EvidenceProf Blog

Editor: Colin Miller
Univ. of South Carolina School of Law

Monday, October 21, 2013

Who Made You The Expert?: Rule 705 & The Admissibility of Underlying Facts or Data

Texas Rule of Evidence 705 reads as follows:

(a) Disclosure of Facts or Data. The expert may testify in terms of opinion or inference and give the expert's reasons therefor without prior disclosure of the underlying facts or data, unless the court requires otherwise. The expert may in any event disclose on direct examination, or be required to disclose on cross-examination, the underlying facts or data.

(b) Voir dire. Prior to the expert giving the expert's opinion or disclosing the underlying facts or data, a party against whom the opinion is offered upon request in a criminal case shall, or in a civil case may, be permitted to conduct a voir dire examination directed to the underlying facts or data upon which the opinion is based. This examination shall be conducted out of the hearing of the jury.

(c) Admissibility of opinion. If the court determines that the underlying facts or data do not provide a sufficient basis for the expert's opinion under Rule 702 or 703, the opinion is inadmissible.

(d) Balancing test; limiting instructions. When the underlying facts or data would be inadmissible in evidence, the court shall exclude the underlying facts or data if the danger that they will be used for a purpose other than as explanation or support for the expert's opinion outweighs their value as explanation or support or are unfairly prejudicial. If otherwise inadmissible facts or data are disclosed before the jury, a limiting instruction by the court shall be given upon request.

I haven't yet had the chance on this blog to discuss this rule or its federal counterpart, but that's no longer the case thanks to In re Commitment of Mitchell, 2013 WL 5658425 (Tex.App.-Beaumont 2013).

As the language of Rule  705 makes clear, it is a Rule covering both the timing of disclosure and the admissibility of the facts or data that are disclosed. As noted in the Advisory Committee's Note to Federal Rule of Evidence 705,

The hypothetical question has been the target of a great deal of criticism as encouraging partisan bias, affording an opportunity for summing up in the middle of the case, and as complex and time consuming....While the rule allows counsel to make disclosure of the underlying facts or data as a preliminary to the giving of an expert opinion, if he chooses, the instances in which he is required to do so are reduced. This is true whether the expert bases his opinion on data furnished him at secondhand or observed by him at firsthand.

Therefore, while counsel under the common law typically had to disclose underlying facts or data prior to offering expert testimony, Rule 705 now typically permits post-testimony disclosure although the judge retains "the discretionary power.... to require preliminary disclosure...." In Mitchell, however, the court wasn't concerned with timing. It was concerned with admissibility.

The defendant in Mitchell was charged with aggravated sexual abuse and attempted capital murder. AT trial, two forensic psychologists testified that they had diagnosed Mitchell with paraphilia, alcoholism, and related ailments. The question on appeal was whether the trial court properly allowed for admission of the facts and data underlying their expert opinions. And, according to the court,

It was within the trial court's discretion to admit the underlying facts or data on which Proctor and Self based their opinions, and the trial court could have reasonably concluded that the evidence would aid the jury in understanding how the State's experts formed their opinions regarding Mitchell's behavioral abnormality....Both Proctor and Self presented the facts they considered in forming their opinions, and each explained how the details of Mitchell's offenses influenced those opinions regarding the ultimate issue in the case. The trial court did not abuse its discretion in allowing the State's experts to explain the offense details that were contained in the records they reviewed....The trial court gave a limiting instruction explaining that the evidence was admitted for the purpose of showing the basis of the expert's opinions, and the limiting instruction was included in the jury charge. We presume the jury followed the instruction....



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