Saturday, January 24, 2009
It's No Fun Being An Illegal Alien, Take 2: SDNY Finds That City Can Question Civil Plaintiff About His Illegal Alien Status For Impeachment Purposes
The recent opinion of the United States District Court for the Southern District of New York in Hocza v. City of New York, 2009 WL 124701 (S.D.N.Y. 2009), is the latest example of a court finding that entering this country illegally is probative on the issue of the untruthfulness of a witness and not unduly prejudicial.
In Hocza, Roland Hocza was injured while performing on a government contract at Rikers Island and subsequently sued the City of New York for negligence and violations of various statutory provisions. The City thereafter sought a pre-trial ruling declaring that evidence indicating Hocza was an undocumented alien should be admissible as, inter alia, impeachment evidence in the event that Hocza testifies at trial.
The court agreed with the City, finding that:
"The City also seeks to present evidence with regard to Hocza's unlawful presence in the United States, arguing that the question of whether he has willfully misrepresented a material fact or perpetrated a fraud by reason of his unlawful presence in the United States bears on his credibility. Evidence of a witness's character for truthfulness is governed by Fed.R.Evid. 608. The City may inquire as to specific instances of conduct that are relevant to the witness's character for veracity, but it may not introduce extrinsic evidence as to that conduct."
Specifically, Federal Rule of Evidence 608(b) states in relevant part that:
"Specific instances of the conduct of a witness, for the purpose of attacking or supporting the witness' character for truthfulness...may not be proved by extrinsic evidence. They may, however, in the discretion of the court, if probative of truthfulness or untruthfulness, be inquired into on cross-examination of the witness (1) concerning the witness' character for truthfulness or untruthfulness, or (2) concerning the character for truthfulness or untruthfulness of another witness as to which character the witness being cross-examined has testified."
"Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence."
So, according to the district court in Hocza, a witness' status as an illegal alien makes it more likely that he is lying than a witness who is a U.S. citizen or a legal alien, and this probative value on the issue of untruthfulness is not substantially outweighed by the danger of unfair prejudice by introducing the possibility of invidious discrimination on the basis of alienage.
When I posted an entry about an Eighth Circuit opinion back in December which reached a similar conclusion, I ended by noting,
"I am really torn on the issue of whether courts should generally allow this line of questioning and whether a judge's decision to allow such questioning despite a timely objection should form the basis for reversal."
Thinking about this issue some more, I strongly disagree with the court's conclusion in Hocza. I don't think that a person's status as an illegal alien tells us anything about the likelihood that they will be an honest or dishonest witness. It tells us that the person was trying to make a better life for himself, his family, and/or offspring yet to come. But if an illegal alien were to tell me what he observed at a crime scene, I would trust him no less than a legal alien or U.S. citizen. But, in effect, courts making decisions such as the one in Hocza are telling us that we should draw a distinction, that we have reason to distrust the illegal alien based upon the way that he entered the country. And according to these courts, not only does this evidence have this probative value, but that value is not substantially outweighed by the danger of invidious discrimination. But isn't the alleged probative value of this evidence invidious discrimination in and of itself?
Friday, January 23, 2009
None of Your Business: Fifth Circuit Opinion In Kroger Robbery Appeal Raises Fascinating Hearsay Issue
The recent opinion of the Fifth Circuit in United States v. Dunigan, 2009 WL 117418 (5th Cir. 2009), raises a fascinating evidentiary issue, even though it was one that the Fifth Circuit did not need to address.
In Dunigan, shortly after a bank, located in a Kroger grocery store, opened for business, a man entered it, jumped over the top of the counter, pointed a weapon at a bank employee's face, and demanded that she give him the money. A witness claimed that after the man stole the money, the witness saw a white Dodge Avenger with a license plate containing the letters "H" and "Q" leaving the area.
