- Brian Foley
Montgomery County Criminal Defense Attorney - Texas Rules of Evidence Series - RULE 703
Montgomery County Criminal Defense Attorney - Brian Foley - Board Certified Criminal Defense
Texas Rule of Evidence 703 allows an expert witness to testify to an opinion that is based solely on things that are inadmissible at trial. WHAT!?? Yes you heard correctly. An expert witness may tell the jury things that they would otherwise never get to know if the court determines that an expert in their field would normally rely on that kind of information. The best examples of this are found in books and scientific studies that the expert may testify about. “"[t]he expert may in any event disclose on direct examination the underlying facts or data." Resendiz v. State, 112 S.W.3d 541, 551 (Tex. Crim. App. 2003).
Prior to the adoption of rule 703 and under the common law in Texas an expert was restricted and could not mention facts that were not directly relevant or that were hearsay. Now an expert can base their opinion purely upon hearsay evidence. The expert may not have even reviewed any facts or witness statements in the case being tried.
Litigation on this rule has been overshadowed by complaints of violation of the confrontation clause. Because hearsay objections in criminal cases may involve "testimonial" evidence Defense Attorneys should object that admission of the expert opinion is really violative of the confrontation clause of the 6th Amendment.
The Supreme Court of the United States wrote on the topic of hearsay in criminal trials “[t]he Constitution prescribes a procedure for determining the reliability of testimony in criminal trials, and we, no less than the state courts, lack authority to replace it with one of our own devising.” Crawford v. Washington, 541 U.S. 36, 67 (2004).
The question then becomes is evidence "testimonial." Computer generated data is not testimonial. Statements made for the purpose of medical diagnosis and treatment are not testimonial either.
Nevertheless, if you'd like to have the jury get a fair understanding of how an expert made their opinion, Rule 703 is going to give you room to allow the expert to testify.
Rule 703. Bases of an Expert’s Opinion Testimony
An expert may base an opinion on facts or data in the case that the expert has been made aware of, reviewed, or personally observed. If experts in the particular field would reasonably rely on those kinds of facts or data in forming an opinion on the subject, they need not be admissible for the opinion to be admitted. Comment to 2015 Restyling: All references to an “inference” have been deleted because this makes the Rule flow better and easier to read, and because any “inference” is covered by the broader term “opinion.” Courts have not made substantive decisions on the basis of any distinction between an opinion and an inference. No change in current practice is intended.
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