Expert Witnesses under Rules 703 and 803(4) of the Federal Rules of Evidence: Separating the Wheat from the Chaff

Indiana Law Journal

Volumn 72, Issue 4, 1997, Pages 937-1013

  Perrin, L Timothy ^a,b,c  

^a PEPPERDINE UNIVERSITY   (United States)

^b LUBBOCK CHRISTIAN UNIVERSITY   (United States)

^c TEXAS TECH UNIVERSITY   (United States)

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[No Author keywords available]

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EID: 1542533639     PISSN: 00196665     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Article

References (529)

1. FED. R. EVID. 702 advisory committee's note. The note provides, in pertinent part: "An intelligent evaluation of facts is often difficult or impossible without the application of some scientific, technical, or other specialized knowledge. The most common source of this knowledge is the expert witness . . . ." Id.
2. FED. R. EVID. 706 advisory committee's note. The note provides, in pertinent part: "The practice of shopping for experts, the venality of some experts, and the reluctance of many reputable experts to involve themselves in litigation, have been matters of deep concern." Id.
3. See FED. R. EVID. 704(a) advisory committee's note (indicating that expert opinion which "embraces an ultimate issue" is not objectionable, contrary to the former rule); FED. R. EVID. 705 (stating that an expert may give an opinion before disclosing the basis, subject to the court's discretion); Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579, 587-88 (1993) (holding that rule 702 did not adopt the common law "general acceptance test").
4. FED. R. EVID. 703; see also infra text accompanying note 26 (text of rule 703).
5. Zenith Radio Corp. v. Matsushita Elec. Indus. Co., 505 F. Supp. 1313, 1322 (E.D. Pa. 1980); 3 JACK B. WEINSTEIN & MARGARET A. BERGER, WEINSTEIN'S EVIDENCE ¶ 703[1], at 703-07 (Joseph M. McLaughlin ed., 1996).
6. See FED. R. EVID. 703.
7. Id. advisory committee's note.
8. United States v. Sims, 514 F.2d 147, 149 (9th Cir. 1975). Sims was decided on April 2, 1975, about three months before the effective date of the Federal Rules of Evidence. Nevertheless, the court cited rule 703 in its opinion and claimed its approach was "[f]ully consistent" with rule 703 and "follow[ed] the spirit of the Federal Rules of Evidence." Id.
9. FED. R. EVID. 803(4); see also infra text accompanying note 56 (text of rule 803(4)).
10. See FED. R. EVID. 803(4) advisory committee's note (stating that the rule modifies "[c]onventional doctrine" by admitting statements made to enable the expert to testify).
11. See FED. R. EVID. 803(4).
12. See id. advisory committee's note; Morgan v. Foretich, 846 F.2d 941, 950 (4th Cir. 1988) (noting that rule 803(4) eliminated the distinction between doctors consulted for treatment and those consulted only for diagnosis) (quoting United States v. Iron Shell, 633 F.2d 77, 83 (8th Cir. 1980)).
13. See FED. R. EVID. 803(4) advisory committee's note ("The distinction thus called for was one most unlikely to be made by juries.").
14. Cf. United States v. Joe, 8 F.3d 1488, 1494 & n.5 (10th Cir. 1993) (indicating that rule 803(4) requires only reasonable reliance by the physician for admission); Gong v. Hirsch, 913 F.2d 1269, 1274 n.4 (7th Cir. 1990) ("[A] fact reliable enough to serve as the basis for a diagnosis is also reliable enough to escape hearsay proscription.") (quoting 4 JACK B. WEINSTEIN & MARGARET A. BERGER, WEINSTEIN'S EVIDENCE ¶ 803(4)[01], at 803-146 (1988)).
15. Robert P. Mosteller, Child Sexual Abuse and Statements for the Purpose of Medical Diagnosis or Treatment, 67 N.C. L. REV. 257, 261-62 (1989).
16. See Edward B. Arnolds, Federal Rule of Evidence 703: The Back Door Is Wide Open, 20 FORUM 1, 18 (1984) ("[Rule 703] promotes judicial efficiency by doing away with the necessity of calling many foundation witnesses.").
17. See Michael D. Green, Expert Witnesses and Sufficiency of Evidence in Toxic Substances Litigation: The Legacy of Agent Orange and Bendectin Litigation, 86 Nw. U. L. REV. 643, 669 & n.123 (1992) (identifying liberalization of the Federal Rules of Evidence as one of the causes of the increase of expert testimony; stating that the numbers of experts regularly testifying in Cook County, Illinois, increased 1540% between 1974 and 1989); Faust F. Rossi, Modern Evidence and the Expert Witness, LITIG., Fall 1985, at 18, 18 (indicating that the increase in experts is at least partly the result of liberality of the Federal Rules of Evidence).
18. See Michael D. Green, Expert Witnesses and Sufficiency of Evidence in Toxic Substances Litigation: The Legacy of Agent Orange and Bendectin Litigation, 86 Nw. U. L. REV. 643, 669 & n.123 (1992) (identifying liberalization of the Federal Rules of Evidence as one of the causes of the increase of expert testimony; stating that the numbers of experts regularly testifying in Cook County, Illinois, increased 1540% between 1974 and 1989); Faust F. Rossi, Modern Evidence and the Expert Witness, LITIG., Fall 1985, at 18, 18 (indicating that the increase in experts is at least partly the result of liberality of the Federal Rules of Evidence).
19. See Ronald L. Carlson, Experts, Judges, and Commentators: The Underlying Debate About an Expert's Underlying Data, 47 MERCER L. REV. 481, 483 (1996) ("In an era of ambitious and compliant experts, protective rules are needed to curb real and potential abuses.").
20. See Arnolds, supra note 16, at 11-12.
21. Cf. Mosteller, supra note 15, at 257-58 (discussing the expansive use of rule 803(4)).
22. See infra notes 71-205 and accompanying text.
23. See infra notes 206-85 and accompanying text.
24. See infra notes 286-419 and accompanying text.
25. See infra notes 420-517 and accompanying text.
26. HENRY J. FRIENDLY, BENCHMARKS 202 (1967) (quoting Justice Felix Frankfurter's "threefold imperative" regarding statutory interpretation: "(1) Read the statute; (2) read the statute; (3) read the statute!"); see Bread Political Action Comm. v. Federal Election Comm'n, 455 U.S. 577, 580 (1982) ("Statutory construction 'must begin with the language of the statute itself.'") (quoting Dawson Chem. Co. v. Rohm & Haas Co., 448 U.S. 176, 187 (1980).
27. FED. R. EVID. 703.
28. Id.
29. Id.
30. See Edward J. Imwinkelried, Developing a Coherent Theory of the Structure of Federal Rule of Evidence 703, 47 MERCER L. REV. 447, 454-57 (1996).
31. See id. at 451-52 (describing the two views of rule 703's scope: one that applies the rule to research data used by the expert with regard to the general theory used by the expert and the other that limits the rule to only case-specific facts or data).
32. See FED. R. EVID. 703 advisory committee's note.
33. See United States v. Affleck, 776 F.2d 1451, 1457 (10th Cir. 1985) (indicating that reasonable reliance is one of rule 703 's safeguards).
34. FED. R. EVID. 703 advisory committee's note.
35. See id.
36. See Michael H. Graham, Expert Witness Testimony and the Federal Rules of Evidence: Insuring Adequate Assurance of Trustworthiness, 1986 U. ILL. L. REV. 43, 75 (concluding that example of "accidentologist" indicates that rule 703's reasonableness requirement includes both customary reliance and a showing of more trustworthiness than ordinary hearsay statements possess).
37. FED. R. EVID. 703 advisory committee's note.
38. See FED. R. EVID. 703; Gong v. Hirsch, 913 F.2d 1269, 1273 (7th Cir. 1990).
39. See FED. R. EVID. 703 advisory committee's note.
40. FED. R. EVID. 705. Rule 705 provides: "The expert may testify in terms of opinion or inference and give reasons therefor without first testifying to the underlying facts or data, unless the court requires otherwise. The expert may in any event be required to disclose the underlying facts or data on cross examination." Id.
41. FED. R. EVID. 705.
42. Id.
43. See STEVEN GOODE & OLIN GUY WELLBORN III, COURTROOM EVIDENCE HANDBOOK 186 (Student ed. 1995) ("Although not explicitly mentioned in rule 705, it is clear that an expert may ordinarily disclose the facts and data that underlie his opinion.").
44. FED. R. EVID. 705 advisory committee's note (emphasis added).
45. See, e.g., Christophersen v. Allied-Signal Corp., 939 F.2d 1106, 1112 (5th Cir. 1991) ("Rule 403 serves a general screening function for otherwise admissible evidence."); Nachtsheim v. Beech Aircraft Corp., 847 F.2d 1261, 1270-71 (7th Cir. 1988) (stating that the underlying information on which experts rely is subject to exclusion under the rule 403 balancing test). Rule 403 provides: "Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence." FED. R. EVID. 403.
46. See, e.g., Engebretsen v. Fairchild Aircraft Corp., 21 F.3d 721, 729 (6th Cir. 1994) (indicating that an adverse party is entitled to a limiting instruction explaining to the jury that the inadmissible evidence relied upon by an expert under rule 703 cannot be considered for its truth); Paddack v. Dave Christensen, Inc., 745 F.2d 1254, 1261-62 (9th Cir. 1984) ("Upon admission of such evidence [under rule 703], it . . . becomes necessary for the court to instruct the jury that the hearsay evidence is to be considered solely as a basis for the expert opinion and not as substantive evidence.").
47. See infra note 265 and accompanying text (illustrating limiting instructions under rule 703).
48. See, e.g., Francis v. Franklin, 471 U.S. 307, 324 n.9 (1985) ("The Court presumes that jurors . . . attend closely [to] the particular language of the trial court's instructions and strive to understand, make sense of, and follow the instructions given them."); United States v. Affleck, 776 F.2d 1451, 1458 (10th Cir. 1985) (stating that the court cannot assume that the jury will disregard instructions given to them under rule 703). See generally Richardson v. Marsh, 481 U.S. 200, 206 (1987) (stating that there is an "almost invariable assumption" that the jury will follow limiting instructions). Chief Justice Traynor wrote: "[W]e must assume that juries for the most part understand and faithfully follow instructions." ROGER J. TRAYNOR, THE RIDDLE OF HARMLESS ERROR 73-74 (1970).
49. FED. R. EVID. 803(4) advisory committee's note (emphasis added).
50. Id.
51. FED. R. EVID. 703.
52. See Graham, supra note 35, at 75 (noting that reliance is reasonable under rule 703 only if it is customary and the facts are more trustworthy than ordinary statements).
53. See id.
54. FED. R. EVID. 803(4) advisory committee's note.
55. See infra notes 255-69 and accompanying text.
56. JOHN W. STRONG ET AL., EVIDENCE CASES AND MATERIALS 796 (1995). The authors query whether the rationale for extending rule 803(4) means that "statements received under rule 703 to support the basis of the expert's opinion are also substantively admissible? If not, what is the justification for the difference in treatment?" Id. One commentator has proposed a new hearsay exception for the expert's otherwise inadmissible basis. See Paul R. Rice, The Allure of the Illogic: A Coherent Solution for Rule 703 Requires More Than Redefining "Facts or Data ", 47 MERCER L. REV. 495, 505-06 (1996).
57. JOHN W. STRONG ET AL., EVIDENCE CASES AND MATERIALS 796 (1995). The authors query whether the rationale for extending rule 803(4) means that "statements received under rule 703 to support the basis of the expert's opinion are also substantively admissible? If not, what is the justification for the difference in treatment?" Id. One commentator has proposed a new hearsay exception for the expert's otherwise inadmissible basis. See Paul R. Rice, The Allure of the Illogic: A Coherent Solution for Rule 703 Requires More Than Redefining "Facts or Data ", 47 MERCER L. REV. 495, 505-06 (1996).
58. FED. R. EVID. 803(4).
59. See id. The statement must have been made for the purpose of either medical diagnosis or treatment to satisfy the rule. See id.
60. See id. The statement must relate to any of the following three areas: (1) medical history; (2) past or present symptoms; or (3) the cause or external source of the patient's problem. See id. The drafters' inclusion of statements concerning past symptoms and causation constitutes an expansion of the traditional reach of the exception based on the belief that the patient's motivation to be truthful extended just as much to these matters as to present symptoms. See id. advisory committee's note.
61. FED. R. EVID. 803(4). The statement must not only be made for the proper purpose and be limited to the appropriate subject matter, but also it must be "reasonably pertinent to diagnosis or treatment." Id. That is, the statement must be useful to the doctor in his work.
62. Id. advisory committee's note.
63. FED. R. EVID. 803(4); see id. advisory committee's note; ERIC D. GREEN & CHARLES R. NESSON, PROBLEMS, CASES, AND MATERIALS ON EVIDENCE 484-85 (2d ed. 1994) ("The extension of rule 803(4) to cover statements made to nontreating physicians purely for the purpose of diagnosis in preparation for testifying at trial is one of the most radical extensions of the Federal Rules.").
64. See FED. R. EVID. 803(4) advisory committee's note; Mosteller, supra note 15, at 262 ("[T]he Advisory Committee Note provides no affirmative explanation for why . . . statements to medical experts should be substantively received."). Professor Mosteller identified four "plausible reasons why statements offered to medical experts would be received for their truth." See id. at 263. The reasons are: (1) "[P]rocedural rules governing the discovery of opinions by such experts give a special guarantee of their reliability since such statements will be more thoroughly tested by the adversary process than others"; (2) medical experts are particularly well trained and skilled professionals; (3) plenty of medical experts are available to each side to test any medical opinion and any underlying statements; (4) medical science is a "hard" science, thus more precise than many fields certified as appropriate for admission under rule 702. See id. Unfortunately, none of these justifications provides a consistently valid basis upon which to distinguish medical experts from all other experts.
