Efficiency Expert: Supreme Court Of Kansas Opinion Reveals Differences Between Kansas And Federal Rules Of Evidence On Expert Testimony

Federal Rule of Evidence 703 provides in relevant part that

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.

As the recent opinion of the Supreme Court of Kansas in In re Colt, 2009 WL 1974517 (Kan. 2009), K.S.A. 60-456(b), is quite different from its federal counterpart, but in a way that was ultimately not relevant to the court's opinion.  

In Colt, John Colt was indefinitely civilly committed as a sexually violent predator under K.S.A. 59-29a01 et seq. Colt was committed in large part based upon the testimony of clinical psychotherapist Rex Rosenberg, who diagnosed Colt with Paraphilia Not Otherwise Specified  Paraphilia; alcohol dependence; partial sustained remission in a controlled environment; cannabis dependence; impartial sustained remission in a controlled environment; and antisocial personality disorder. Rosenberg also opined that Colt had serious difficulty controlling his behavior and would be at a high risk to commit a future sex offense. 

According to Colt in his subsequent appeal, however, one of the problems with Rosenberg's testimony was that it was largely based upon records of Colt's prior convictions which were inadmissible. This being the case, Colt claimed thatRosenberg could not have relied upon them in forming his expert opinion pursuant to K.S.A. 60-456(b), which provides that

If the witness is testifying as an expert, testimony of the witness in the form of opinions or inferences is limited to such opinions as the judge finds are (1) based on facts or data perceived by or personally known or made known to the witness at the hearing and (2) within the scope of the special knowledge, skill, experience or training possessed by the witness.  

And the Supreme Court of Kansas generally agreed with Colt, noting, "In contrast to the federal rule, Kansas has adopted the traditional approach to the question whether an expert may rely on reports from third parties, such as other experts, if the reports do not fall within any hearsay exception. Under the Kansas rule, experts' opinions based upon hearsay are not admissible in any court proceedings.

The court went on to note, however, that with regard to the subject records,

the parties not only stipulated to their foundation but also agreed that the records' admission was unnecessary, as concerns about their content could "be appropriately addressed simply by asking [Rosenberg] to refer specifically to a specific record if he has testified about something that he claims is from the record." Admission of unreliable statements by out-of-court declarants to prove the truth of the matter asserted is exactly what the hearsay rule is designed to prevent; this agreement appears to have eliminated any useful purpose our enforcement of the rule might serve; waived any initial objection to the Rosenberg's reliance on and reference to the records; and, to the extent admission of his opinion was error, invited it.

The court thus found no error with the proceedings below and affirmed Colt's civil commitment.

-CM