Jeresy Sure: New Jersey Opinion Reveals Key Difference Between Federal And New Jersey Rule Of Evidence 703

Federal Rule of Evidence 703 provides 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. 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.

Meanwhile, New Jersey Rule of Evidence 703 provides 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 other words, New Jersey Rule of Evidence 703 does not have the final sentence contained in its federal counterpart.  And, as the recent opinion of the New Jersey Superior Court, Appellate Division, in In re Civil Commitment of T.J.T., 2010 WL 2991041 (N.J.Super.A.D. 2010), makes clear, this difference is meaningful.

In T.J.T., T.J.T. appealed from an order that continued his commitment to the Special Treatment Unit (STU) as a sexually violent predator under the Sexually Violent Predator Act (SVPA). That order was based in part on the expert testimony of Dr. Roger Harris, a psychiatrist. In turn, Dr. Harris's testimony was based in part on reports by other psychiatrists or psychologists that had previously treated or examined T.J.T.  

T.J.T. claimed that Dr. Harris's testimony was impermissibly based upon this inadmissible hearsay, but the Superior Court of New Jersey, Appellate Division, disagreed, finding that Dr. Harris's testimony was proper under New Jersey Rule of Evidence 703, concluding that

In rendering its decision, the court relied upon the diagnoses of the State's testifying witnesses who it found credible, not the diagnoses in the reports. Nor did Dr. Harris merely adopt the opinions of the non-testifying experts "because those opinions [were] congruent with the ones he...reached."...Rather, he referenced the non-testifying experts' reports for the purpose of apprising the trial court of the basis of his opinion. According to Dr. Harris, he only reviewed the reports of non-testifying experts "to see how they marshal support for their diagnosis and...make their ultimate opinion. I review that and give that some weight, but ultimately, I form my own opinion of diagnosis and whether or not [T.J.T.] meets criteria for continued civil commitment."

Of course, this block quote makes clear that the State also introduced into evidence the hearsay reports which formed the partial basis for Dr. Harris' testimony. Courts applying Federal Rule of Evidence 703 only could have allowed for the admission of the reports if they found that their probative value substantially outweighed their prejudicial effect. New Jersey Rule of Evidence 703, however, does not employ such a modified balancing test, and, as the court made clear, in New Jersey, "hearsay statements relied upon by an expert are ordinarily admissible for the limited purpose of apprising the jury of the basis of the expert's opinion, provided they are of a type reasonably relied upon by experts in the field."

-CM