65. FED. R. EVID. 803(4); see id. advisory committee's note.
66. FED. R. EVID. 703.
67. See FED. R. EVID. 803(4).
68. Id. advisory committee's note.
69. Id.
70. See id. ("Statements as to fault would not ordinarily qualify [as reasonably pertinent].").
71. United States v. Iron Shell, 633 F.2d 77, 84 (8th Cir. 1980).
72. See, e.g., In re Paoli R.R. Yard PCB Litig., 35 F.3d 717, 762 (3d Cir. 1994) (addressing hearsay statements under rules 703 and 803(4)); Gong v. Hirsch, 913 F.2d 1269, 1271-74 (7th Cir. 1990); In re "Agent Orange" Prod. Liab. Litig., 611 F. Supp. 1223, 1246-47 (E.D.N.Y. 1985), aff'd, 818 F.2d 187 (2d Cir. 1987).
73. 514 F.2d 147 (9th Cir. 1975).
74. Id. at 149. Sims was decided on April 2, 1975, and the Federal Rules of Evidence became effective on July 1, 1975. See id.
75. Id. at 147-48.
76. Id. at 148. The defendant claimed to believe that those who interfered with his efforts "brought down the wrath of God in the form of California earthquakes." Id. Thus, his claimed delusion was that the California earthquakes were God's retribution against the IRS investigators who had interfered with his divinely guided course of conduct. See id.
77. Id. The testimony of defendant's two experts was "inconclusive on the ultimate issue of legal insanity." Id.
78. Id.
79. Id.
80. See id. Although it is unclear from the Ninth Circuit's opinion, the defendant apparently claimed that his aberrational behavior all started after 1971. Yet, the government's psychiatrist revealed at trial that IRS agents told him the defendant had been investigated for "'alleged irregularities' prior to 1971." Id. Presumably, the defendant claimed that his fraudulent conduct was not ongoing but was limited to that period of delusion caused by his "religious fanaticism." Significantly, the information was revealed on cross-examination in response to the following question: "Is it a fact . . . that at least from the facts we know, that Mr. Sims had been practicing as a tax preparer, according to information you have, for at least ten years before he had any difficulty with the law?" Id.
81. Id.
82. See id. at 149. The court concluded that its approach to rule 703 "respects the functions and abilities of both the expert witness and the trier of fact." Id.
83. Id. According to the court, the expert's experience enables him "to use only those sources and kinds of information which are of a type reasonably relied upon by similar experts in arriving at sound opinions on the subject." Id.
84. Id. ("[W]e should . . . leave to the expert the assessment of the reliability of the statements on which he bases his expert opinion.").
85. See id. Remarkably enough, the court relied on its own sense of logic instead of evidence adduced at the trial below as the basis for its finding of reasonable reliance. See id.
86. Arnolds, supra note 16, at 6-9. When Arnolds wrote his article in 1984 he identified the liberal approach as the majority approach among federal circuits. See id. at 8.
87. See FED. R. EVID. 803(8)(B). The public records exception explicitly forecloses the admission of "matters observed" by law enforcement personnel in a criminal case because of the adversarial relationship between the police and suspects and confrontation concerns. See id. advisory committee's note.
88. See, e.g., International Adhesive Coating Co. v. Bolton Emerson Int'l, Inc., 851 F.2d 540, 544-45 (1st Cir. 1988) (finding that "reasonableness" under rule 703 is measured against the normal practice of experts in the field).
89. See, e.g., Lewis v. Rego, Co., 757 F.2d 66, 73-74 (3d Cir. 1985) (ruling that an expert's conversations with a nontestifying expert should have been admitted at trial because it was the "material on which experts in the field base their opinions" with no independent analysis of the trustworthiness of the statements); In re Japanese Elec. Prod. Antitrust Litig., 723 F.2d 238, 277 (3d Cir. 1983) ("[T]he proper inquiry is not what the court deems reliable, but what experts in the relevant discipline deem it to be."), rev'd on other grounds sub nom. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574 (1986); Stevens v. Cessna Aircraft Co., 634 F. Supp. 137, 142-43 (E.D. Pa. 1986) (admitting hearsay statements to defendant's expert in aeronautical medicine because "such statements were routinely relied upon by experts") (emphasis added).
90. See, e.g., Peteet v. Dow Chem. Co., 868 F.2d 1428, 1432 (5th Cir. 1989) (stating that under rule 703 "the trial court should defer to the expert's opinion of what data they find reasonably reliable"); Greenwood Utils. Comm'n v. Mississippi Power Co., 751 F.2d 1484, 1495 (5th Cir. 1985) (stating that deference should be given to the expert's view of what is reasonably relied upon in the field).
91. See, e.g., Mannino v. International Mfg. Co., 650 F.2d 846, 851-53 (6th Cir. 1981) (reversing the trial court's refusal to allow the plaintiffs expert to rely on hearsay material, the court stated: "great liberality is allowed the expert in determining the basis of his opinions under rule 703").
92. See, e.g., United States v. Lundy, 809 F.2d 392, 395-96 (7th Cir. 1987) (upholding expert's reliance on statements of witnesses to a fire in forming an opinion on the cause and origin of the fire because such hearsay statements are "normally relied upon by an expert in the field").
93. See, e.g., United States v. Farley, 992 F.2d 1122, 1125 (10th Cir. 1993) (holding that expert psychologist properly repeated statements of child victim of abuse during his testimony because "[r]ule 703 would allow the expert to testify regarding the information, even if the evidence would not otherwise be admissible"); United States v. Affleck, 776 F.2d 1451, 1456-58 (10th Cir. 1985) (holding statements by the defendant's employees were the type typically relied on by a professional accountant, and thus, were properly admitted under rule 703).
94. 809 F.2d 392 (7th Cir. 1987).
95. Id. at 395 (emphasis added).
96. Id. at 395-96.
97. 851 F.2d 540 (1st Cir. 1988).
98. Id. at 544-45; see also Affleck, 776 F.2d at 1456-58 (admitting use of hearsay statements under rule 703 because they were the type "typically relied on"); Stevens v. Cessna Aircraft Co., 634 F. Supp. 137, 142-43 (E.D. Pa. 1986) (allowing expert's use of hearsay based on finding that such statements "were routinely relied upon by experts").
99. 723 F.2d 238 (3d Cir. 1983), rev'd on other grounds sub nom. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574 (1986).
100. Id. at 276.
101. 650 F.2d 846 (6th Cir. 1981).
102. Id. at 853.
103. See Japanese Elec. Prods. Antitrust Litig., 723 F.2d at 277; Mannino, 650 F.2d at 853.
104. See Japanese Elec. Prods. Antitrust Litig., 723 F.2d at 277; Mannino, 650 F.2d at 853.
105. 992 F.2d 1122 (10th Cir. 1993).
106. See id. at 1125.
107. Id.
108. See supra notes 34-35, 49-52 and accompanying text.
109. See FED. R. EVID. 703 & advisory committee's note.
110. See FED. R. EVID. 403.
111. 739 F.2d 1028 (5th Cir. 1984).
112. Id. at 1029. Barrel of Fun was initiated when State Farm refused to pay a claim under a fire insurance policy for a music store owned by plaintiff based upon alleged arson. See id. The owner of the store took a psychological stress evaluation administered by the Louisiana state fire marshal's office and allegedly failed the test. The trial court admitted testimony about the PSE from witnesses called by State Farm. See id. at 1030.
113. See id. at 1033.
114. Id. at 1030.
115. See id. at 1033 (quoting A.B.A. Sec. Litig. 208, Emerging Problems Under the Federal Rules of Evidence (1st ed. 1983)).
116. 751 F.2d 1484 (5th Cir. 1985).
117. See id. at 1495.
118. See id.
119. 826 F.2d 420 (5th Cir. 1987).
120. Id. at 424 ("Without more than credentials and a subjective opinion, an expert's testimony that 'it is so' is not admissible."); see id. at 422 ("Rule 703 . . . requires courts to examine the reliability of [the expert's] sources.").
121. See id. at 423-24.
122. See id.
123. 868 F.2d 1428 (5th Cir. 1989).
124. Id. at 1432.
125. See id.
126. See id. at 1434.
127. 939 F.2d 1106 (5th Cir. 1991).
128. See id. at 1109.
129. See id. at 1114-16.
130. See id. at 1114.
131. See Viterbo, 826 F.2d at 422-24.
132. See Christophersen, 939 F.2d at 1111; Barrel of Fun, 739 F.2d at 1033-34.
133. See Christophersen, 939 F.2d at 1111; Barrel of Fun, 739 F.2d at 1033-34.
134. See Imwinkelried, supra note 29, at 454-57.
135. 611 F. Supp. 1223 (E.D.N.Y. 1985), aff'd, 818 F.2d 187 (2d Cir. 1987).
136. Id at 1243.
137. Id. at 1246.
138. Id at 1245.
139. Greenwood Utils. v. Mississippi Power Co., 751 F.2d 1484, 1495 (5th Cir. 1985).
140. In re "Agent Orange", 611 F. Supp. at 1246.
141. In re "Agent Orange" Prod. Liab. Litig., 818 F.2d 187 (2d Cir. 1987).
142. In re "Agent Orange", 611 F. Supp. at 1256.
143. See, e.g., In re James Wilson Assocs., 965 F.2d 160, 173 (7th Cir. 1992) (Under rule 703, "the judge must make sure that the expert isn't being used as a vehicle for circumventing the rules of evidence."); Gong v. Hirsch, 913 F.2d 1269, 1272-73 (7th Cir. 1990) (Rule 703 was held to deny admissibility to a non-treating physician's letter describing plaintiffs physical condition because it was merely a conclusory statement and not the type of information reasonably relied upon by experts.).
144. University of R.I. v. A.W. Chesterton Co., 2 F.3d 1200, 1218 (1st Cir. 1993) ("Rule 703 requires the trial court to give 'careful consideration' to any inadmissible facts upon which the expert will rely, in order to determine whether reliance is 'reasonable.'"); International Adhesive Coating Co. v. Bolton Emerson Int'l, 851 F.2d 540, 545 (1st Cir. 1988) (Under rule 703, "[t]his reasonableness determination is 'a matter requiring the District Court's careful consideration.'").
145. See, e.g., Gong, 913 F.2d at 1272-73 (Under rule 703 a court must inquire into the trustworthiness of the expert's basis.).
146. See In re Paoli R.R. Yard PCB Litig., 35 F.3d 717, 748 (3d Cir. 1994) (quoting In re "Agent Orange", 611 F. Supp. at 1245).
147. See Viterbo v. Dow Chem. Co., 826 F.2d 420, 422 (5th Cir. 1987).
148. See id.
149. See, e.g., Engebretsen v. Fairchild Aircraft Corp., 21 F.3d 721, 729 (6th Cir. 1994) (Materials relied on by an expert "should not be admitted if the risk of prejudice substantially outweighs their probative value."); Nachtsheim v. Beech Aircraft Corp., 847 F.2d 1261, 1270-71 (7th Cir. 1988) (Expert may not reveal to jury inadmissible factual basis of his opinion when the court determines that the risk of prejudice substantially outweighs the probative value.).
150. See Nachtsheim, 847 F.2d at 1270-71.
151. See id.
152. See Engrebretsen, 21 F.3d at 729; United States v. Farley, 992 F.2d 1122, 1125 (10th Cir. 1993); Boone v. Moore, 980 F.2d 539, 542 (8th Cir. 1992); Paddack v. Dave Christensen, Inc., 745 F.2d 1254, 1262 (9th Cir. 1984).
153. See supra note 45 and accompanying text.
154. 509 U.S. 579 (1993).
155. See id. at 587-98.
156. See id. at 589 n.7.
157. See Joiner v. General Elec. Co., 78 F.3d 524, 537 (11th Cir. 1996) (Smith, J., dissenting) (Under Daubert the "trial court must separate the wheat from the chaff."); Estate of Sinthasomphone v. City of Milwaukee, 878 F. Supp. 147, 152 (E.D. Wis. 1995) ("The Supreme Court has expressed its faith in the ability of district judges to separate the wheat from the chaff.").
158. 35 F.3d 717 (3d Cir. 1994).
159. See supra notes 97-98 and accompanying text (discussing In re Japanese Elec. Prod. Antitrust Litig. 723 F.2d 238 (3d Cir. 1983), rev'd on other grounds sub nom. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574 (1986)).
160. In re Paoli, 35 F.3d at 748.
161. See Isely v. Capuchin Province, 877 F. Supp. 1055, 1066 (E.D. Mich. 1995) ("[U]nder Daubert, the Court perceives its role . . . as being a 'screener' of expert testimony, similar to its role under [rule 104(b)]."); cf. Daubert, 509 U.S. at 592 (noting judge's responsibility under rule 104(a)).
162. See 3 WEINSTEIN & BERGER, supra note 5, ¶ 703[3], at 703-32 to 703-38.
163. See Soden v. Freightliner Corp., 714 F.2d 498, 502-03 (5th Cir. 1983) (noting that under rule 703 courts must analyze expert's underlying facts or data on a case-by-case basis).
164. See supra notes 145-49 and accompanying text (identifying examples of courts that apply rule 403 to expert's basis).
165. See Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579, 595 (1993).
166. Holbrook v. Lykes Bros. S.S. Co., 80 F.3d 777, 786 (3d Cir. 1996) (The trial court should articulate its balancing analysis under rule 403, but the fact that it failed to do so is not per se reversible error.).
167. See Emigh v. Consolidated Rail Corp., 710 F. Supp. 608, 612 (W.D. Pa. 1989) ("[W]hen the underlying source is so unreliable as to render it more prejudicial than probative" it is "inadmissible under rule 403."). The correct standard, of course, is whether probative value is substantially outweighed by dangers of unfair prejudice or confusion of the jury. See FED. R. EVID. 403.
