EvidenceProf Blog

Editor: Colin Miller
Univ. of South Carolina School of Law

Monday, February 11, 2008

Evidence And Ethics 11: Professor Blinka's Ethical Firewalls, Limited Admissibility, and Rule 703

Marquette University Law School Professor Daniel D. Blinka's contribution to the Evidence and Ethics Symposium is his article, Ethical Firewalls, Limited Admissibility, and Rule 703.  In the article, Professor Blinka takes a close look at Federal Rule of Evidence 703 and argues that it forms the basis for rethinking how the doctrine of limited admissibility is used in the Federal Rules of Evidence and at trial.

In Part I, Blika lays out the doctrines of general and limited admissibility.  Multiple admissibility recognizes that every piece of evidence supports numeorus inferences and thus may be used to prove multiple factual propositions.  Its corollary, limited admissibility, sets forth that when evidence is inadmissible under the rules of evidence to prove certain factual propositions but admissible to prove other factual propositions, courts will admit it to prove the permissible purposes, with the evidence frequently being accompanied by a limiting instruction requested by opposing counsel to preclude jurors from considering it for impermissible purposes.

In Part II, Blinka notes how the doctrines of multiple and limited admissibility are threaded throughout the federal rules of evidence.  For instance, character evidence (e.g., a prior felony assault conviction) is inadmissible to prove that a defendant has a propensity to act in a certain manner (e.g., violently) and acted in conformity with that propensity when committing the subject crime (e.g., murder) pursuant to Rule 404.  However, that same evidence may be admissible to prove another purpose such as motive under Rule 404(b) or to impeach the defendant under Rule 609.  Furthermore, each of the specialized relevance rules contained in Rules 407-411 recognize that evidence of subsequent remedial measures, liability insurance, etc., are inadmissible for some purposes, but inadmissible for others.

In Part III, Blinka then considers how the doctrines of multiple and limited admissibility work in the Rule 703 context.  He notes that before the Rule's passage, courts rigidly adhered to the notion that experts could only provide opinion testimony if they formed their opinions based upon evidence which would be admissible at trial.  The increasing use of expert testimony, however, strained the common law's rigid approach, leading to Rule 703, which at the time it was enacted, stated: "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 in order for the opinion or inference to be admitted."

Blinka then notes that "[c]ase law soon revealed the fundamental incompatibility of Rule 703's reasonable reliance standard and exclusionary rules of evidence" as the proponents of expert opinion testimony were increasingly able to get "inadmissible" evidence before the jury as their experts explained the basis for their opinions.  In response to this problem and an ABA study, the Supreme Court amended Rule 703 by adding a third sentence, which reads: "Facts or data that are otherwise inadmissible shall not be disclosed to the jury by the proponent of the opinion or inference unless the court determines that their probative value in assisting the jury to evaluate the expert's opinion substantially outweighs their  prejudicial effect."  Blinka contends, however, that "[p]rotestations to the contrary, amended Rule 703 performed like the legendary alchemist's stone, transforming inadmissible evidence into a species of admissible evidence."

In Part IV, Blinka argues that while some might argue that a lawyer is acting unethically if he uses Rule 703 to disclose inadmissible evidence, there are "at least two ethical firewalls that insulate against charges of impropriety."  These are (1) the fact that evidence isn't "inadmissible" unless and until the opponent raises a timely and proper objectoon, and (2) Rule 703's incorporation of the limited admissibility doctrine.  In his conclusion, Blinka thus concludes that it is not the skilled trial lawyer using the doctrine to his advantage that is deserving of criticism.  Instead, he proposes that we (1) revisit many of the distinctions now recognized by evidence law, (2) redraw limiting instructions, and (3) pay more attention to arguments by counsel. 

Personally, I think that Rule 703 is perplexing, and Blinka does a great job of exposing the consternation and odd results that it has caused, both pre- and post-amendment.   



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