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Univ. of South Carolina School of Law

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Monday, April 21, 2008

Misplaced Expertise: Indiana Court Makes Seemingly Erroneous Rule 703 Ruling

The Court of Appeals of Indiana's recent opinion in Newbill v. State, 2008 WL 1734897 (Ind.App. 2008), contains a seemingly disastrous oversight.  In Newbill, Lawrence E. Newbill was convicted of the rape of "H.R."  After the alleged rape, H.R. was taken to the hospital and subjected to a ninety-minute examination by Patricia Farrell, a trained and certified sexual assault nurse examiner (“SANE”).  At Newbill's trial, Farrell testified that she was not treating H.R. or obtaining a medical diagnosis, but instead was collecting evidence.  She also testified that, inter alia

   •H.R.'s vagina area was "extremely red ... and very irritated;"
   •The area where Farrell observed the irritation was "very painful and had been since" the  intercourse with Newbill, according to H.R.;
   •The area was "more red than normal" and might "very well" reflect "forced sex," sex without the "normal lubrication" of consensual sex;
   •The “whole” vaginal area was more red than normal; the labial area was “very reddened”; and the cervix was also red; and
   • The red and irritated areas indicated to Farrell that H.R. had suffered sexual trauma.

Defense counsel did not object to this testimony at trial, but on appeal he contended, inter alia, that H.R.'s statements to Farrell constituted inadmissible hearsay and that Farrell's testimony concerning those statements (such as in second passage listed above) was improperly admitted at trial.  The Court of Appeals of Indiana first noted that defense counsel was correct that H.R.'s statements did not qualify as admissible statements for the purposes of medical treatment/diagnosis under Indiana Rule of Evidence 803(4)  because of Farrell's admission that she was collecting evidence, not treating or diagnosing H.R.  Indeed, the court found that H.R.'s statements did not qualify for admission under any hearsay exception.

The court, however, found that Farrell testified as an expert witness and noted that under Indiana Rule of Evidence 703, an expert may rely on facts “made known to the expert” in reaching her expert opinion.  It then noted that Farrell relied upon H.R.'s statements in reaching her opinions and concluded that Farrell's testimony regarding H.R.'s account of the sexual act was properly admitted based upon Farrell's status as an expert witness.  So, what was the oversight?  One answer is that the court ignored the second, most important sentence of Indiana Rule of Evidence 703

The first sentence of Rule 703 does indicate that "[t]he 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."  But the second sentence, which the court ignored, indicates that "[e]xperts may testify to opinions based on inadmissible evidence, provided that it is of the type reasonably relied upon by experts in the field."  In other words, the prosecution needed to affirmatively establish that sexual assault nurse examiners reasonably rely upon the hearsay statements of alleged victims in reaching their conclusions. See, e.g., Mills v. Berrios, 851 N.E.2d 1066, 1073 (Ind.App. 2006).  The first problem with the court's opinion in Newbill is that the court never explained whether or how this requirement was met.  In the end, though, I don't think that this omission was a huge deal because I think a good argument could be made that such reliance is reasonable.

The second problem, however, does seem to be a big deal.  While Indiana Rule of Evidence 703 allows an expert to testify about her opinions "based on [inadmissible] material not before the trier of fact, it does not expressly provide a vehicle by which the trier of fact can learn of the underlying material." Commitment of M.M. v. Clarian Health Partners, 826 N.E.2d 90, 95 (Ind.App. 2005).  In other words, while Farrell possibly could have testified about her opinions based upon what H.R. told her, she could not testify, as she did, about what H.R. actually told her. See id. ("M.M. correctly argues such hearsay cannot serve as substantive evidence to support an involuntary commitment.").  Thus, the opinion in Newbill seems to violate the Indiana Rules of Evidence.

(Readers should not that Indiana Rule of Evidence 703 is thus different from Federal Rule of Evidence 703, which provides that "[f]acts 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.").

-CM

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