168. CHRISTOPHER B. MUELLER & LAIRD C. KIRKPATRICK, EVIDENCE 193 (1995) ("By authorizing admission only where the probative value is 'substantially outweighed' by the listed competing considerations, the Rule is designed to favor admissibility.").
169. See EDWARD J. IMWINKELRIED & TIM HALLAHAN, IMWINKELRIED AND HALLAHAN'S CALIFORNIA EVIDENCE CODE ANNOTATED 31 (2d ed. 1995) ("[J]udges consider [rule 403] the 'garbage can' of the Evidence Code.").
170. See Holbrook, 80 F.3d at 786.
171. Newell P.R., Ltd. v. Rubbermaid Inc., 20 F.3d 15, 21 (1st Cir. 1994) (quoting Pinkham v. Burgess, 933 F.2d 1066, 1071 (1st Cir. 1991) (omission in original)).
172. 633 F.2d 77 (8th Cir. 1980).
173. Id. at 81-82.
174. See id. at 82.
175. Id. at 82, 85.
176. Id. at 84.
177. See id
178. See FED. R. EVID. 803(4).
179. See id. advisory committee's note (stating that the admission of statements made for medical diagnosis "is consistent with the provision of rule 703 that the facts on which expert testimony is based need not be admissible in evidence if of a kind ordinarily relied upon by experts in the field").
180. See supra note 14 and accompanying text.
181. 935 F. Supp. 965 (N.D. Ill. 1996).
182. See id. at 966-68.
183. See id. at 967.
184. See id. at 967-68. The second examination of the defendant took place less than a week before trial was scheduled to commence, and the expert's report about the second examination was dated the same day as the first day of trial. For unrelated reasons, the trial was continued for several months. See id. at 967.
185. Id. at 967.
186. Id. at 972.
187. See id. at 973-74.
188. Id. at 973 (citing Gong v. Hirsch, 913 F.2d 1269, 1274 n.4 (7th Cir. 1990)).
189. See id.
190. Id.
191. See id. at 973-74.
192. Id. at 967-68. The litigation context poses such a significant motivation to fabricate that three exceptions to the hearsay rule exclude statements made under those circumstances. See FED. R. EVID. 803(6) (excluding business records if they lack trustworthiness) & advisory committee's note (alluding to concerns about the motivation of a declarant who is preparing to litigate, instead of preparing to do business); FED. R. EVID. 803(8) (excluding public records that lack trustworthiness) & advisory committee's note (identifying the motivation of the declarant as an important factor in deciding trustworthiness); FED. R. EVID. 804(b)(3) (requiring sufficient corroborative evidence to clearly indicate the trustworthiness of exculpatory statements made against the declarant's interest). Courts have not only failed to evaluate the trustworthiness of pre-trial statements, but also statements made after conviction. In United States v. Brown, 891 F. Supp. 1501 (D. Kan. 1995), the court granted the defendant's motion for a new trial based "on newly discovered" evidence that the defendant suffered from battered women's syndrome. See id. at 1510. The "evidence" was discovered after her conviction. See id. at 1503. Yet, the court did not make any reference to concerns about the reliability of the defendant's post-conviction statements. See id. at 1507-08.
193. 913 F.2d 1269 (7th Cir. 1990).
194. See id. at 1272-73.
195. See id. at 1274.
196. See Paul R. Rice, Inadmissible Evidence as a Basis for Expert Opinion Testimony: A Response to Professor Carlson, 40 VAND. L. REV. 583, 588 (1987); cf. FED. R. EVID. 803(1) (admitting present sense impressions because of contemporaneousness); FED. R. EVID. 803(2) (admitting excited utterances because of their spontaneity and circumstances); FED. R. EVID. 803(3) (admitting statements because of their contemporaneousness); FED. R. EVID. 803(6) (admitting business records because of their routine preparation and the use of the records in the conduct of the business).
197. See United States v. Longie, 984 F.2d 955, 959 (8th Cir. 1993); United States v. Renville, 779 F.2d 430, 436 (8th Cir. 1985).
198. 779 F.2d 430 (8th Cir. 1985).
199. See id. at 436.
200. See id. at 437-38.
201. See, e.g., United States v. Pollard, 790 F.2d 1309, 1312-13 & n.1 (7th Cir. 1986) (excluding statement of patient blaming arresting officer for twisting arm). The advisory committee's note following rule 803(4) provides the following example: "a patient's statement that he was struck by an automobile would qualify but not his statement that the car was driven through a red light." FED. R. EVID. 803(4) advisory committee's note. Prior to the adoption of rule 803(4) many jurisdictions excluded all statements about the cause of the injury, not just statements of fault, under this exception. See, e.g., Aetna Life Ins. Co. v. Quinley, 87 F.2d 732, 734 (8th Cir. 1937) (excluding statements of cause of injury).
202. See FED. R. EVID. 803(4) advisory committee's note.
203. See, e.g., United States v. Tome, 61 F.3d 1446, 1451 (10th Cir. 1995); United States v. Yazzie, 59 F.3d 807, 812-13 (9th Cir. 1995); United States v. Longie, 984 F.2d 955, 959 (8th Cir. 1993); United States v. Balfany, 965 F.2d 575, 579 (8th Cir. 1992); United States v. George, 960 F.2d 97, 99 (9th Cir. 1992).
204. 8 F.3d 1488 (10th Cir. 1993).
205. See id. at 1494-95.
206. Id. at 1494.
207. See id. at 1494-95.
208. See, e.g., United States v. Yellow, 18 F.3d 1438, 1442 (8th Cir. 1994) (admitting statements to a psychologist); United States v. Newman, 965 F.2d 206, 210 (7th Cir. 1992) (admitting statements to a psychologist: "[t]he rationale [of rule 803(4)] applies as forcefully to a clinical psychologist as to a physician, and warrants us in reading 'medical' broadly"); Morgan v. Foretich, 846 F.2d 941, 949 n.17 (4th Cir. 1988) ("[S]tatements to psychiatrists or psychologists are admissible under 803(4) the same as statements to physicians."); United States v. DeNoyer, 811 F.2d 436, 438 (8th Cir. 1987) (admitting statements made to social worker under rule 803(4)).
209. See, e.g., Morgan, 846 F.2d at 949 n.17.
210. See Edward J. Imwinkelried, A Comparativist Critique of the Interface Between Hearsay and Expert Opinion in American Evidence Law, 33 B.C. L. REV. 1, 4, 5 (1991) (noting the struggle of American courts trying to answer questions of expert testimony and hearsay).
211. See FED. R. EVID. 803(4) advisory committee's note (noting that expansion of common law hearsay exception was because of jury's inability to distinguish between hearsay evidence offered for its truth and hearsay evidence offered as the expert's basis).
212. See supra notes 45-47 and accompanying text (discussing role of limiting instruction under rule 703).
213. See, e.g., United States v. Sims, 514 F.2d 147, 149 (9th Cir. 1975) (relying on experts' ability to separate the wheat from the chaff under rule 703); United States v. Madoch, 935 F. Supp. 965, 972-73 (N.D. Ill. 1996) (relying on expert under rule 803(4)).
214. Cf. FED. R. EVID. 705 advisory committee's note.
215. Cf. Samuel R. Gross, Expert Evidence, 1991 WIS. L. REV. 1113, 1114.
216. See id. at 1130. In two separate surveys of lawyers, almost half of the participants admitted to shopping for experts. See Anthony Champagne et al., Expert Witnesses in the Courts: An Empirical Examination, 76 JUDICATURE 5, 7 (1992) (Forty-nine percent of lawyers responding interviewed several experts before selecting one.); Daniel W. Shuman et al., An Empirical Evaluation of the Use of Expert Witnesses in the Courts - Part II: A Three City Study, 34 JURIMETRICS J. 193, 202 (1994) (Forty-three percent of lawyers responding acknowledged that they shopped for experts.).
217. See id. at 1130. In two separate surveys of lawyers, almost half of the participants admitted to shopping for experts. See Anthony Champagne et al., Expert Witnesses in the Courts: An Empirical Examination, 76 JUDICATURE 5, 7 (1992) (Forty-nine percent of lawyers responding interviewed several experts before selecting one.); Daniel W. Shuman et al., An Empirical Evaluation of the Use of Expert Witnesses in the Courts - Part II: A Three City Study, 34 JURIMETRICS J. 193, 202 (1994) (Forty-three percent of lawyers responding acknowledged that they shopped for experts.).
218. See Champagne et al., supra note 212, at 7-8 (noting that 86% of lawyers responding to survey identified the adamancy of the expert's support for the party's position as important or very important in selecting an expert versus only 7% who considered the impartiality of the expert when employing experts).
219. See L. Timothy Perrin, Expert Witness Testimony: Back to the Future, 29 U. RICH. L. REV. 1389, 1411-12 (1995) (noting the broad array of expert referral services available); see also Trower v. Jones, 520 N.E.2d 297, 299 (Ill. 1988) (stating that there has been a "proliferation of expert 'locator' services").
220. See Gross, supra note 211, at 1129.
221. See Richard A. Epstein, Judicial Control over Expert Testimony: Of Deference and Education, 87 NW. U. L. REV. 1156, 1162-63 (1993) ("[T]he close working relationship between experts and their clients threatens objectivity and neutrality, resulting in serious damage to the trial system.").
222. See Champagne et al., supra note 212, at 7; cf. Gross, supra note 211, at 1146.
223. See Gross, supra note 211, at 1132.
224. See id. at 1138.
225. JACK V. MATSON, EFFECTIVE EXPERT WITNESSING 125 (1990).
226. See 4 WEINSTEIN & BERGER, supra note 5, ¶ 803(4)[1], at 803-154.
227. See FED. R. EVID. 703 advisory committee's note.
228. See FED. R. EVID. 803(4) advisory committee's note. In United States v. Joe, the United States Court of Appeals for the Tenth Circuit concluded that the only requirement under rule 803(4) is that the statement was "reasonably relied on by the physician in treatment or diagnosis" under the "plain language" of the rule. See United States v. Joe, 8 F.3d 1488, 1494 (10th Cir. 1993).
229. See 4 WEINSTEIN & BERGER, supra note 5, ¥ 803(4)[1], at 803-154.
230. The difference in the two worlds may be demonstrated most clearly by comparing the use of hearsay by a practicing doctor or paramedic in the field as envisioned by the advisory committee to the use of the same evidence at trial. Professor McElhaney described the drafters' scenario as follows: There is a paramedic kneeling over an unconscious man in the middle of the street, trying to decide whether to treat for heart attack or diabetic shock. A bystander tells the paramedic that the man's son said he clutched at his chest as he passed out. The paramedic is not going to rule on a hearsay objection before he decides what to do. Of course not. It is an emergency, and he takes the best information he can get. But a trial is a deliberative process that takes time and contemplation. It is not a street corner emergency. James W. McElhaney, Trial Notebook: Fixing the Expert Mess, 20 LITIG., Fall 1993, at 53, 55.
231. See Gross, supra note 211, at 1138-41 (1991). Professor Gross notes that not only do expert witnesses "generally come on the scene after the events have occurred and the issues have been drawn," but also has the unique power "to create new evidence in the form of expert opinions." Id. at 1140. In forming opinions the "expert can decide where to look and by what means, what research to conduct, which people to consult, which studies to consider, which methodology to use, and so forth." Id. The problem is not simply the expert's lack of firsthand knowledge, of course, but instead is the fact that much of the expert's underlying information "will come from the attorney who hired [the expert] - hardly an unbiased source." Id. at 1141.
232. See supra note 226 and accompanying text.
233. See Gross, supra note 211, at 1140-41.
234. See, e.g., Daubert v. Merrell Dow Pharms., Inc., 43 F.3d 1311, 1317-18 (9th Cir. 1995) (identifying importance of the experts' development of theories about the causal nexus between the drug, Bendectin, and limb reduction defects in the context of the litigation in determining their lack of reliability).
235. See, e.g., United States v. Tran Trong Cuong, 18 F.3d 1132, 1143-44 (4th Cir. 1994) ("Reports specifically prepared for purposes of litigation are not, by definition, 'of a type reasonably relied upon by experts in the particular field.'"); In re "Agent Orange" Prod. Liab. Litig., 611 F. Supp. 1223, 1247 (E.D.N.Y. 1985) (noting importance of experts' motivation in assessing reliability of medical checklists obtained from plaintiffs in preparation for experts' testimony), aff'd, 818 F.2d 187 (2d Cir. 1987).
236. See. e.g., United States v. Joe, 8 F.3d 1488, 1494-95 (10th Cir. 1993); United States v. Sims, 514 F.2d 147, 149-50 (5th Cir. 1975) (failing to address under rule 703 expert's motivation to assist government when assessing expert's basis); United States v. Madoch, 935 F. Supp. 965, 972-73 (N.D. Ill. 1996) (failing to address bias under rule 803(4)).
237. 514 F.2d 147 (9th Cir. 1975); see supra notes 71-83 and accompanying text.
238. 935 F. Supp. 965 (N.D. Ill. 1996); see supra notes 177-88 and accompanying text.
239. See Sims, 514 F.2d at 149.
240. See Madoch, 935 F. Supp. at 973.
241. See Sims, 514 F.2d at 149; Madoch, 935 F. Supp. at 973.
242. See Sims, 514 F.2d at 149; Madoch, 935 F. Supp. at 973.
243. For an example of a court which recognized this distinction, see United States v. Skodnek, 896 F. Supp. 60, 65 (D. Mass. 1995). In Skodnek the court ruled that the defendant's expert, a psychiatrist, could not disclose statements made by the defendant to the expert about the offenses and other matters. See id. The statements were made to the psychiatrist after the charges were filed. See id.
244. Cf. FED. R. EVID. 703 advisory committee's note (Rule 703 "would not warrant admitting in evidence the opinion of an 'accidentologist' as to the point of impact in an automobile collision based on statements by bystanders.").