FBI Agent Kleinlein subsequently investigated the robbery, and when he searched the area surrounding the store for a white Dodge Avenger, he locating one with the license plate H01XHM. Thinking that the witness had misidentified the "Q," Kleinlein contacted the Texas Department of Transportation ("TxDOT") and found out that there was no white Dodge Avenger registered in Texas with a "Q" in the license plate.
Kleinlein thereafter obtained a search warrant for the vehicle and the apartment of its registered owner, Samantha Mattingly, who was Jonas N. Dunigan's girlfriend. When Kleinlein searched the apartment, he found several items similar to items that witnesses saw on the robber during the robbery (including a Kroger shopping bag), and "Dunigan's physical appearance was also similar to the descriptions given by witnesses."
Kleinlein was later charged with robbery and convicted after, inter alia, Kleinlein testified about his investigation, including his call to TxDOT. Thereafter, he appealed, claiming, among other things, that the district court erred by allowing Kleinlein's testimony regarding his call to TxDOT because it was inadmissible hearsay.
The district court had allowed for the admission of Kleinlein's testimony pursuant to Federal Rule of Evidence 803(7), which provides an exception to the rule against hearsay for:
"[e]vidence that a matter is not included in the memoranda reports, records, or data compilations, in any form, kept in accordance with the provisions of [the business records exception], to prove the nonoccurrence or nonexistence of the matter, if the matter was of a kind of which a memorandum, report, record, or data compilation was regularly made and preserved, unless the sources of information or other circumstances indicate lack of trustworthiness."
The Fifth Circuit, however, correctly found that it did not need to address this issue because "[h]earsay must be used 'to prove the truth of the matter asserted,' and Kleinlein was testifying only to describe how he eventually located Dunigan, not to prove that there were no Dodge Avengers with a 'Q' on the licnse plate." Thus, because Kleinlein's testimony was not hearsay, the court did not need to apply a hearsay exception.
But if Kleinlein's testimony were in fact hearsay, the Fifth Circuit would have needed to apply a different hearsay exception than the one applied by the district court. That is because Federal Rule of Evidence 803(7) covers the absence of entries in the records of a private business. Meanwhile the Rule that covers the absence of entries in the records of public offices or agencies such as TXDOT is Federal Rule of Evidence 803(10). So, at first blush, one might say that Kleinlein's testimony would clearly have been admissible under Federal Rule of Evidence 803(10) because it concerned the absence of an entry in the records of a public office or agency.
But, just as Federal Rule of Evidence 803(7) is the converse of the business records exception to the rule against hearsay, Federal Rule of Evidence 803(10) is the converse to Federal Rule of Evidence 803(8), the public records exception to the rule against hearsay, which provides an exception to the rule against hearsay for:
"[r]ecords, reports, statements, or data compilations, in any form, of public offices or agencies, setting forth (A) the activities of the office or agency, or (B) matters observed pursuant to duty imposed by law as to which matters there was a duty to report, excluding, however, in criminal cases matters observed by police officers and other law enforcement personnel, or (C) in civil actions and proceedings and against the Government in criminal cases, factual findings resulting from an investigation made pursuant to authority granted by law, unless the sources of information or other circumstances indicate lack of trustworthiness."
Under this Rule, courts typically admit Department of Transportation records/reports under Federal Rule of Evidence 803(8)(C) in civil actions and against the Government in criminal cases. See, e.g., Robbins v. Whelan, 653 F.2d 47, 52 (1st Cir. 1981). But, based upon the plain language of Federal Rule of Evidence 803(8)(C), such DOT records/reports are inadmissible against a defendant in a criminal trial.
So, this is the fascinating evidentiary issue. Obviously, Federal Rule of Evidence 803(8)(C) precludes the admission of DOT records/reports against a defendant in a criminal trial, but does its converse, Federal Rule of Evidence 803(10), preclude the admission of evidence of the absence of entries in DOT records/reports? I would think that because the Rules serve similar interests and because of the connection between the two Rules, Federal Rule of Evidence 803(10), should preclude the admission of this evidence. But the Fifth Circuit didn't have to address this issue, and I'm not aware of any court that has.
