basis for his opinion, arguably shifts the jury's fact-finding role to the expert.

A majority of jurisdictions and commentators have charted a less restrained course that allows the underlying factual information to be admitted for the limited purpose of showing the basis for and explaining the expert's opinion; however, the information is not treated as substantive evidence and a jury must be given a limiting instruction explaining the information's restricted use. See, e.g., U. S. v. 0.59 Acres of Land, 109 F.3d 1493 (9th Cir. 1997); Brennan v....