245. See supra notes 5-6 and accompanying text.
246. See FED. R. EVID. 705.
247. Smith v. Ford Motor Co., 626 F.2d 784, 793 (10th Cir. 1980) (quoting Michael H. Graham, Discovery of Experts Under Rule 26(b)(4) of the Federal Rules of Civil Procedure: Part One, An Analytical Study, 1976 U. ILL. L. REV. 895, 897); see also University of R.I. v. A. W. Chesterton Co., 2 F.3d 1200, 1218 (1st Cir. 1993) ("In the interests of efficiency, the Federal Rules of Evidence deliberately shift the burden to the cross-examiner to ferret out whatever empirical deficiencies may lurk in the expert opinion."); Bryan v. John Bean Div. of FMC Corp., 566 F.2d 541, 545 (5th Cir. 1978) ("[T]he onus of eliciting the bases of the opinion is placed on the cross-examiner [by rule 705]."); Polk v. Ford Motor Co., 529 F.2d 259, 271 (8th Cir. 1976) (Under rule 705, "the weakness in the underpinnings of such [expert] opinions may be developed upon cross-examination and such weakness goes to the weight and credibility of the testimony."); Michael H. Graham, Expert Witness Testimony and the Federal Rules of Evidence: Insuring Adequate Assurance of Trustworthiness, 1986 U. ILL. L. REV. 43, 69.
248. Smith v. Ford Motor Co., 626 F.2d 784, 793 (10th Cir. 1980) (quoting Michael H. Graham, Discovery of Experts Under Rule 26(b)(4) of the Federal Rules of Civil Procedure: Part One, An Analytical Study, 1976 U. ILL. L. REV. 895, 897); see also University of R.I. v. A. W. Chesterton Co., 2 F.3d 1200, 1218 (1st Cir. 1993) ("In the interests of efficiency, the Federal Rules of Evidence deliberately shift the burden to the cross-examiner to ferret out whatever empirical deficiencies may lurk in the expert opinion."); Bryan v. John Bean Div. of FMC Corp., 566 F.2d 541, 545 (5th Cir. 1978) ("[T]he onus of eliciting the bases of the opinion is placed on the cross-examiner [by rule 705]."); Polk v. Ford Motor Co., 529 F.2d 259, 271 (8th Cir. 1976) (Under rule 705, "the weakness in the underpinnings of such [expert] opinions may be developed upon cross-examination and such weakness goes to the weight and credibility of the testimony."); Michael H. Graham, Expert Witness Testimony and the Federal Rules of Evidence: Insuring Adequate Assurance of Trustworthiness, 1986 U. ILL. L. REV. 43, 69.
249. See United States v. Reyes, 18 F.3d 65, 69 (2d Cir. 1994) ("The principal vice of hearsay evidence is that it offers the opponent no opportunity to cross examine the declarant on the statement that establishes the declared fact."); Frazier v. Continental Oil Co., 568 F.2d 378, 382 (5th Cir. 1978) ("The primary reason for excluding hearsay evidence is the lack of opportunity to test the truth of such evidence through cross-examination.") (citing CHARLES T. MCCORMICK, MCCORMICK ON EVIDENCE § 245, at 583 (2d ed. 1972)).
250. See infra notes 256-79 and accompanying text.
251. PETER L. MURRAY, BASIC TRIAL ADVOCACY 346 (1995) ("Experts are frequently cross-examined with reference to the factual basis on which their opinions are based.").
252. JAMES W. MCELHANEY, MCELHANEY'S TRIAL NOTEBOOK 511 (3d ed. 1994) (Cross-examiner should emphasize "that the expert has no firsthand knowledge . . . ."); see
253. MURRAY, supra note 244, at 346-47 (explaining that expert's opinion can be weakened by showing that fact relied on is untrue or that expert failed to consider a fact); LUBET, supra note 245, at 206-07 (noting that expert's opinion is vulnerable to attack if expert "failed to conduct essential tests or procedures, or. . . neglected to considerSTEVEN LUBET, MODERN TRIAL ADVOCACY 210 (1993) ("[E]xpert's testimony may be undermined. . . by challenging its factual underpinnings . . . ."). all significant factors").
254. See United States v. Burgess, 691 F.2d 1146, 1155 (4th Cir. 1982) (upholding jury instruction that "experts, and particularly medical experts, are dependent upon information that they receive in taking a history from the patient" such that if the patient gives false information, the experts' opinions can be flawed in reliance on the "garbage in, garbage out" principle).
255. Rice, supra note 192, at 585 ("[I]f in forming an opinion someone assumes that certain facts are true, the acceptance of that opinion necessarily involves the acceptance of those assumed facts.").
256. See FED. R. EVID. Article VIII advisory committee's note; 5 WEINSTEIN & BERGER, supra note 5, ¶ 800, at 800-10 to 800-14.
257. See United States v. Sims, 514 F.2d 147, 148 (9th. Cir. 1975); supra notes 71-83 and accompanying text (discussing Sims).
258. United States v. Madoch, 935 F. Supp. 965 (N.D. Ill. 1996); see supra notes 177-88 and accompanying text (discussing Madoch).
259. See Mosteller, supra note 15, at 262.
260. See, e.g., Bryan v. John Bean Div. of FMC Corp., 566 F.2d 541, 545 (5th Cir. 1978) (noting that expert's basis must satisfy requirements of trustworthiness and necessity applicable to all exceptions to the hearsay rule); United States v. Skodnek, 896 F. Supp. 60, 65 (D. Mass. 1995) ("Rule 703 . . . is essentially another exception to the hearsay rule."); MCCORMICK, supra note 242, § 324.3, at 541 (listing Rule 703 as a "quasi-hearsay exception").
261. See Delli Paoli v. United States, 352 U.S. 232, 247 (1957); infra text accompanying note 259 (reproduction of full quote).
262. See FED. R. EVID. 803(4) advisory committee's note; O'Gee v. Dobbs Houses, Inc., 570 F.2d 1084 (2d Cir. 1978) (seeming to acknowledge the futility of the limiting instruction under rule 703).
263. Nash v. United States, 54 F.2d 1006, 1007 (2d Cir. 1932).
264. See United States v. Grunewald, 233 F.2d 556, 574 (2d Cir. 1956) (The limiting instruction "undermines a moral relationship between the courts, the jurors, and the public; like any other judicial deception, it damages the decent judicial administration of justice.").
265. 352 U.S. at 247 (Frankfurter, J., dissenting).
266. Id.
267. See Sharon Wolf & David A. Montgomery, Effects of Inadmissible Evidence and Level of Judicial Admonishment to Disregard on the Judgments of Mock Jurors, 7 J. APPLIED SOC. PSYCHOL. 205 (1977). A more recent study involving 121 undergraduate psychology students led the researcher to conclude that the participants disregarded the inadmissible evidence and followed the judge's instruction only if they thought it would be unfair to use the evidence. See Kerri L. Pickel, Inducing Jurors to Disregard Inadmissible Evidence: A Legal Explanation Does Not Help, 19 L. & H. BEHAV. 407, 421-22 (1995).
268. See Sharon Wolf & David A. Montgomery, Effects of Inadmissible Evidence and Level of Judicial Admonishment to Disregard on the Judgments of Mock Jurors, 7 J. APPLIED SOC. PSYCHOL. 205 (1977). A more recent study involving 121 undergraduate psychology students led the researcher to conclude that the participants disregarded the inadmissible evidence and followed the judge's instruction only if they thought it would be unfair to use the evidence. See Kerri L. Pickel, Inducing Jurors to Disregard Inadmissible Evidence: A Legal Explanation Does Not Help, 19 L. & H. BEHAV. 407, 421-22 (1995).
269. Regina A. Schuller, Expert Evidence and Hearsay: The Influence of "Secondhand" Information on Jurors' Decisions, 19 L. & H. BEHAV. 345, 349 (1995) (citing Nancy Pennington & Reid Hastie, Evidence Evaluation in Complex Decision Making, 51 J. PERSONALITY & SOC. PSYCHOL. 242, 242-58 (1986)). Schuller's study specifically involved expert reliance on secondhand information under rule 703. See id. at 351. For a critique of Schuller's study, see Ronald L. Carlson, Experts, Judges and Commentators: The Underlying Debate About an Expert 's Underlying Data, 47 MERCER L. REV. 481, 484-86 (1996).
270. Regina A. Schuller, Expert Evidence and Hearsay: The Influence of "Secondhand" Information on Jurors' Decisions, 19 L. & H. BEHAV. 345, 349 (1995) (citing Nancy Pennington & Reid Hastie, Evidence Evaluation in Complex Decision Making, 51 J. PERSONALITY & SOC. PSYCHOL. 242, 242-58 (1986)). Schuller's study specifically involved expert reliance on secondhand information under rule 703. See id. at 351. For a critique of Schuller's study, see Ronald L. Carlson, Experts, Judges and Commentators: The Underlying Debate About an Expert 's Underlying Data, 47 MERCER L. REV. 481, 484-86 (1996).
271. Regina A. Schuller, Expert Evidence and Hearsay: The Influence of "Secondhand" Information on Jurors' Decisions, 19 L. & H. BEHAV. 345, 349 (1995) (citing Nancy Pennington & Reid Hastie, Evidence Evaluation in Complex Decision Making, 51 J. PERSONALITY & SOC. PSYCHOL. 242, 242-58 (1986)). Schuller's study specifically involved expert reliance on secondhand information under rule 703. See id. at 351. For a critique of Schuller's study, see Ronald L. Carlson, Experts, Judges and Commentators: The Underlying Debate About an Expert 's Underlying Data, 47 MERCER L. REV. 481, 484-86 (1996).
272. See Schuller, supra note 261, at 349-50 ("[A]ttempts to alter the meaning of one piece of evidence are likely to be accompanied by changes in the jurors' interpretation of other evidence.").
273. See Pickel, supra note 260, at 423 (concluding that "in some circumstances a legal explanation may backfire"); Wolf & Montgomery, supra note 260, at 205-19. The quest of the limiting instruction has been characterized as trying to "unring a bell" or trying to "remove cream from coffee" or telling a boy to "go to a corner and not think of elephants." Michael H. Graham, Evidence and Trial Advocacy Workshop: Curative, Cautionary, and Limiting Instructions, 17 CRIM. L. BULL. 147, 149 (1981).
274. 776 F.2d 1451 (10th Cir. 1985).
275. Id. at 1458.
276. See id.
277. Accord United States v. Clement, 747 F.2d 460, 462 (8th Cir. 1984) ("Ideally, a judge's comments should aid the jury in 'separat[ing] the wheat from chaff,' . . . and in 'facilitat[ing] the application of law to factual findings.'") (citing and quoting from United States v. Tello, 707 F.2d 85, 90 (4th Cir. 1983)).
278. See United States v. Reyes, 18 F.3d 65, 71-72 (2d Cir. 1994) (holding that limiting instructions given by trial judge were inadequate in part because they "did not clearly explain the difficult mental task of considering information for one purpose but not for another").
279. The author's experience on this point is similar to that of other Evidence professors. See Edward J. Imwinkelried, A Comparativist Critique of the Interface Between Hearsay and Expert Opinion in American Evidence Law, 33 B.C. L. REV. 1, 33 (1991) ("Even after several hours of class discussion devoted exclusively to the definition of hearsay, law students find it difficult to make [the] distinction.").
280. See, e.g., Affleck, 776 F.2d at 1458 ("It cannot be assumed that the jury disregarded [the limiting instructions]."); supra note 47.
281. See Rice, supra note 192, at 585.
282. 597 A.2d 892 (D.C. 1991 ) (en banc).
283. See id. at 894, 896. Mr. Melton was diagnosed as a paranoid schizophrenic and was the subject of this civil commitment proceeding. Id. After a jury trial he was found likely to injure himself or others, and thus, was committed to the custody of a hospital. The District of Columbia Court of Appeals reversed. See In re Melton, 565 A.2d 635 (D.C. 1989). On rehearing en banc, the court of appeals reversed the appellate panel and affirmed the trial court judgment. In re Melton, 597 A.2d at 894.
284. See In re Melton, 597 A.2d at 895.
285. See id. at 900.
286. See id.
287. See id. at 907 (citations omitted).
288. See id. at 908. The court did note, however, the perplexing nature of the problem under rule 703. Melton's ultimate lack of success is at least partly due to his failure to raise at trial concerns about the efficacy of the limiting instruction. See id. at 906.
289. See id. at 907.
290. See FED. R. EVID. advisory committee's notes.
291. See FED. R. EVID. 703 & 803(4) advisory committee's notes.
292. Mosteller, supra note 15, at 261-62.
293. See supra text accompanying note 46.
294. Compare United States v. Iron Shell, 633 F.2d 77, 84 (8th Cir. 1980) (adopting two-part test under rule 803(4), which first focuses on the declarant's motivation) with United States v. Joe, 8 F.3d 1488, 1494 & n.5 (10th Cir. 1993) (Rule 803(4) requires reasonable reliance by a doctor and nothing else.); Gong v. Hirsch, 913 F.2d 1269, 1273-74 & n.4 (7th Cir. 1990) (holding that rule 803(4) contains the same requirement as rule 703 - the expert's reasonable reliance); Morgan v. Foretich, 846 F.2d 941, 950 (4th Cir. 1988) (purporting to apply Iron Shell's two-part test, but glossing over the motivation of the four-year-old declarant).
295. See, e.g., Joe, 8 F.3d at 1494-95 & n.5; United States v. Madoch, 935 F. Supp. 965, 973 (N.D. Ill. 1996).
296. See Rice, supra note 192, at 587.
297. Id. at 587-88 ("This standard satisfies the traditional test for exceptions to the hearsay rule: that the circumstances of the out-of-court utterance adequately assure reliability in terms of both the accuracy of the declarant's perception and memory and the sincerity with which the declarant recited what he perceived and remembered."). In a more recent article, Professor Rice has proposed the adoption of an additional exception to the hearsay rule admitting those statements reasonably relied upon by an expert and possessing "substantial guarantees of trustworthiness." See Rice, supra note 55, at 506.