[EDIT: Willliam A. Woodruff of the Campbell University School of Law wrote me and noted that DOT records would likely be covered by Federal Rule of Evidence 803(8)(A) or Federal Rule of Evidence 803(8)(A), not Federal Rule of Evidence 803(8)(C). And he is right. The Advisory Committee's Note to Rule 803 states that Rule 803(8)(C) will cover "the so-called 'evaluative' report" while Rule 803(8)(B) will govern cases such as T'Kach v. United States, 242 F.2d 937 (5th Cir. 1957), which dealt with the "affidavit of [a] White House personnel officer that [a] search of records showed no employment of accused, charged with fraudulently representing himself as an envoy of the President." What happened in the Kroger robbery appeal seems analogous to the situation in T'Kach. Of course, that raises the question of whether what happened in the Kroger case consisted of "matters observed by police officers and other law enforcement personnel," which would then make the evidence inadmissible under Rule 803(8)(b), which doesn't apply in criminal cases.]
Thursday, January 22, 2009
The recent opinion of the Second Circuit in United States v. Kelley, 2009 WL 19083 (2nd Cir. 2009), seems to me to have reached the correct conclusion regarding the admissibility of a corporate tax return signed by a managing partner of a defendant's corporation. But I think that it did so on the wrong grounds.
In Kelley, Kevin O. Kelley, who owned a majority interest in First Venture Leasing (FVL), appealed from his convictions on four counts of securities fraud and three counts of wire fraud. And part of the basis for his appeal was that the prosecution improperly secured these convictions by presenting evidence of FVL tax returns in violation of his rights under the Confrontation Clause.
Readers of this blog know that in its opinion in Crawford v. Washington, the Supreme Court
essentially found that the Confrontation Clause of the U.S. Constitution is violated when hearsay is "testimonial," admitted against a criminal defendant, and the hearsay declarant does not testify at the defendant's trial, unless (1) the declarant was unavailable for trial, and (2) the defendant was previously able to cross-examine the declarant. The Court in Crawford set forth various formulations of the term "testimonial," with the most commonly adopted one defining a "testimonial" statement as one that "was made under circumstances which would lead an objectively reasonable declarant to believe or anticipate that the statement would be available for use against an accused at a later trial.
Based upon Crawford, it is easy to see why the Second Circuit found that the Confrontation Clause was not violated by introduction of FVL's tax returns which were signed by a managing partner. It found no problem because the tax returns were not "testimonial" in that they were not prepared with the expectation that they would be used at a later trial (unlike, say, statements made to the police).
But in my mind, the Second Circuit didn't even need to get to this step of the analysis because the Confrontation Clause did not cover the tax returns. As the Second Circuit noted, the tax returns were admissible notwithstanding the rule against hearsay based upon Federal Rule of Evidence 801(d)(2)(D), which indicates that:
"A statement is not hearsay if...[t]he statement is offered against a party and is...a statement by the party's agent or servant concerning a matter within the scope of the agency or employment, made during the existence of the relationship."
In other words, because Kelley and the managing partner were business partners, the tax returns signed by the managing partner were admissible against Kelley as if he had signed the returns himself. Therefore, the Confrontation Clause was inapplicable. As the Seventh Circuit noted in United States v. Chappell, 698 F.2d 308, 312 (7th Cir. 1983),
"The exclusion of party admissions from the definition of hearsay, unlike most hearsay exceptions, is not grounded on a probability of trustworthiness but rather on the idea that a party cannot object to his failure to cross-examine himself. See 4 Weinstein and Berger, Weinstein's Evidence ¶ 801(d)(2) (1981)....This Court has repeatedly held...that extrajudicial statements properly admissible under FRE 801(d)(2)(E) (admissions by coconspirators) do not violate a defendant's Sixth Amendment rights....The similarities between coconspirators and agents are readily apparent, and we see no reason to differentiate between them for Confrontation Clause analysis purposes."
