Rule 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 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.
The language of the rule is broad enough to allow three types of bases: facts personally observed by the expert; facts posed in a hypothetical question; and hearsay reports from third parties. United States v. Reveles, 42 M.J. 388 (1995), expert testimony must be based on the facts of the case.
Hypothetical questions (no longer required). No need to assume facts in
evidence, but, if used, must be reasonable in light of the evidence.
United States v. Breuer, 14 M.J. 723 (A.F.C.M.R. 1982). The proponent
may specify historical facts for the expert to assume as true, or may have
the expert assume the truth of another witness or witnesses.
Personal Perception. United States v. Hammond, 17 M.J. 218 (C.M.A.
1984). The fact that expert did not interview or counsel victim did not
render expert unqualified to arrive at an opinion concerning rape trauma
syndrome. United States v. Snodgrass, 22 M.J. 866 (A.C.M.R. 1986);
United States v. Raya, 45 M.J. 251 (1996). Defense objected to social
worker’s opinion that victim was exhibiting symptoms consistent with
rape trauma accommodation syndrome and suffered from PTSD on basis
that opinion was based solely on observing victim in court, reading
reports of others and assuming facts as alleged by victim were true.
Objection went to weight to be given expert opinion, not admissibility.
The foundational elements include: Where and when the witness
observed the fact; who was present; how the witness observed the fact;
and a description of the observed fact.
Facts presented out-of-court (non-record facts), if “of a type reasonably
relied upon by experts in the particular field” (even if inadmissible).
“The rationale in favor of admissibility of expert testimony based on
hearsay is that the expert is fully capable of judging for himself what is,
or is not, a reliable basis for his opinion. This relates directly to one of
the functions of the expert witness, namely to lend his special expertise
to the issue before him.” United States v. Sims, 514 F.2d 147, 149 (9th
Cir.), cert. denied, 423 U.S. 845 (1975). There is a potential problem of
smuggling in otherwise inadmissible evidence.
United States v. Neeley, 25 M.J. 105 (C.M.A. 1987), cert.
denied, 484 U.S. 1011 (1988). Psychiatrist’s testimony that she
consulted with other psychologists in reaching her conclusion
that accused had inflated results of psychiatric tests and her
opinion was the consensus among these people was hearsay and
inadmissible. Military judge may conduct a 403 balancing to
determine if the probative value of this foundation evidence is outweighed by unfair prejudice.
United States v. Hartford, 50 M.J. 402 (1999). Defense was not
allowed to cross-examine the government expert about contrary
opinions from two colleges. The defense did not call the two as
witnesses and there was no evidence that the government expert
relied on the opinions of these colleges. The CAAF held the MJ
did not err in excluding this questioning as impermissible
smuggling under Rule 703.
The elements of the foundation for this basis include: The source
of the third party report; the facts or data in the report; if the facts
are inadmissible, a showing that they are nonetheless of the type
reasonably relied upon by experts in the particular field. In
United States v. Traum, 60 M.J. 226 (2004), the CAAF
emphasized that the key to evaluating the expert’s basis for her
testimony is the type of evidence relied on by other experts in the
United States v. Ellis, 68 M.J. 341 (C.A.A.F. 2010). Over
defense objection, the government’s expert testified that the
accused had a moderately high risk of recidivism without having
personally interviewed the accused. The expert had reviewed the
accused’s records, the charges and specifications, the stipulation
of fact, chat logs, and the expert had listened to the accused’s
providency inquiry. The CAAF found that the military judge
had not abused his discretion, stating that “[t]here can be no hard
and fast rule as to what constitutes ‘sufficient information and
knowledge about the accused’ necessary for an expert’s opinion
as to an accused’s rehabilitation potential.”
United States v. Mullins, 69 M.J. 113 (C.A.A.F. 2010).
Appellant was charged with sexually abusing his daughters who
were seven and nine years old. The girls testified to sexual
abuse that included rape, oral and anal sex, and masturbation.
The Government called a forensic child interviewer as an expert
witness. On redirect, the expert witness testified that the
frequency of children lying about sexual abuse was less than 1
out of 100 or 1 out of 200. Defense counsel did not object. The
CAAF held that it was error to allow the expert testimony which
impermissibly invaded the province of the panel.
Expert testimony, like any other testimony must be relevant to an issue at trial.
See Rule 401, 402; Daubert, v. Merrell Dow Pharmaceuticals, Inc. 509 U.S. 579
If the expert testimony is not relevant, it is de facto not helpful to the trier of fact.
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