298. Id. at 585.
299. Id. at 588 ("Because the expert's screening creates a presumption that a sufficient threshold of reliability exists, the direct assessment of those surrounding circumstances in the judicial proceeding would shift from the judge, as a question of admissibility, to the jury, as a question of the weight to be given to the information and, ultimately, to the opinion.").
300. Id. at 585 ("The value of any conclusion necessarily is tied to and dependent on its premise. Consequently, if in forming an opinion someone assumes that certain facts are true, the acceptance of that opinion necessarily involves the acceptance of those assumed facts.").
301. See Sabatino v. Curtiss Nat'l Bank, 415 F.2d 632, 636 (5th Cir. 1969) ("There are two basic tests for all exceptions to the hearsay rule: (1) The evidence must be necessary to a proper consideration of the case and (2) it must exhibit an intrinsic probability of trustworthiness."); Dallas County v. Commercial Union Assurance Co., 286 F.2d 388, 395-96 (5th Cir. 1961) (reviewing the prominence of necessity as a requisite for admission).
302. See supra notes 256-77 and accompanying text.
303. See United States v. Skodnek, 896 F. Supp. 60, 65 (D. Mass. 1995) ("Rule 703 . . . is essentially another exception to the hearsay rule.").
304. See FED. R. EVID. 705 advisory committee's note.
305. See United States v. Sowards, 339 F.2d 401, 402 (10th Cir. 1964) ("As a general Rule, an expert may testify as to hearsay matters, not to establish substantive facts, but for the sole purpose of giving information upon which the witness relied in reaching his conclusion as to value.").
306. See FED. R. EVID. 703 advisory committee's note ("In this respect the rule is designed to broaden the basis for expert opinions beyond that current in many jurisdictions and to bring the judicial practice into line with the practice of the experts themselves when not in court.").
307. See Rice, supra note 192, at 588 ("Unlike other established hearsay exceptions codified in Rules 803 and 804(b), under which the judge assesses a statement's reliability based on the circumstances surrounding its utterance, the reliability justifying admission under the proposed Rule 703 exception would be based on a third party's out-of-court assessment.").
308. 448 U.S. 56 (1980).
309. Id. at 65-66.
310. Id. at 66.
311. 502 U.S. 346 (1992).
312. Id. at 355-56 n.8.
313. Engebretsen v. Fairchild Aircraft Corp, 21 F.3d 721, 729 (6th Cir. 1994); United States v. Farley, 992 F.2d 1122, 1125 (10th Cir. 1993); Boone v. Moore, 980 F.2d 539, 542 (8th Cir. 1992); Paddack v. Dave Christensen, Inc., 745 F.2d 1254, 1262 (9th Cir. 1984).
314. See supra notes 131-57 and accompanying text.
315. Compare supra notes 71-107 and accompanying text with notes 131-57.
316. HAW. R. EVID. 703.
317. MINN. R. EVID. 703(b).
318. MO. REV. STAT. § 490.065(3) (Supp. 1996).
319. TENN. R. EVID. 703. Rhode Island, while not adopting a trustworthiness requirement, did modify rule 703 to emphasize the "reasonably relied upon" provision in the rule. The Rhode Island Rule states that if the facts or data relied upon by the expert are the "type reasonably and customarily relied upon by experts in the particular field" then the information "shall be admissible without testimony from the primary source." R.I. R. EVID. 703 (emphasis added).
320. HAW. R. EVID. 703 (adding to the federal version of rule 703 the following sentence: "The court may, however, disallow testimony in the form of an opinion or inference if the underlying facts or data indicate lack of trustworthiness."); MINN. R. EVID. 703(b) (adding to Federal Rule of Evidence 703 a trustworthiness requirement in civil cases before the underlying data may be admitted on direct examination); TENN. R. EVID. 703 (adding to rule 703 a sentence worded similarly to the Hawaii version, but requiring the judge to "disallow testimony" based on untrustworthy facts or data).
321. MO. REV. STAT. § 490.065(3).
322. 892 S.W.2d 359 (Mo. Ct. App. 1995).
323. Id. at 364. The trial court in Leake permitted defendant's expert to testify to a statement made by defendant's rehabilitation offer suggesting that plaintiff was malingering. Id. The court noted that the defendant could have called its rehabilitation officer as a witness and avoided the problem altogether. Id.
324. Wulfing v. Kansas City S. Indus., Inc., 842 S.W.2d 133, 152 (Mo. Ct. App. 1992) (A judge has "independent responsibility . . . to decide if the foundational facts meet the minimum standards of reliability as a condition of the admissibility of the opinion."); see also McCall v. Wilder, No. 03A01-9312-CVC-00455, 1994 Tenn. App. LEXIS 377, at * 16 (July 11, 1994) (Under the Tennessee version of rule 703, the court must "look carefully at the reliability of the underlying source of the expert's opinion.").
325. See infra notes 432-37 and accompanying text (proposal to add trustworthiness requirement to rule 705).
326. See In re "Agent Orange" Prod. Liab. Litig., 611 F. Supp. 1223, 1246 (E.D.N.Y. 1985), aff'd, 818 F.2d 187 (2d Cir. 1987).
327. The rule provides: "Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence." FED. R. EVID. 403.
328. 674 A.2d 1275 (Vt. 1996).
329. Id. at 1276-77.
330. Id.
331. Id. at 1277.
332. Id.
333. See supra text accompanying note 318.
334. See supra notes 290-91 and accompanying text.
335. ALASKA R. EVID. 705(c); see also TEX. R. CR. EVID. 705(d) (imposing same heightened balancing test, but only in criminal cases).
336. See, e.g., Colt Indus. Operating Corp. v. Frank W. Murphy Mfr., Inc., 822 P.2d 925, 933 (Alaska 1991) ("The reasonableness of [the expert's] reliance . . . is judged by reference to the six factors set forth in Zenith Radio Corp. v. Matsushita Elec. Indus. Co., 505 F. Supp. 1313, 1330 (E.D. Pa. 1980)."); Norris v. Gatts, 738 P.2d 344, 349-51 (Alaska 1987) (applying six factors from Zenith Radio Corp. v. Matsushita Elec. Indus. Co. for determination of reasonableness under rule 703).
337. FED. R. EVID. 609(a)(1) provides, in pertinent part: "[E]vidence that an accused has been convicted of such a crime shall be admitted if the court determines that the probative value of admitting this evidence outweighs its prejudicial effect to the accused."
338. FED. R. EVID. 609 advisory committee's note. The note identifies that when the evidence is not being used against the criminal defendant then rule 403's balancing of probative against prejudicial value is appropriate. Logically, rule 403's balancing is insufficient when the evidence is being presented against the criminal defendant.
339. CAL. EVID. CODE § 352 (West 1997).
340. 695 P.2d 189 (Cal. 1985).
341. Id. at 196 ("In the letters defendant's wife states that defendant had 'twice before' tried 'to hurt' her, that he had 'many times' threatened to kill the family . . . and that his wife feared that he would 'do this to us.'").
342. Id. at 196, 200.
343. Id. at 199.
344. Id. at 203.
345. Minnesota Mining & Mfg. Co. v. Nishika Ltd., 885 S.W.2d 603, 632 (Tex. Ct. App. 1994) (referring to Birchfield v. Texarkana Mem'l Hosp., 747 S.W.2d 361 (Tex. 1987)); see also First Southwest Lloyds Ins. Co. v. MacDowell, 769 S.W.2d 954, 958 (Tex. Ct. App. 1989) ("While an expert may generally state the basis for his opinion on direct examination, he is not necessarily entitled to state in detail all information that contributed to the formation of his opinion."). Several federal appellate courts have approved of this approach to rule 703. In Marsee v. United States Tobacco Co., 866 F.2d 319 (10th Cir. 1989), for example, the court refused to reverse the trial judge's ruling that prevented the witness from testifying in detail about conversations the doctor had with other doctors concerning the risk of oral cancer from snuff dipping. See id. at 322-23; Nachtsheim v. Beech Aircraft Corp., 847 F.2d 1261, 1270-71 (7th Cir. 1988) (noting that expert's reliance under rule 703 does not necessarily entitle the expert to disclose the underlying facts or data).
346. See Mission Ins. Co. v. Wallace Sec. Agency, Inc., 734 P.2d 405, 407 (Or. Ct. App. 1987). Plaintiff urges that federal case law interpreting the analogous federal rule shows that statements by eyewitnesses should be admissible. Plaintiffs authorities are not controlling here. . . . FRE 703 (and OEC 703) . . . [do] not give carte blanche to admitting otherwise inadmissible hearsay . . . . The eyewitness statements that plaintiff seeks to have admitted do not have such extraneous indicia of reliability. Id. (emphasis in original).
347. FED. R. EVID. 703 ; OR. REV. STAT. § 40.415 (1995).
348. See MD. R. EVID. 5-703(b).
349. See KY. R. EVID. 703(b).
350. Id.; see MD. R. EVID. 5-703(b). The additional requirements imposed by the Kentucky and Maryland versions of rule 703 are contained in an additional subpart and provide in pertinent part as follows: "If determined to be trustworthy, necessary to illuminate testimony, and unprivileged, facts or data relied upon by an expert pursuant to section (a) may in the discretion of the court be disclosed to the jury even if those facts and data are not admissible in evidence." Id.
351. See American Bar Ass'n Criminal Justice Section, Federal Rules of Evidence: A Fresh Review and Evaluation, 120 F.R.D. 299, 369-70 (1987).
352. Maryland and Kentucky adopted their versions of rule 703 in 1994 and 1990, respectively. See KY. R. EVID. 703; 1 MD. CODE ANN., Rule § 5 commentary at 731 (1996).
353. See Sabatino v. Curtiss Nat'l Bank, 415 F.2d 632, 636 (5th Cir. 1969); supra text accompanying note 291.
354. See FED. R. EVID. 703 advisory committee's note; 3 WEINSTEIN & BERGER, supra note 5, ¶ 703[01], at 703-14 (explaining that rule 703 does not include a necessity requirement).
355. See FED. R. EVID. 703 advisory committee's note.
356. See Imwinkelried, supra note 206, at 31. Professor Imwinkelried points to three developments in the law of hearsay under the federal rules: (1) the foundational requirements for some traditional exceptions were relaxed, (2) new exceptions were recognized, and (3) "catch-all" exceptions were created. See id. "If hearsay information cannot pass muster under these new, relaxed standards, there is good reason to question its reliability." Id.
357. See OHIO R. EVID. 703.
358. See KAN. STAT. ANN. § 60-456(b) (1994). The Kansas equivalent to rule 703 provides: 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. Id.
359. See ALA. R. EVID. 703 (having a rule identical to Ohio rule quoted infra text accompanying note 351).
360. See Department of Youth Servs. v. A Juvenile, 499 N.E.2d 812, 821 (Mass. 1986) (refusing to judicially adopt rule 703 and retaining common law rule); infra notes 353-56 and accompanying text.
361. OHIO R. EVID. 703.
362. OHIO R. EVID. 703 staff notes (West, WESTLAW through Feb. 2, 1997) ("The federal rule expresses no limitations on the sources of the facts and no limitations upon the methods of making them known. Ohio has not recognized the third category.").
363. 499 N.E.2d 812 (Mass. 1986).
364. Id. at 820.
365. Id. at 821. The court states: Because of the problems now arising under rule 703, we are not persuaded we should accept the principles of the proposed rule. We believe, however, that we should take a modest step by permitting an expert to base an opinion on facts or data not in evidence if the facts or data are independently admissible and are a permissible basis for an expert to consider in formulating an opinion. Id.
366. Id.
367. See Charles J. Walsh & Beth S. Rose, Increasing the Useful Information Provided by Experts in the Courtroom: A Comparison of Federal Rules of Evidence 703 and 803(18) with the Evidence Rules in Illinois, Ohio, and New York, 26 SETON HALL L. REV. 183, 243 (1995).
368. See LA. CODE EVID. ANN. art. 705 (West 1995).
369. See TEX. R. CR. EVID. 705; TEX. R. CIV. EVID. 705(d).
370. See MINN. R. EVID. 703(b).
371. See VA. CODE ANN. § 8.01-401.1 (Michie 1996).
372. See MINN. R. EVID. 703(b); VA. CODE ANN. § 8.01-401.1; see also Simpson v. Commonwealth, 318 S.E.2d 386, 391 (Va. 1984) (Section 8.01-401.1 of the Virginia Evidence Code is a "clear expression of legislative intent to retain the historic restrictions upon expert testimony in criminal cases in Virginia.").
373. MINN. R. EVID. 703(b).
374. See VA. CODE ANN. § 8.01-401.1 (emphasis added).
375. See TEX. R. CR. EVID. 705(d). This provision is identical to Alaska Rule of Evidence 705(c), although the Alaska rule applies to civil and criminal cases. See ALASKA R. EVID. 705(c).
376. ALASKA R. EVID. 705(c); TEX. R. CR. EVID. 705(d).
377. HELEN D. WENDORF ET AL., TEXAS RULES OF EVIDENCE MANUAL art. VII, at 77 n.27 (4th ed. 1995). The analysis under rule 705(d) should proceed as follows: (1) Determine whether the facts or data are sufficient to support the expert's opinion, and, if not, exclude the basis and the opinion; (2) If the basis is adequate, determine whether the underlying facts are admissible; (3) If the facts are admissible, then the test under rule 705(d) does not apply and the facts may be disclosed at the proponent's discretion; (4) If the facts are not admissible, the judge must balance the probative value against the danger of unfair prejudice from the improper use of the basis. See id. at 77.