Wednesday, January 21, 2009
Mama Couldn't Be Persuaded: Eleventh Circuit Incorrectly Applies Best Evidence Rule To Attempt To Refresh Recollection
In its recent opinion in United States v. Henry, 2009 WL 73156 (11th Cir. 2009), the Eleventh Circuit properly found that the defendant's mother/tax preparer could not testify regarding the amount of his gambling winnings, but it seemingly did so at least partially on the wrong grounds.
In Henry, Tony Henry appealed his convictions for conspiracy to possess with intent to distribute crack cocaine, possession with intent to distribute a quantity of cocaine base, distribution of crack cocaine, and knowingly opening, using, and maintaining a place for the purpose of manufacturing and distributing cocaine base. And, according to his appellate brief, "[t]he primary focus of [his] defense was that he achieved financial success as a gambler" while "[t]he Government contended he made his money through the sale of narcotics."
At trial, Henry attempted to establish this defense by calling his mother, Karen Simmons, who testified that she was Henry's "tax preparer." While Simmons was on the witness stand,
"Henry sought to introduce into evidence...documents that she stated were photocopies of 'W-2G' forms received from casinos reflecting Henry's gambling winnings for several years. She stated that they were used to prepare Henry's income tax returns."
The district court, however, found that the W-2G forms were hearsay and not covered by the business records exception. Henry thereafter attempted to question Simmons regarding whether she knew, from preparing Henry's tax returns, what amounts of money had been recorded on the forms. But the court again rebuffed this attempt, finding that "to the extent that Henry was asking Simmons about his tax returns, her testimony would be excluded by the best evidence rule." Finally, "[t]he court also refused to allow Henry to use the excluded forms to refresh Simmons's recollection regarding the amount of Henry's gambling winnings."
On Henry's appeal, the Eleventh Circuit affirmed all three of these rulings, and I have no problems with the court's logic regarding the first two rulings. But I disagree with its logic on the third. According to the Eleventh Circuit, the district court acted properly in making its third ruling because Simmons' proposed "testimony regarding her memories of Henry's tax returns was barred by the best evidence rule."
The best evidence rule, Federal Rule of Evidence 1002, states that:
"To prove the content of a writing, recording, or photograph, the original writing, recording, or photograph is required, except as otherwise provided in these rules or by Act of Congress."
Meanwhile, Federal Rule of Evidence 1003 states that:
"A duplicate is admissible to the same extent as an original unless (1) a genuine question is raised as to the authenticity of the original or (2) in the circumstances it would be unfair to admit the duplicate in lieu of the original."
Thus, you can see why Simmons' proposed testimony regarding what was recorded on Henry's tax returns was inadmissible based upon the best evidence rule because Henry produced neither those returns nor photocopies of them at trial.
But at the same time, Henry did produce photocopies of the W-2G forms at trial, so the best evidence rule should have provided no bar to Simmons being able to testify about Henry's gambling winnings if those forms refreshed her recollection pursuant to Federal Rule of Evidence 612.
But there was another bar to Simmons' proposed testimony. And that is, as noted above, the W-2G forms were hearsay and, apparently, the only basis for Simmons' proposed testimony. Thus, Simmons' proposed testimony itself would have been hearsay and inadmissible. Therefore, the Eleventh Circuit reached the correct conclusion but likely based upon the wrong reasoning.
Tuesday, January 20, 2009
Kentucky Fried Opinion: Hospital's Appeal Reveals That Kentucky Courts Use The Wrong Test In Bias-Liability Insurance Cases
The recent opinion of the Court of Appeals of Kentucky in University Medical Center, Inc. v. Beglin, 2009 WL 102800 (Ky.App. 2009), reveals that Kentucky court are applying the wrong analysis when determining whether evidence of liability insurance is admissible to prove bias.
In Beglin, Jennifer Beglin died after being treated for Chron's Disease at University Medical Center d/b/a University of Louisville Hospital. Beglin's husband subsequently sued several defendants, including the hospital and Drs. Susan Galandiuk and Dr. Guy Lerner. After trial, the jury awarded the husband $9,047,003.09 after finding that the hospital, or its employees and agents, acted negligently in causing his wife's death. However, two employees who were found not to have acted negligently were Galandiuk and Lerner, after both provided testimony favorable to the other at trial.
