In my last column, “New York's 'Professional Reliability' Rule,” NYLJ (Aug. 1, 2018, p. 3, col. 3), I addressed the professional reliability rule governing expert testimony presented in New York state courts. As discussed, this rule allows an expert to rely upon, in forming an opinion, facts obtained by the expert from an out-of-court source, i.e., material not admitted into evidence at the trial, provided (1) it is of the kind accepted in the relevant profession as reliable in forming a professional opinion; (2) the material relied upon by the expert is reliable; and (3) it does not constitute the sole or principal basis for the expert's opinion. Thus, an expert may rely upon statements which were not admitted as barred by the hearsay rule, documents which have not been authenticated, or evidence declared inadmissible by a specific evidentiary rule, e.g., character evidence rule. In essence, the professional reliability rule “cede[s] to experts the discretion to make conclusions the way they normally would in their field.” Park et al., Evidence Law (3d ed.) §14.05 at pp. 548-49.

Assuming that an expert's opinion is admissible, even though it is based upon inadmissible evidence, another issue is present. May the reliable but out-of-court and inadmissible statement or document upon which the opinion is based also be admitted? Expressed differently, does the inadmissible evidence become admissible because of its use as a basis for an expert's opinion? Left unaddressed in my last column, the issue will now be discussed.

Federal Rule of Evidence 703

Discussion will start with Federal Rule of Evidence 703. This rule, as amended Dec. 1, 2001, provides:

An expert may base an opinion on facts or data in the case that the expert has been made aware of 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. But if the facts or data would otherwise be inadmissible, the proponent of the opinion may disclose them to the jury only if their probative value in helping the jury evaluate the opinion substantially outweighs their prejudicial effect.

The amendment added the italicized language to address different results in the federal courts on whether the “basis evidence” relied upon by the expert becomes admissible by reason of the expert's reliance on it. Advisory Committee Note to 2000 amendment to FRE 703, 28 U.S.C. App., p. 361 (Advisory Committee Note). (The Note also references the conflicting views of commentators.) Under the amended rule “basis evidence” may be disclosed to the jury under appropriate circumstances. The avowed purpose for allowing this disclosure is that it may “assist the jury to evaluate the expert's opinion.” Advisory Committee Note, 28 U.S.C. App., p. 361. As the U.S. Supreme Court observed in Williams v. Illinois, 567 U.S. 50, 78 (2012), the thinking was that “disclosure of basis evidence can help the factfinder understand the expert's thought process and determine what weight to give to the expert's opinion.”

While the basis evidence may be admissible, the rule as amended makes clear that admissibility and disclosure is not achieved merely because the expert's opinion is admitted. Rather, basis evidence is admissible only when the court determines that its “probative value in helping the jury evaluate the opinion substantially outweighs [its] prejudicial effect.” This condition creates, according to the amendment's drafters, “a presumption against disclosure.” Advisory Committee Note, 28 U.S.C. App., p. 361. The amendment, in short, creates a high standard for admissibility, which, as experience in the federal courts has shown, will not often be met. See 1 Weinstein's Evidence Manual, §13.03(3) (collecting cases).

While the amended rule does not identify the “prejudicial effect” to be guarded against, it apparently is referring to the jury's potential misuse of the basis evidence for substantive purposes. In this regard, the drafters of the amendment directed that the court “must give a limiting instruction upon request, informing the jury that the underlying information must not be used for substantive purposes;” and that in determining admissibility of the basis evidence in the first instance, the court “should consider the probable effectiveness or lack of effectiveness of a limiting instruction under the particular circumstances.” Advisory Committee Note, 28 U.S.C. App., p. 361.

New York Law

With the above discussion of FRE 703's specified standard governing the admissibility of basis evidence in federal court serving as a backdrop, New York law can now be addressed. Notably, when the Court of Appeals in 1974 adopted the professional reliability rule in People v. Sugden, 35 N.Y.2d 453 (1974), it was clearly seeking to harmonize New York law governing the permissible bases for an expert's opinion with the then proposed, but not yet enacted, FRE 703. Id. at 459. However, this adoption did not indicate that the Court of Appeals was also creating a rule that would as well permit the admissibility of the expert's basis evidence as the proposed FRE 703 did not address that issue. Since Sugden and the addition in 2001 of the disclosure standard to FRE 703, the Court of Appeals has not directly addressed the issue. However, in three decisions the court has commented, albeit in dicta, on the issue, giving mixed signals as to whether it would create a disclosure rule.

In People v. Goldstein, 6 N.Y.3d 119 (2005), the court stated that it is “questionable” that an expert “may repeat to the jury all the hearsay information on which [the opinion] was based.” Id. at 126-27. The court also quoted, favorably, a commentator's observation that the “factually implausible, formalist claim that experts' basis testimony is being introduced only to help in the evaluation of the expert's conclusions but not for its truth ought not permit an end-run around a constitutional prohibition [against hearsay statements that are testimonial].” Id. at 128.

In Hinlicky v. Dreyfus, 6 N.Y.3d 636 (2006), decided four months after Goldstein, the court noted the need for limits on admitting the basis of an expert's opinion to avoid establishing a conduit for hearsay. Id. at 648. In this connection, the court cited with approval FRE 703's standard governing the admissibility of basis evidence as a rule suitable for New York's professional reliability rule. Id. at 648, n. 6.