378. See LA. CODE EVID. ANN. art. 705(b) (West 1995).
379. For a detailed argument in support of a broad subject matter approach to hearsay, see Roger Park, A Subject Matter Approach to Hearsay Reform, 86 MICH. L. REV. 51 (1987).
380. FED. R. EVID. 803(8); infra note 389 (text of rule 803(8)).
381. Cf. United States v. Lawson, 653 F.2d 299, 302 (7th Cir. 1981) (stating that an expert's testimony that was based entirely on hearsay might satisfy rule 703, but would violate the Confrontation Clause).
382. See United States v. Rollins, 862 F.2d 1282, 1293 (7th Cir. 1988); United States v. Kail, 804 F.2d 441, 447 (8th Cir. 1986); Lawson, 653 F.2d 302. In Lawson, the Seventh Circuit observed that "[t]he [g]overnment could not . . . simply produce a witness who did nothing but summarize out-of-court statements made by others." Id. (footnote omitted). The court found that access to the hearsay information was necessary to make the opportunity to cross-examine meaningful. See id.
383. See supra notes 256-69 and accompanying text.
384. See FED. R. EVID. 705 advisory committee's note. The note states that: The answer assumes that the cross-examiner has the advance knowledge which is essential for effective cross-examination. This advance knowledge has been afforded, though imperfectly, by the traditional foundation requirement. Rule 26(b)(4) of the Rules of Civil Procedure, as revised, provides for substantial discovery in this area, obviating in large measure the obstacles which have been raised in some instances to discovery of findings, underlying data, and even the identity of the experts. Id.
385. FED. R. CIV. P. 26(a)(2) and FED. R. CRIM. P. 16(e) specifically deal with expert testimony.
386. FED. R. CIV. P. 26(a)(2)(B).
387. FED. R. CIV. P. 26(b)(4)(B).
388. FED. R. CRIM. P. 16(a)(1)(E) provides in pertinent part: At the defendant's request, the government shall disclose to the defendant a written summary of testimony the government intends to use under rules 702, 703, or 705 of the Federal Rules of Evidence during its case in chief at trial. This summary must describe the witness' opinions, the bases and the reasons therefor.
389. See id.
390. N.H. R. EVID. 803(4). The rule provides as follows: Statements made for purposes of medical diagnosis or treatment and describing medical history, or past or present symptoms, pain, or sensations, or the inception or general character of the cause or external source thereof insofar as reasonably pertinent to diagnosis or treatment, regardless of to whom the statements are made, or when the statements are made, if the court, in its discretion, affirmatively finds that the proffered statements were made under circumstances indicating their trustworthiness. Id.
391. N.H. R. EVID. 803(4) notes: The overriding guarantee of trustworthiness in the rule is that the statements must have been made for purposes of medical diagnosis or treatment, as opposed to solely for the purpose of enabling a physician to testify. Although a statement may be made for both purposes, it is believed that the fact that it is made for purposes of treatment, plus the required finding by the court that the statement is trustworthy, are sufficient to justify such a statement's admissibility. 382. 665 A.2d 740 (N.H. 1995).
392. Id. at 743.
393. Id.
394. MISS. R. EVID. 803(4). The rule provides as follows: Statements made for purposes of medical diagnosis or treatment and describing medical history, or past or present symptoms, pain, or sensations, or the inception or general character of the cause or external source thereof insofar as reasonably pertinent to diagnosis or treatment, regardless of to whom the statements are made, or when the statements are made, if the court in its discretion, affirmatively finds that the proffered statements were made under circumstances substantially indicating their trustworthiness. Id. (emphasis added).
395. N.J. R. EVID. 803(4). The rule provides that: Statements made in good faith for purposes of medical diagnosis or treatment which describe medical history, or past or present symptoms, pain, or sensations, or the inception or general character of the cause or external source thereof to the extent that the statements are reasonably pertinent to diagnosis or treatment. Id.
396. See Lowe, 665 A.2d at 743 (finding trustworthiness because examination of child arose from grandparents' concern about bruises on child's body and child's presence at familiar place where she had received medical care before).
397. See, e.g., Eakes v. State, 665 So. 2d 852, 866-67 (Miss. 1995); Doe v. Doe, 644 So. 2d 1199, 1205-06 (Miss. 1994) (stating two-part test under rule 803(4) as requiring reasonable reliance and a treatment motivation, but not an independent trustworthiness requirement).
398. FED. R. EVID. 803(6) provides: A memorandum, report, record, or data compilation, in any form, of acts, events, conditions, opinions, or diagnoses, made at or near the time by, or from information transmitted by, a person with knowledge, if kept in the course of a regularly conducted business activity and if it was the regular practice of that business activity to make the memorandum, report, record, or data compilation, all as shown by the testimony of the custodian or other qualified witness, unless the source of information or the method or circumstances of preparation indicate a lack of trustworthiness. The term "business" as used in this paragraph includes business, institution, association, profession, occupation, and calling of every kind, whether or not conducted for profit. FED. R. EVID. 803(8) provides: Records, reports, statements, or data compilations, in any form, of public offices or agencies, setting forth (A) the activities of the office or agency, or (B) matters observed pursuant to duty imposed by law as to which matters there was a duty to report, excluding, however, in criminal cases matters observed by police officers and other law enforcement personnel, or (C) in civil actions and proceedings and against the Government in criminal cases, factual findings resulting from an investigation made pursuant to authority granted by law, unless the sources of information or other circumstances indicate lack of trustworthiness.
399. FED. R. EVID. 803(8) advisory committee's note; see Palmer v. Hoffman, 318 U.S. 109 (1943).
400. See FED. R. EVID. 803(6) advisory committee's note.
401. Hoffman v. Palmer, 129 F.2d 976, 991 (2d Cir. 1942), aff'd, 318 U.S. 109 (1943).
402. Id.
403. 950 F.2d 883, 910-12 (3d Cir. 1991).
404. Id.
405. R.I. R. EVID. 803(4). The rule provides that: Statements made for purposes of medical diagnosis or treatment and describing medical history, or past or present symptoms, pain, or sensations, or the inception or general character of the cause or external source thereof insofar as reasonably pertinent to diagnosis or treatment, but not including statements made to a physician consulted solely for the purposes of preparing for litigation or obtaining testimony for trial. Id. Of course, other states achieve the same result through judicial decisionmaking. See, e.g., State v. Jones, 451 S.E.2d 826, 842 (N.C. 1994) (holding that defendant's statements were not made for purpose of medical diagnosis or treatment, but instead "were made for the purpose of preparing and presenting a defense for the crimes for which he stood accused").
406. See, e.g., MICH. R. EVID. 803(4). The rule states that: Statements made for purposes of medical treatment or medical diagnosis in connection with treatment and describing medical history, or past or present symptoms, pain, or sensations or the inception or general character of the cause or external source thereof insofar as reasonably necessary to such diagnosis and treatment. Id. (emphasis added).
407. LA. CODE EVID. ANN. art. 803(4) (West 1995) comments: This paragraph follows Federal Rule of Evidence 803(4) but is narrower than Federal Rule of Evidence 803(4). Unlike federal rule 803(4), this paragraph excludes from its coverage statements made solely for purposes of diagnosis. The reliability deemed generally to inhere in statements made for purposes of medical treatment does not extend to statements made solely for diagnosis.
408. 536 A.2d 666 (Md. Ct. Spec. App. 1988).
409. Id. at 667-68.
410. Id. at 668.
411. See id. at 689-90 (citing Beahn v. Shortall, 368 A.2d 1005, 1009 (1977)).
412. See supra notes 194-205 and accompanying text (discussing United States v. Renville, 779 F.2d 430 (8th Cir. 1985)).
413. See Cassidy, 536 A.2d at 684-85. The court in Cassidy reserved its most vitriolic words for the results orientation it perceived in the Renville line of cases. The court stated: "[T]he opinions are, in our judgment, poorly reasoned. Because of the strong desire for getting a child's identification of its abuser into evidence, the opinions strain for their results. . . . [W]e reject, as an appellate modality, result-orientation and the bad law it frequently generates." Id. at 685.
414. See id. at 680.
415. See id. at 682-83 (noting that Dr. Pullman's strong social obligation to report child abuse does not "transmute the social concern into a medical one").
416. See id. at 684-88 (Under Renville there are two flaws: (1) "[F)or the first time in the history of hearsay law, the state of mind of the hearsay declarant is effectively ignored."; and (2) "Renville . . . forgot the fact that the exception is rooted in the practice of medicine.").
417. See, e.g., Gong v. Hirsch, 913 F.2d 1269, 1274 & n.4 (7th Cir. 1990); United States v. Madoch, 935 F. Supp. 965, 973 (N.D. Ill. 1996).
418. The closest provision in the California Evidence Code is section 1251, which excepts from the hearsay rule statements of past mental condition or states of mind when in issue. See CAL. EVID. CODE § 1251 (West 1995).
419. See CAL. EVID. CODE § 1253 (West 1995).
420. Section 1253 provides, in pertinent part: [E]vidence of a statement is not made inadmissible by the hearsay rule if the statement was made for purposes of medical diagnosis or treatment and describes medical history, or past or present symptoms, pains, or sensations, or the inception or general character of the cause or external source thereof insofar as reasonably pertinent to diagnosis or treatment. This section applies only to a statement made by a victim who is a minor at the time of the proceedings, provided the statement was made when the victim was under the age of 12 describing any act, or attempted act, of child abuse or neglect. CAL. EVID. CODE § 1253 (West 1995).
421. In addition, at the time of the proceeding at which the hearsay statement is introduced the declarant must be a minor. See CAL. EVID. CODE § 1253.
422. See CAL. EVID. CODE § 1252. The hearsay exception created by section 1253 is subject to the trustworthiness requirement of the preceding section, which provides: "Evidence of a statement is inadmissible under this article if the statement was made under circumstances such as to indicate its lack of trustworthiness." Id.
423. California did not previously have a provision that was parallel to federal rule 803(4), although section 1251 of the California Evidence Code admits statements of a declarant's preexisting mental or physical state if the declarant is unavailable, the statement is sufficiently trustworthy, and is offered to prove the person's condition, which is in issue in the action. See CAL. EVID. CODE § 1251.
424. See, e.g., DEL. CODE ANN. tit. 11, § 3513 (1995); FLA. STAT. ANN. § 90.803(23) (West Supp. 1997); MISS. R. EVID. 803(25); N.J. R. EVID. 63(33); 42 PA. CONS. STAT. ANN. § 5985.1 (1996); S.D. CODIFIED LAWS ANN. § 19-16-38 (1995). By way of example, the Florida statute provides as follows: (a) Unless the source of information or the method or circumstances by which the statement is reported indicates a lack of trustworthiness, an out-of-court statement made by a child victim with a physical, mental, emotional, or developmental age of 11 or less describing any act of child abuse or neglect, any act of sexual abuse against a child, . . . or any other offense involving an unlawful sexual act, contact, intrusion, or penetration performed in the presence of, with, by, or on the declarant child, not otherwise admissible, is admissible in evidence in any civil or criminal proceeding if: 1. The court finds in a hearing conducted outside the presence of the jury that the time, content, and circumstances of the statement provide sufficient safeguards of reliability. In making its determination, the court may consider the mental and physical age and maturity of the child, the nature and duration of the abuse or offense, the relationship of the child to the offender, the reliability of the assertion, the reliability of the child victim, and any other factor deemed appropriate; and 2. The child either: a. Testifies; or b. Is unavailable as a witness, provided that there is other corroborative evidence of the abuse or offense. Unavailability shall include a finding by the court that the child's participation in the trial or proceeding would result in a substantial likelihood of severe emotional or mental harm, in addition to findings pursuant to § 90.804(1). (b) In a criminal action, the defendant shall be notified no later than 10 days before trial that a statement which qualifies as a hearsay exception pursuant to this subsection will be offered as evidence at trial. The notice shall include a written statement of the content of the child's statement, the time at which the statement was made, the circumstances surrounding the statement which indicate its reliability, and such other particulars as necessary to provide full disclosure of the statement. (c) The court shall make specific findings of fact, on the record, as to the basis for its ruling under this subsection. FLA. STAT. ANN. § 90.803(23).
425. See CAL. EVID. CODE §§ 1252-1253.
426. See supra notes 168-205 and accompanying text (discussion of judicial interpretation of rule 803(4)).
427. 536 A.2d 666, 680 (Md. Ct. Spec. App. 1988).
428. Id. at 680.
429. See supra notes 396-408 and accompanying text (discussion of states imposing treatment motivation on all statements under rule 803(4)).
430. See 4 DAVID W. LOUISELL & CHRISTOPHER B. MUELLER, FEDERAL EVIDENCE § 44, at 594 (1980) ("The big difference between statements made for purposes of obtaining medical treatment and those made for purposes of diagnosis is that in the latter case there is no assurance of the candor of the declarant.").
431. See, e.g., Padgett v. Southern Ry. Co., 396 F.2d 303, 308 (6th Cir. 1968) (The exclusion of statements made for diagnosis "is based on the familiar hearsay doctrine and is designed, in practicality, to exclude the introduction of self-serving declarations of the patient under the guise of expert testimony."); Aetna Life Ins. Co. v. Quinley, 87 F.2d 732 (8th Cir. 1937) (If statements were admitted for their truth, the patient could be examined by the doctor, relate the circumstances of the injury and then call the doctor to testify to the patient's statements:); Candella v. Subsequent Injury Fund, 353 A.2d 263, 265-66 (Md. App. 1976) (When "the patient's history [is] related to a nontreating physician, . . . the trustworthiness which characterizes the declaration is no longer assured, since the patient is aware that the statements are being received primarily to enable the physician to prepare testimony . . . rather than for purposes of diagnosis and treatment."). Should it appear that the declarations were made post litem moten to an attending physician or to a skilled medical observer for the purpose of enabling the latter to testify as a witness for the declarant, the inference of trustworthiness largely disappears or is even reversed, the declaration being rejected by careful administrators as unreliable. 4 CHARLES FREDERIC CHAMBERLAYNE, A TREATISE ON THE MODERN LAW OF EVIDENCE § 2635 (1911).