The hospital subsequently appealed, claiming, inter alia, that the trial court erred by failing to permit it to introduce, as proof of the doctors' bias, evidence that Dr. Galandiuk and Dr. Lerner were insured by the same malpractice carrier (meaning that if either was found liable, the other's insurance rates would go up). The court noted that the issue was governed by Kentucky Rule of Evidence 411, which states that:
"Evidence that a person was or was not insured against liability is not admissible upon the issue whether the person acted negligently or otherwise wrongfully. This rule does not require the exclusion of evidence of insurance against liability when offered for another purpose, such as proof of agency, ownership, or control, or bias or prejudice of a witness."
Of course, as is clear from the text of this Rule, if evidence of liability insurance is offered to prove bias, there is no Rule 411 problem; instead, the court simply needs to determine under Kentucky Rule of Evidence 403 whether the evidence should be excluded because its probative value is substantially outweighed by the danger of unfair prejudice, i.e., the danger that jurors will find against a party because they know that insurance will cover any award of damages. So, in Beglin, the court should have admitted the evidence that Dr. Galandiuk and Dr. Lerner were insured by the same malpractice carrier unless it found that its probative value for establishing bias was substantially outweighed by the danger that the jurors would find against them if they knew that insurance would cover any award of damages against them.
But that's not what the Court of Appeals of Kentucky did. Instead, it cited to its previous opinion in the factually similar Wallace v. Leedhanachoke, 949 S.W.2d 624, 628 (Ky.App.1996), where it found that:
"The mere fact that the two physicians shared a common insurance carrier-absent a more compelling degree of connection-does not clearly evince bias by the expert, and its arguable relevance or probative value is insufficient to outweigh the well-established rule as to the inadmissibility of evidence as to the existence of insurance....We cannot conclude that evidence indicating that Sachetello might experience rising insurance rates is so probative as to the issue of his credibility or bias as to outweigh the prejudicial import of evidence of insurance."
Applying this reasoning, the court found that the trial court did not err in excluding similar evidence in Beglin. As the above language makes clear, however, it applied the wrong analysis. According to the Court of Appeals of Kentucky, the evidence of that Dr. Galandiuk and Dr. Lerner were insured by the same malpractice carrier was inadmissible because its probative value didn't outweigh its unfairly prejudicial effect. But under Rule 403, it didn't need to make such a finding for the evidence to be admissible. The probative value of the evidence could have equaled its unfairly prejudicial effect or the prejudicial effect of the evidence could have even outweighed its probative value, but to a non-substantial degree, and the court would have been obligated to admit it.
Monday, January 19, 2009
Just Plane Dumb: Arizona Opinion In Bounty Hunters' Case Against Southwest Reveals That "Character" Evidence Is Admissible To Prove Notice
The recent opinion of the Court of Appeals of Arizona in Hudgins v. Southwest Airlines Co., 2009 WL 73251 (Ariz.App. Div. 1 2009), reveals that "character evidence" is admissible to prove notice. It also reveals that bounty hunters cannot board flights with weapons.
In Hudgins, Thomas Hudgins and Leroy Devore were bounty hunters who flew from Baltimore to Phoenix on a Southwest flight to apprehend a fugitive in Arizona. Before making the trip, they called Southwest to obtain instructions on how to lawfully transport handguns, and a representative told them to arrive two hours early, bring photo identification, and have departmental letters setting forth their itinerary and explaining their purpose for transporting weapons.
After arriving at the airport, Hudgins and Devore presented cards at the ticket counter identifying themselves as bail enforcement agents with H & D Enterprises and provided the requested information. A Southwest agent thereafter provided them forms entitled, "Notice to Armed Individuals," (NAI) and, in a space provided to list the individual's "[l]aw enforcement or authorizing [a]gency," Hudgins wrote "H & D Enforcement Agent" and Devore wrote "H & D Enterprises."