In Matter of State of New York v. Floyd Y., 2 N.Y.3d 95 (2013), the Court of Appeals specifically addressed the extent to which an expert in a Mental Hygiene Law Article 10 civil commitment proceeding against a detained sex offender could disclose inadmissible hearsay to a jury in order to explain the basis of the expert's opinion. The court initially held that such a proceeding was subject to procedural due process. As due process protects against the admission of unreliable hearsay where such hearsay is more prejudicial than probative, basis evidence when offered into evidence was subject to three rules. First, reliability of the hearsay must be established. Id. at 109. Second, the hearsay may be disclosed to the jury, not for its truth, but only for the purpose of assisting the jury in its evaluation of the expert's opinion. Id. at 108. In the connection, the court commented that jurors in an Article 10 proceeding “cannot comprehend or evaluate the testimony of an expert without knowing how and on what basis the expert formed an opinion.” Id. To reinforce this point, the court required the giving of limiting instructions informing the jury of the limited use of the basis evidence. Id. Third, the court before allowing disclosure “must determine that the probative value in helping the jury evaluate the expert's opinion substantially outweighs its prejudicial effect.” Id. at 109.

Professors Barker and Alexander have observed that the court's “analysis was heavily influenced by FRE 703's general approach to the disclosure of 'basis hearsay.'” Evidence in New York State and Federal Courts (2d ed) §7:12 (2017-18 Supp). While Floyd Y. may thus strongly suggest that the court would adopt the FRE 703 disclosure standard for civil and criminal cases, Floyd Y. may also be limited to its facts, namely, a MHL Article 10 proceeding. Suffice it to say, until the Court of Appeals directly addresses the issue, the issue is an “open” one. Hinlicky, 6 N.Y.3d at 648.

In the aftermath of Goldstein, Hinlicky and Floyd Y., the Appellate Division departments are split on the issue of the admissibility of basis evidence. The Second Department follows the rule that basis evidence relied upon by the expert is not admissible. This rule was established in Wagman v. Bradshaw, 292 A.D.2d 84 (2d Dep't 2002). The court held it was reversible error for a chiropractor called by the plaintiff to testify to a radiologist's report of his reading of an MRI where the radiologist did not testify, the chiropractor had not examined the films, and the MRI films were not admitted into evidence. This testimony was a violation of the hearsay rule. Id. at 87. The court was obviously troubled by the fact that the chiropractor was acting as a conduit for the opinion of the radiologist, who could not be cross-examined. Admission of the testimony also violated the best evidence rule as the chiropractor was proving by his testimony the contests of the radiologist's written report. Id. at 87-88. Overall, Wagman expressed strong skepticism about basis evidence ever being admitted.

The Third Department on the other hand has adopted a rule which permits basis evidence to be disclosed to the jury but only for the limited purpose of informing the jury of the basis of the expert's opinion. This rule was recognized in O'Brien v. Mbugua, 49 A.D.3d 937 (3d Dep't 2008). The court held no error was present when the plaintiff's treating physician testified to the results of an MRI he ordered in the course of treating plaintiff, as reported by the radiologist who examined the actual films and how these results aided his diagnoses and treatment of plaintiff. Id. at 937-938. Since the testimony was clearly introduced to help the jury evaluate the treating physician's diagnosis, the testimony was not being introduced for a truth purpose, and thus was not hearsay. Id. at 938. As to a best evidence issue posited by the testimony, the court, after noting the best evidence issue, did not address it as no objection to the testimony on the ground. Id. at 937. Overall, the Third Department expressed a willingness to allow basis evidence to come in, subject to a best evidence objection, especially where, as in O'Brien, the expert is not acting as a conduit for the opinion of another person not subject to cross-examination.

The Fourth Department has followed the Third Department, stating that “hearsay testimony given by experts is admissible for the limited purpose of informing the jury of the basis of the expert's opinion and not for the truth of the matters related.” Matter of State of New York v. Wilkes, 77 A.D.3d 1451, 1453 (4th Dep't 2010) (MHL Article 10 proceeding). Of note, the Fourth Department, after citing the Court of Appeals' observation in Goldstein—it was a “questionable assumption” whether basis evidence was even admissible—stated it was following a “well-settled” rule. Id. at 1453. The First Department has not directly addressed the issue.

A Rule for New York

Should New York adopt a rule that allows basis evidence to be admitted even though the evidence would otherwise be inadmissible because its admission would violate the hearsay and best evidence rules? It should, but such a rule must be carefully crafted to ensure that the risks the hearsay and best evidence rules are designed to prevent are minimized. This is especially true with regard to hearsay. As stated by Appellate Division Justice John Curran: “It takes very little investigation to see how a broad exception to the hearsay rule could be used and abused. Under the guise of exploring an expert's opinion, volumes of hearsay—untested by cross-examination—could be presented to a jury. It will not just be a 'conduit' for hearsay, it will cause a flood.” Curran, “The Professional Reliability Basis for Expert Opinion Testimony,” 85 NYSBA Journal (August 2013) 22, 25.

This commentator purposes that the Legislature enact a new CPLR article 45 provision which restates the second sentence of FRE 703. Alternatively, the Court of Appeals, when the issue is properly before it, should consider such adoption in the exercise of its common law power to adopt rules of evidence “fashioned to further, not frustrate, the truth-finding function of the courts.” Fleury v. Edwards, 14 N.Y.2d 334, 341 (1964) (Fuld, J., concurring).

Michael J. Hutter is a Professor of Law at Albany Law School and is Special Counsel to Powers & Santola. He is currently serving as the Reporter to the OCA Judicial Committee preparing the Guide to NY Evidence.