Wednesday, September 28, 2011
A Family Matter: Supreme Court Of Vermont Finds Inadmissible Hearsay Improperly Admitted Under Rule 703
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. 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. (emphasis added)
As the last sentence of Rule 703 makes clear, while inadmissible evidence can sometimes form the basis for an expert witness' conclusion, that inadmissible evidence itself almost always remains inadmissible. This was a distinction recently missed by a Vermont family court as is made clear by the recent opinion of the Supreme Court of Vermont in Chickanosky v. Chicakanosky, 2011 WL 4389396 (Vt. 2011).
In Chickanosky, Margaret Chickanosky appealed from a family court order granting her ex-husband, Michael Chickanosky, sole physical and legal rights and responsibilities of their child. What precipitated this order was her ex-husband's petition to
the family court for primary physical responsibility of daughter because of a planned relocation to Missouri. He asserted that the relocation was a real, substantial, and material change in circumstances warranting a change in the award of physical rights and responsibilities. Father further asserted that it would be in daughter's best interest that he be awarded primary physical responsibility so that she could move with him and his wife to Missouri and that mother be awarded reasonable parent-child contact. Mother contended that it would be in daughter's best interest to remain with her in Vermont.
Following a four-day hearing, the court issued a written decision in July 2010. The court made extensive findings, relying on a court-ordered forensic evaluation by Dr. Joseph Hasazi, its January 2009 order and related findings and conclusions of law, and the testimony of multiple witnesses. The court found that father's primary motivation for moving to Missouri was to be closer to his wife's family. Other factors influencing father's decision to move included Missouri's lower cost of living, the tense situation with mother and its impact on daughter, and the cost of the ongoing litigation regarding their daughter.
In awarding sole physical and legal rights and responsibilities of their child to Michael Chickanosky, the family court relied not only on Dr. Hasazi's conclusions in his evaluation but also inadmissible hearsay statements which Dr. Hasazi relied upon in reaching those conclusions.
In appealing the family court's order, Margaret Chickanosky claimed that the court improperly relied upon this underlying inadmissible hearsay in reaching its determination. The Supreme Court of Vermont agreed, finding that
Contrary to the family court's analysis, the admission of Dr. Hasazi's report does not render substantively admissible the facts forming the basis of his opinions that are not otherwise admissible or admitted into evidence. It is true that in writing his report, Dr. Hasazi could rely on facts not admissible or admitted as evidence as long as the facts are of a type reasonably relied on by experts in the field....
Dr. Hasazi's use of inadmissible hearsay evidence as a basis for his expert opinion as expressed in his report does not make that hearsay suddenly admissible for its substance. Id.Rather, as we clarified in Recor:
[u]nder Rule 703, if an expert relies on the out-of-court statements of another in forming his or her opinion and if such statements are of a type reasonably relied on by experts in the particular field, then the statements—even if not independently admissible for their substance—will be admissible for the limited purpose of demonstrating the basis for the expert's opinion....
We emphasized there that Vermont Rule of Evidence 70 "is not to be treated as either an auxiliary hearsay exception, or as a backdoor to an expansive reading of existing hearsay exceptions."...In the case at hand, the family court's justification for using otherwise inadmissible statements contained within the report was based on the fact that Dr. Hasazi's report was entered into evidence by stipulation and, according to the court, "without any restrictions." This does not overcome the limits of the rule and statute governing the report's admission.
That said, the Supreme Court of Vermont still affirmed the family court's order because "independent evidence in the record support[ed] the court's finding that mother d[id] not foster independence in daughter."