Southwest personnel did not ask any questions of the men and failed to realize they were not law enforcement agents. Indeed, Hudgins and Devore asked to check their weapons because they did not have a fugitive in custody, but a Southwest employee told them to take the weapons on board, and another employee signed the NAI forms as written authorization to do so.
Subsequently, the lead flight attendant took the NAI forms to the captain, who spoke with a Baltimore terminal agent and was mistakenly told that Hudgins and Devore worked for HUD. But near the end of the flight, Devore informed another flight attendant that he was a bounty hunter, and the captain was eventually told that the men were bounty hunters, not HUD employees. Because the captain did not deem Hudgins and Devore to be an immediate threat, he continued the flight to Phoenix, but when he called the Phoenix ground operations for a gate assignment, he followed what he believed to be applicable Southwest flight operation manual procedures by requesting that law enforcement meet the airplane at the gate for assistance. And while neither the captain nor any other Southwest employee asked law enforcement agents to arrest Hudgins and Devore, they were indeed arrested upon landing for carrying concealed dangerous weapons on an aircraft in violation of 49 U.S.C. Section 46505(b)(1).
Later, however, the government dropped all charges against Hudgins and Devore, and the FAA decided not to pursue any civil penalties against them because "it appear[ed] every attempt was made to comply with instructions given to [them] by the airline." Hudgins and Devore, however, subsequently sued Southwest based upon its acts and omissions on the date of the flight and during the ensuing federal investigations. And while the trial court entered summary judgment for Southwest on all claims, the Court of Appeals of Arizona later reversed (1) the entry of summary judgment on the cause of action sounding in negligence, and (2) the trial court's ruling that as a matter of law Hudgins and Devore were not entitled to punitive damages. On remand, a jury thereafter found Southwest liable to Hudgins and Devore for $500,000 each in compensatory damages and $4 million each in punitive damages.
Southwest subsequently appealed, claiming, inter alia, that the trial court erred by allowing for the admission of a letter from the FAA to SWA's in-house attorney concerning a prior
"incident in which other bounty hunters were permitted to board a SWA flight with weapons. The letter stated that although the bounty hunters had presented false information, SWA personnel had failed to ask basic questions of them that would have prevented the deception. Significantly, the letter further provided as follows:
Unfortunately this appears to be a prevelant [sic] problem in Arizona where, at least some individuals calling themselves Bail Recovery Agents or Bounty Hunters have been able to present themselves as being authorized to travel armed when indeed, they are not.
The letter closed by warning SWA to review its procedures to prevent future violations, which could result in the assessment of civil penalties."
Southwest claimed that this letter constituted inadmissible propensity character evidence, but the Court of Appeals of Arizona correctly rejected this argument, finding that:
"[t]he letter demonstrated that SWA had notice prior to [the incident at issue] that 'bail recovery agents' were not authorized by the FAA to fly with weapons and that close inspection of identifying documents was necessary to prevent such occurrences....[B]ecause the letter was not introduced to prove SWA acted in conformity with its actions in the [prior] incident but to show notice, the letter fell within a Rule 404(b) exception."
Southwest also claimed that the probative value of the letter was substantially outweighed by its unfairly prejudicial effect, but the court also correctly rejected this argument, finding that:
(1) "the FAA letter did not say that SWA had a 'prevalent problem' in allowing bounty hunters to fly with weapons but that the problem existed in Arizona. Indeed, the fact the FAA only issued a warning to SWA for a single incident suggested SWA did not have a prevalent problem;" and
(2) "at SWA's request, the trial court gave a limiting instruction to the jury regarding the FAA letter."