432. See supra note 297 and accompanying text (discussing the declarant's state of mind as the basis for hearsay exceptions under rule 803).
433. See Gross, supra note 211, at 1158 n.137. Professor Gross questions the logic of the argument that experts are competent to judge the reliability of statements made to them "since expert witnesses are permitted to make these judgments in proceedings in which their own credibility is at issue." See id. at 1157-58.
434. See supra notes 174-205 and accompanying text (discussing conflicts among federal courts attempting to construe rule 803(4)).
435. Compare United States v. Iron Shell, 633 F.2d 77, 84 (8th Cir. 1980) (adopting two part test under rule 803(4), focusing on the declarant's motivation and the doctor's reliance) with Gong v. Hirsch, 913 F.2d 1269, 1274 & n.4 (7th Cir. 1990) (holding that the proper test under rule 803(4) is the same as rule 703: reasonable reliance by the expert).
436. Compare Morgan v. Foretich, 846 F.2d 941, 950 (4th Cir. 1988) (admitting statements to doctor to enable him to testify because rule 803(4) eliminates the distinction) with State v. Jones, 451 S.E.2d 826, 842 (N.C. 1994) (excluding statements to doctor under rule 803(4) because they "were made for the purpose of preparing and presenting a defense to the crimes for which he stood accused").
437. The rule should be revised by changing the first portion of the rule to read: "Statements made for purposes of medical treatment or diagnosis in connection with treatment . . . ." The revision would restore the declarant's motivation as a critical inquiry for every statement offered under the exception.
438. Disclosure of the statement under rule 703 should not be automatic, however. Rather, the court should examine the context in which the statements were made and decide whether the expert's reliance on them was reasonable and whether the statements are sufficiently trustworthy to be disclosed to the jury. See infra notes 431-72 (discussing reforms needed to rule 703).
439. See FED. R. EVID. 803(4) advisory committee's note.
440. A number of states which have tightened the requirements for admission of the expert's basis have revised rule 705. See, e.g., ALASKA R. EVID. 705; LA. CODE EVID. ANN. art. § 705 (West 1995); TEX. R. CR. EVID. 705. A number of other states have effectuated the change by adding an additional subpart to rule 703. See, e.g., KY. R. EVID. 703(b); MD. R. EVID. 5-703(b). The greatest appeal of revising rule 705 is that it helps separate the two issues of reliance and disclosure. By adding a trustworthiness requirement to rule 705, courts would first have to apply rule 703 and determine the reasonableness of the expert's reliance, and then would have to apply rule 705 and determine the trustworthiness of the facts or data for purposes of disclosure.
441. Rule 705 could be revised as follows: An expert may testify in terms of an opinion or inference and give reasons therefore without first testifying to the underlying facts or data or may disclose the underlying facts or data on direct examination before or after testifying to an opinion or inference and giving supporting reasons, unless the court requires otherwise. The expert may not, however, disclose on direct examination underlying facts or data that are not admissible in evidence unless the court finds that the facts or data are particularly trustworthy. In any event, the expert may be required to disclose the underlying facts or data on cross-examination.
442. Rule 703 does not place any limits on an expert's reliance on admitted evidence or matters that are within the personal knowledge of the expert. Thus, those matters can be fully disclosed through the expert, subject to other exclusionary rules. See FED. R. EVID. 703.
443. See infra notes 443-55 and accompanying text (discussing proposed reform of "reasonable reliance requirement" under rule 703).
444. See supra notes 102-105 and accompanying text.
445. See, e.g., HAW. R. EVID. 703; MINN. R. EVID. 703(b); MO. ANN. STAT. § 490.065(3) (West 1996); TENN. R. EVID. 703. The additional trustworthiness requirement has not changed in any noticeable way the analysis of courts in those states adopting them. See, e.g., Wulfing v. Kansas City S. Indus., Inc., 842 S.W.2d 133, 151-52 (Mo. Ct. App. 1992) (adopting standard resembling In re "Agent Orange" Product Liability Litigation, 611 F. Supp. 1223 (E.D.N.Y. 1985), aff'd, 818 F.2d 187 (2d Cir. 1987) approach).
446. See FED. R. EVID. 703 advisory committee's note.
447. See Rice, supra note 248, at 586 (Exclusion of the underlying facts makes the expert a "super-factfmder capable of producing admissible substantive evidence (an opinion) from inadmissible evidence.").
448. See FED. R. EVID. 803(24) & 804(b)(5). Both exceptions require that out-of-court statements have "equivalent circumstantial guarantees of trustworthiness." Id. Professor Imwinkelried has pointed out that the liberal hearsay exceptions under the federal rules and in particular, the broad residual exceptions give rise to the inference that statements falling outside of the hearsay exceptions are unreliable. See Imwinkelried, supra note 206, at 31. The use of the existing hearsay structure as a guide for applying rule 703's trustworthiness requirement also provides some certainty and predictability to the requirement.
449. Compare In re Paoli R.R. Yard PCB Litig., 35 F.3d 717, 748 (3d Cir. 1994) (construing reasonably relied upon to mean "good grounds") with In re Japanese Elec. Prod. Antitrust Litig., 723 F.2d 238, 280 (3d Cir. 1983) (determining that "reasonably relied upon" requires that the judge defer to the expert's evaluation of the underlying data), rev'd on other grounds sub nom. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574 (1986) and Zenith Radio Corp. v. Matsushita Elec. Indus. Co., 505 F. Supp. 1313, 1326, 1330 (E.D. Pa. 1980) (determining that "[r]easonably relied upon" requires "independent analysis of the trustworthiness of the data underlying the expert opinions" and listing six factors to be taken into account in the court's analysis).
450. See R.I. R. EVID. 703.
451. See BLACK'S LAW DICTIONARY 1138 (6th ed. 1990) (defining "reasonable" as "[f]air, proper, just, moderate, suitable under the circumstances"). In this era of plain meaning jurisprudence by the United States Supreme Court, the dictionary is a particularly popular reference in construing the Rules of Evidence. See, e.g., Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579, 590 (1993) (citing to Webster's Third New International Dictionary in defining the term "scientific knowledge"); Beech Aircraft Corp. v. Rainey, 488 U.S. 153, 164 (1988) (citing to Black's Law Dictionary for definition of "finding of fact").
452. See CHARLTON LAIRD, WEBSTER'S NEW WORLD THESAURUS 617 (1985) (listing synonyms for "reasonably," including sensibly, soundly, wisely, judiciously, intelligently, and soberly). Professor Rice has noted that "reasonably relied upon" imposes a requirement "that the expert's reliance be demonstrated as grounded in reason - a reasoned assessment of the reliability of the specific facts or data." See Rice, supra note 55, at 504.
453. 505 F. Supp. 1313 (E.D. Pa. 1981).
454. Id. at 1326. The court characterized its independent responsibility as requiring a sifting of the relevant facts. Id. The court rejected the idea that it should defer to the expert's determination of reasonableness finding that the "Advisory Committee . . . plainly contemplated that the trial court, as part of its admissibility judgment, would inquire into an expert's reasonable reliance." Id. at 1325.
455. Id. at 1330. The court listed six factors as its "guide" in determining reasonable reliance: (1) The extent to which the opinion is pervaded or dominated by reliance on materials judicially determined to be inadmissible, on grounds of either relevance or trustworthiness; (2) The extent to which the opinion is dominated or pervaded by reliance upon other untrustworthy materials; (3) The extent to which the expert's assumptions have been shown to be unsupported, speculative, or demonstrably incorrect; (4) The extent to which the materials on which the expert relied are within his immediate sphere of expertise, are of a kind customarily relied upon by experts in his field in forming opinions or inferences on that subject, and are not used only for litigation purposes; (5) The extent to which the expert acknowledges the questionable reliability of the underlying information, thus indicating that he has taken that factor into consideration in forming his opinion; (6) The extent to which reliance on certain materials, even if otherwise reasonable, may be unreasonable in the peculiar circumstances of the case. Id.
456. See In re Japanese Elec. Prod. Antitrust Litig., 723 F.2d 238 (3d Cir. 1983), rev'd on other grounds sub nom. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574 (1986).
457. 35 F.3d 717 (3d Cir. 1994).
458. Id. at 748.
459. 509 U.S. 579 (1993).
460. Id. at 590.
461. See Zenith Radio Corp, v. Matsushita Elec. Indus. Co., 505 F. Supp. 1313, 1325-26 (E.D. Pa. 1980).
462. 2 Cal. App. 4th 1516 (1992).
463. Id. at 1524 (quoting 2 JEFFERSON, CALIFORNIA EVIDENCE BENCHBOOK § 29.3, at 1001-02(2d ed. 1982)).
464. See supra notes 228-32 and accompanying text (noting significance of motivation of expert in assessing reliability).
465. See Engebretsen v. Fairchild Aircraft Corp., 21 F.3d 721, 729 (6th Cir. 1994); United States v. Affleck, 776 F.2d 1451, 1458 (10th Cir. 1985).
466. See supra notes 256-69 and accompanying text.
467. See Richardson v. Marsh, 481 U.S. 200, 206 (1987) (noting the "almost invariable assumption" that the jury will follow the limiting instruction).
468. See FED. R. EVID. 403.
469. 597 A.2d 892 (D.C. 1991).
470. Id. at 895, 900; see supra notes 272-79 and accompanying text (discussing In re Melton, 565 A.2d 635 (D.C. 1989)).
471. 18F.3d 65 (2d Cir. 1994).
472. Id. at 67-69. In Reyes, defendant Jeffrey Stein was convicted for conspiring to import more than five kilograms of cocaine. Id. at 66. At trial, Customs Agent Maryann Caggiano testified to statements made by other nonparty co-conspirators to Caggiano which implicated the defendant, and to the contents of a matchbook cover that had Stein's address as well as beeper numbers for two people in Columbia. The matchbook was shown to the Agent by one of the nonparty co-conspirators after that person's arrest. Id. at 67-68. The trial court admitted the hearsay statements "not for their truth but only to explain Agent Caggiano's state of mind." Id. at 69.
473. Id. at 69 (explaining that "the jury was instructed not to consider the out-of-court declarations as proof of the truth of what was said").
474. Id. at 69. The California Supreme Court, in People v. Coleman, 695 P.2d 189 (Cal. 1985), recognized this concern under the California equivalent to rule 703 (CAL. EVID. CODE § 801(b) (West 1996)). Id. at 199. The court reversed the trial court's order allowing disclosure of letters reviewed by an expert witness because the jury would be unable to limit its consideration of the victim's statements which were in the letters. Id.
475. See Reyes, 18 F.3d at 69-71.
476. See id. at 70 (adopting the first two questions posed by Reyes). This factor relates to the probative value of the evidence. The facts that support an expert's opinion are always relevant because they assist the jury in assessing the value of the opinion itself. Yet, facts that only confirm an expert's pre-existing opinion or are collateral to it and facts that the jury does not need in its deliberations should be weighed by the judge against their unfair prejudice.
477. See Reyes, 18 F.3d at 70 (discussing third question). This question invokes the unfair prejudice prong of rule 403 in terms of the need for the proffered evidence. If other, less prejudicial, evidence is available, then the judge may be wise to require its use.
478. Id. at 70 (discussing fifth question). The potential prejudice of this evidence is demonstrated by the expert's basis admitted in In re Melton, 597 A.2d 892, 895, 900 (D.C. 1991) (discussed supra at notes 272-79 and accompanying text), and United States v. Madoch, 935 F. Supp. 965, 973-74 (N.D. Ill. 1996) (admitting defendant's statements to psychiatrist regarding pattern of abuse by co-defendant husband under rules 703 and 803(4)). In both cases the admitted evidence went to the central contested issues without any opportunity for the opponents to cross-examine the declarants. See Madoch, 935 F. Supp at 972-74; In re Melton, 597 A.2d at 894, 900-01. If the same fact is established by other uncontested evidence the court should exercise its discretion under rules 403 and 611(a) of the Federal Rules of Evidence and prohibit disclosure of the prejudicial information. See Reyes, 18 F.3d at 70 (discussing second part of fifth question).
479. Id. at 70 (discussing fifth question). The potential prejudice of this evidence is demonstrated by the expert's basis admitted in In re Melton, 597 A.2d 892, 895, 900 (D.C. 1991) (discussed supra at notes 272-79 and accompanying text), and United States v. Madoch, 935 F. Supp. 965, 973-74 (N.D. Ill. 1996) (admitting defendant's statements to psychiatrist regarding pattern of abuse by co-defendant husband under rules 703 and 803(4)). In both cases the admitted evidence went to the central contested issues without any opportunity for the opponents to cross-examine the declarants. See Madoch, 935 F. Supp at 972-74; In re Melton, 597 A.2d at 894, 900-01. If the same fact is established by other uncontested evidence the court should exercise its discretion under rules 403 and 611(a) of the Federal Rules of Evidence and prohibit disclosure of the prejudicial information. See Reyes, 18 F.3d at 70 (discussing second part of fifth question).
480. See Reyes, 18 F.3d at 70 (discussing sixth question). In Reyes the court noted that the statements made by the defendant's alleged co-conspirators sent "a powerful message that the defendant was guilty" and thus, unfairly prejudiced the defendant. Id. at 71. In a similar vein, the court in People v. Coleman precluded the disclosure of three hearsay letters containing the deceased victim's incriminatory statements about the defendant because of the powerful impact such "statements from the grave" are likely to have on the jury. See Coleman, 695 P.2d at 198-99.
481. See Reyes, 18 F.3d at 70 (discussing sixth question). In Reyes the court noted that the statements made by the defendant's alleged co-conspirators sent "a powerful message that the defendant was guilty" and thus, unfairly prejudiced the defendant. Id. at 71. In a similar vein, the court in People v. Coleman precluded the disclosure of three hearsay letters containing the deceased victim's incriminatory statements about the defendant because of the powerful impact such "statements from the grave" are likely to have on the jury. See Coleman, 695 P.2d at 198-99.
482. See Reyes, 18 F.3d at 70 (discussing seventh question). This is an important part of the "unfair prejudice" inquiry. If the opponent cannot attack the evidence, then the jury is more likely to over-value it in deliberation. See id. at 71. In In re Melton, 597 A.2d at 892, the court suggested that the trial court could have required the declarant to testify as opposed to allowing the expert to repent her statement. See id. at 907. The court should utilize its discretion under rules 403 and 611(a) when appropriate and require a party to present live testimony and not merely the expert.
483. See Reyes, 18 F.3d at 70 (discussing seventh question). This is an important part of the "unfair prejudice" inquiry. If the opponent cannot attack the evidence, then the jury is more likely to over-value it in deliberation. See id. at 71. In In re Melton, 597 A.2d at 892, the court suggested that the trial court could have required the declarant to testify as opposed to allowing the expert to repent her statement. See id. at 907. The court should utilize its discretion under rules 403 and 611(a) when appropriate and require a party to present live testimony and not merely the expert.
484. See Reyes, 18 F.3d at 70 (discussing eighth question). This question is simply the culmination of the evaluation of the other inquiries.
485. See FED. R. EVID. 803(4).
486. See, e.g., United States v. Newman, 965 F.2d 206, 210 (7th Cir. 1992) ("The rationale [of rule 803(4)] applies as forcefully to a clinical psychologist as to a physician."); Morgan v. Foretich, 846 F.2d 941, 949 n.17 (4th Cir. 1988) (admitting statements to psychologist); United States v. DeNoyer, 811 F.2d 436, 438 (8th Cir. 1987) (admitting statements to psychologist); State v. Roberts, 622 A.2d 1225, 1232 (N.H. 1993) (concluding that it is "irrelevant" whether statements were made to a drug counselor, physician or psychologist); State v. Bullock, 360 S.E.2d 689, 690 (N.C. 1987) (admitting statements to psychologist); State v. Edward Charles L., 398 S.E.2d 123, 136 (W. Va. 1990); State v. Nelson, 406 N.W.2d 385, 390 (Wis. 1987) (admitting statements to psychologist).
487. See, e.g., United States v. Balfany, 965 F.2d 575, 581 (8th Cir. 1992) (admitting statements made to social worker); United States v. Provost, 875 F.2d 172, 176-77 (8th Cir. 1989) (same); DeNoyer, 811 F.2d at 438 (same).
488. See Mosteller, supra note 15, at 262; see also UNIF. R. EVID. 63(12)(b). The Uniform Rules of Evidence required that the statement relate to "an issue of declarant's bodily condition." Id.
489. See 42 U.S.C. § 300e-1(4)(A) (1994) (defining the term "medical group" as including "health professionals licensed to practice medicine or osteopathy and of such other licensed health professionals (including . . . psychologists)") (emphasis added); 10 U.S.C. § 1079(a)(13) (1994) (precluding the provision of services which are not "medically or psychologically necessary to . . . diagnose or treat a mental or physical illness") (emphasis added); ALA. CODE § 34-26-1(b) (1991) (Psychologists may not administer or prescribe drugs and must use "a psychologically oriented physician . . . to make provision for the diagnosis and treatment of medical problems by a physician."); IDAHO CODE § 54-2313 (1994) (Psychologist is not authorized to engage "in the practice of medicine" and "shall not diagnose . . . or treat a client with reference to a medical condition."); KAN. STAT. ANN. § 74-5344(g) (1992) (Psychologists are not permitted "to engage in the practice of medicine."); ME. REV. STAT. ANN. tit. 32 § 3811-3 (1988) (Psychologists are not permitted to engage in "the practice of medicine."); OK. STAT. tit. 63 § 1-707a(C) (1997) (Psychologists with staff privileges must identify "a psychiatrist, a medical doctor, or a doctor of osteopathy who shall be responsible for the medical evaluation and medical management of the patient."); R.I. GEN. LAWS § 5-44-23(d) (1995) (Psychologist is not permitted "to practice medicine.").
490. See TENN. CODE ANN. § 63-11-204(a) (1990 & Supp. 1996).
491. 852 S.W.2d 216 (Tenn. 1993).
492. Id. at 219.
493. See id. at 220 (citing People v. LaLone, 437 N.W.2d 611, 613 (Mich. 1989)); see also Mosteller, supra note 15, at 268 ("[T]here can be little argument that as a class psychological maladies are less subject to verification than physical maladies.").
494. See Barone, 852 S.W.2d at 220.
495. See Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579, 590 (1993) (adopting interpretation of rule 702 based on dictionary definitions of "scientific" and "knowledge"); Bourjaily v. United States, 483 U.S. 171 (1987) (interpreting rules 801(d)(2)(E) and 104(a) in accordance with their plain meaning).
496. See 4 LOUISELL & MUELLER, supra note 421, § 444, at 267 (Supp. 1993).
497. See supra note 476 and accompanying text.
498. See FED. R. EVID. 803(4) advisory committee's note; Tome v. United States, 115 S. Ct. 696 (1995) (The plurality of the Court points to the failure of the advisory committee's note to state any intent to modify the common law pre-motive requirement for prior consistent statements under rule 801(d)(1)(B) in support of the Court's holding that rule contains a premotive requirement).
499. See Barone, 852 S.W.2d at 219; 4 LOUISELL & MUELLER, supra note 421, at 611 ("It is not clear that a patient seeking psychiatric treatment feels the same kind of pressure to be candid that is experienced by a person seeking treatment for a physical injury or ailment."). When the purpose of an examination is not the treatment of a physical ailment, the reason for the exception in the rule ceases to exist because the patient is no longer fearful that the doctor will do something harmful to the patient's body. See People v. Meeboer, 484 N.W.2d 621, 639 (Mich. 1992) (Brickly, J., dissenting).
500. See People v. LaLone, 437 N.W.2d 611, 613 (Mich. 1989); Mosteller, supra note 15, at 268 ("There can be little argument that as a class psychological maladies are less subject to verification than physical maladies.").
501. See 4 WEINSTEIN & BERGER, supra note 5, ¶ 803(4)[01] at 803-159 (A patient's condition may have impaired her "perception, memory, or veracity.").
502. See id. (Experts in psychology and psychiatry "view everything relevant to diagnosis or treatment" because "everything relating to the patient is relevant to the patient's personality."); LOUISELL & MUELLER, supra note 421, at 611 ("[G]iven the uncertainty and tentativeness of psychiatric diagnoses, it seems that virtually any statement by the patient about his experiences in life would be considered 'reasonably pertinent.'") and § 444, at 267 (Supp. 1993) ("[T]here is virtually no limit on what is relevant to psychological evaluation.").
503. See GLEN WEISSENBERGER, FEDERAL EVIDENCE § 803.21, at 464 (1995) (noting that "[d]ifficult problems may emerge where the out-of-court statement is made in order to obtain medical aid for a mental problem" because the declarant may be impaired by his mental condition and the psychiatrist may become a "surrogate witness" for a party). In United States v. Madoch, 935 F. Supp. 965 (N.D. Ill. 1996), and United States v. Joe, 8 F.3d 1488 (10th Cir. 1993), the defendants were permitted to use psychiatrists in this way, using rule 803(4) to admit critical statements made by the defendants.
504. See Morgan v. Foretich, 846 F.2d 941, 951 (4th Cir. 1988) (Powell, J., concurring in part and dissenting in part): Few cases are more difficult to try than one of child abuse where the child is very young and does not testify in court. . . . [R]ulings on admissibility of evidence on behalf of the child are particularly sensitive. . . . [T]he district court [also] has the responsibility of shielding defendants from the admission of unduly prejudicial evidence. Id.
505. See Morgan, 846 F.2d at 943 (noting extent of problems).
506. See Cassidy v. State, 536 A.2d 666, 685 (Md. Ct. Spec. App. 1988) (Opinions admitting statements by child victims which identify their abusers under rule "strain for their results."); CHRISTOPHER E. MUELLER & LAIRD C. KIRKPATRICK, EVIDENCE § 8.41, at 953 ("The child abuse prosecutions have strained the exception severely.").
507. See, e.g., White v. Illinois, 502 U.S. 346, 349 (1992) (Child victim was four years old at time she made statements which were admitted by trial court under rule 803(4).); Morgan, 846 F.2d at 951 (Powell, J., concurring in part and dissenting in part) (Child declarant was four years old at time she made statements.).
508. See United States v. Renville, 779 F.2d 430, 436 (8th Cir. 1985); supra notes 194-201 and accompanying text.
509. See Cassidy, 536 A.2d at 684 (concluding that opinions are "poorly reasoned" as a result of "the strong desire for getting a child's identification of its abuser into evidence" and concluding: "we reject . . . result-orientation and the bad law it frequently generates").
510. See id. at 679-80 ("The subjective purpose of the declarant is vitally important"; the declarant must be "mature enough to appreciate the critical cause-and-effect connections between accurate information, correct medical diagnosis, and efficacious medical treatment"; the trustworthiness rationale of rule 803(4) "requires a certain level of conscious sophistication on the part of the declarant.").
511. 633 F.2d 77 (8th Cir. 1980).
512. See supra notes 168-76 and accompanying text.
513. Perhaps the best example of this approach is People v. Meeboer, 484 N.W.2d 621 (Mich. 1992) decided by the Michigan Supreme Court. In Meeboer, the court adopted a list of 10 factors to determine whether the trustworthiness guarantees surrounding the making of the child's statement satisfied rule 803(4). Id. at 627. Most of the factors, however, related to the general trustworthiness of the child's statements, as opposed to the child's motivation to be truthful to the doctor. The factors include the spontaneity of the statement, the terminology used by the child, the "timing of the examination," and so on. Id. Only factor number 10 specifically addresses the proper inquiry - "the existence of or lack of motive to fabricate." Id. In dissent, Justice Brickley stated that under the majority's approach: "(T]he analysis is actually transformed into an evaluation of the totality of the circumstances to evaluate the trustworthiness of the statements, rather than determining the existence of a self-interest motivation on the part of the child declarant." Id. at 636 (Brickley, J., dissenting). In Cassidy v. State, the Maryland Court of Special Appeals noted the huge distinction between the two rationales: "[A]n infantile naivete [rationale] actually contradicts the trustworthiness rationale on which the Treating Physician exception exclusively depends." Cassidy, 536 A.2d at 680.
514. See, e.g., FED. R. EVID. 804(b)(5).
515. Meeboer, 484 N.W.2d at 636 n.5 (Brickley, J., dissenting).
516. Id. at 642.
517. See FED. R. EVID. 601 (Witness must be competent to testify.); FED. R. EVID. 602 (Witness must have personal knowledge.); FED. R. EVID. 603 (Witness must take oath before giving testimony.). Remarkably, one federal court has held that child declarants need not be competent to testify before their out-of-court statements can be admitted under rule 803(4). See Morgan v. Foretich, 846 F.2d 941, 949 (4th Cir. 1988).
518. See 4 LOUISELL & MUELLER, supra note 421, § 444, at 267 (Supp. 1993).
519. See United States v. Renville, 779 F.2d 430, 435-36 (8th Cir. 1985); supra notes 194-205 and accompanying text.
520. See, e.g., United States v. Joe, 8 F.3d 1488, 1494-95 (10th Cir. 1993) (holding that reasonable reliance is the test under rule 803(4)); Morgan v. Foretich, 845 F.2d 941, 949 (4th Cir. 1988) (admitting statement of identity by child declarant despite the child's incompetence as a witness, because the doctor reasonably relied upon the child).
521. People v. Meeboer, 484 N.W.2d 621, 634 n.3 (Mich. 1992) (Brickley, J., dissenting). The dissenting judge in Meeboer concluded that "there is one, and only one, supporting rationale for the application of [rule] 803(4)." Id. See generally Mosteller, supra note 15, at 265-67 (discussing the reasonable reliance and self-interest rationales to rule 803(4)).
522. See Meeboer, 484 N.W.2d at 634 n.3 (Brickley, J., dissenting).
523. See MUELLER & KIRKPATRICK, supra note 494, at 953.
524. See id.
525. See Cassidy v. State, 536 A.2d 666, 682 (Md. Ct. Spec. App. 1988).
526. See MUELLER & KIRKPATRICK, supra note 494, at 953 ("[D]octors and social workers . . . act almost as extensions of the offices of prosecutors and police, and in some urban hospitals special areas are set aside to collect statements by abuse victims."). 515. 779 F.2d 430 (8th Cir. 1985).
527. See supra notes 194-205 and accompanying text (discussing Renville).
528. See United States v. Joe, 8 F.3d 1488, 1494-95 (10th Cir. 1993) (admitting statements of adult victim of domestic abuse identifying husband as abuser); Eakes v. State, 665 So. 2d 852, 867 (Miss. 1995) (extending the logic of admitting statements by a child victim that identify a household member or someone with regular contact with the child, to include perpetrators who are family friends, or acquaintances, or even strangers).
529. The Wyoming Supreme Court, for example, made no excuses for expanding the rules to admit hearsay statements in child abuse cases, concluding that "the function of the court must be to pursue the transcendent goal of addressing the most pernicious social ailment which afflicts our society, family abuse, and more specifically, child abuse." See Goldade v. State, 674 P.2d 721, 725 (Wyo. 1983); cf. Cassidy, 536 A.2d at 685 (criticizing result-orientation of some courts).