Sunday, January 18, 2009
Meet Virginia: Supreme Court of Virginia Opinion Reveals That Virginia Has Different Expert Evidence Rule Than Do The Federal Rules
In Wynn, the Commonwealth filed a petition in circuit court for the civil commitment of Freddie Lee Wynn as a sexually violent predator under the Sexually Violent Predators Act. At the time, Wynn was incarcerated on two convictions for aggravated sexual battery of a child under age thirteen. After the circuit court determined that probable cause existed to believe Wynn was a sexually violent predator, Wynn elected to have a trial by jury. At the conclusion of the evidence, the jury returned a verdict finding that Wynn was not a sexually violent predator, and the circuit court entered an order in accordance with the jury verdict.
The Commonwealth subsequently appealed, claiming that the circuit court made two erroneous evidentiary rulings:
"The first evidentiary ruling occurred during the Commonwealth's direct examination of Dr. Miller [who testified that Wynn suffers from pedophilia, paraphilia, and antisocial personality disorder]. The Commonwealth attempted to elicit testimony about allegations of sexual misconduct by Wynn made by children other than the victim involved in Wynn's two aggravated sexual battery convictions. Dr. Miller had learned about those allegations, which concerned sexual abuse that supposedly occurred during the same time frame as the sexual batteries for which Wynn was convicted, by reviewing documents in a file maintained by the Assistant Commonwealth's Attorney who had prosecuted Wynn. When the Commonwealth asked Dr. Miller to relate specific information about those other allegations, Wynn objected, stating that the allegations were 'hearsay upon hearsay' and he could not cross-examine either the accuser, the person who prepared the documents detailing the allegations, or the individual who created the file. In response, the Commonwealth asserted the allegations constituted information Dr. Miller relied upon in arriving at his conclusions and the jury could decide what weight to give his opinions based on those allegations."
The circuit court determined that "Dr. Miller could testify that there were allegations from other children, but had to omit the specific details of those allegations."
On appeal, the Commonwealth claimed that the details of those allegations should have been admissible pursuant to Federal Rule of Evidence 703, which states 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. 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. 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."
As is clear from the last sentence of this Rule, otherwise inadmissible facts or data upon which an expert relies can be admissible if they successfully navigate the probative value/prejudicial effect tightrope, which the Commonwealth claimed that the evidence at issue did. But the problem for the Commonwealth was that Wynn was heard in Virginia state court and was thus governed by the Virginia Code, not the Federal Rules of Evidence.
And as the Supreme Court of Virginia correctly noted, while the analogous Virginia Code Section 801.401.1 "was based, in part, on Federal Rules of Evidence 703 and 705, there is a significant difference between our statute and Federal Rule of Evidence 703." This different is evident from the text of Virginia Code Section 801.401.1, which states that:
"In any civil action any expert witness may give testimony and render an opinion or draw inferences from facts, circumstances or data made known to or perceived by such witness at or before the hearing or trial during which he is called upon to testify. The facts, circumstances or data relied upon by such witness in forming an opinion or drawing inferences, if of a type normally relied upon by others in the particular field of expertise in forming opinions and drawing inferences, need not be admissible in evidence.
The expert may testify in terms of opinion or inference and give his reasons therefor without prior disclosure of the underlying facts or data, unless the court requires otherwise. The expert may in any event be required to disclose the underlying facts or data on cross-examination.
To the extent called to the attention of an expert witness upon cross-examination or relied upon by the expert witness in direct examination, statements contained in published treatises, periodicals or pamphlets on a subject of history, medicine or other science or art, established as a reliable authority by testimony or by stipulation shall not be excluded as hearsay. If admitted, the statements may be read into evidence but may not be received as exhibits. If the statements are to be introduced through an expert witness upon direct examination, copies of the statements shall be provided to opposing parties thirty days prior to trial unless otherwise ordered by the court."
This text makes clear that Virginia Code Section 801.401.1 "does not contain th[e] proviso" that otherwise inadmissible facts or data upon which an expert relies can be admissible if they successfully navigate the probative value/prejudicial effect tightrope. Thus, the Supreme Court found that there was no basis for the admission of the details of the hearsay allegations against Wynn and affirmed the circuit court's judgment (after finding that the Commonwealth's other evidentiary objection was also without merit).