The opinion
Melvin Mayfield, Judge, concurring. Uniform Evidence Rule 703 allows an expert witness to base an opinion or inference, under proper circumstances, upon facts or data not admissible in evidence, and I have no problem with the statement from E. Cleary, McCormick on Evidence § 324.2 (3d ed. 1984), relied upon in the majority opinion, that an expert must be allowed to disclose the basis for his opinion. However, I want to emphasize the following statement found in the same section of McCormick on Evidence:
11 does not mean that the expert becomes the sole judge of the admissibility of the basis facts: they must still be of a type reasonably relied upon by experts in the field, and they are subject to such general evidentiary principles as exclusion for prejudice or irrelevancy.
In connection with the above statement, I also want to emphasize the following statement from Saltzburg & Redden, Federal Rules of Evidence Manual 467 (3ded. 1982):
Evidence not otherwise admissible is not admitted under this Rule for its truth; it is admitted to explain the basis of the expert opinion. A limiting instruction often should be required to explain this to the jury. However, we would emphasize that Rule 403 could be used to keep such evidence out where its admission might be unfair to an opposing party. One of the things that a Court might consider in assessing the reasonableness of reliance by an expert on facts not in evidence is whether an opposing patty could effectively examine the expert concerning the reasonableness, reliability, significance, strengths and weaknesses of the facts not in evidence.
Another quotation that I think worth special notice is found in 3 Louisell & Mueller, Federal Evidence § 389 at 663 (1979):
While Rule 703 permits an expert witness to take into account matters which are unadmitted and inadmissible, it does not follow that such a witness may simply report such matters to the trier of fact: The Rule was not designed to enable a witness to summarize and reiterate all manner of inadmissible evidence, but rather to pave the way for whatever assistance may be provided by expertise in analyzing, explaining, and interpreting such data in the whole context of the case.
Some cases that are cited by the above authorities in support of the statements I have quoted are: United States v. Brown, 548 F.2d 1194 (5th Cir. 1977); United States v. Cox, 696 F.2d 1294 (11th Cir. 1983); and Northern Nat. Gas v. Beech Aircraft, 202 Neb. 300 , 275 N.W.2d 77 (1979).
In Brown the defendant was charged with counseling, procuring and advising the preparation and filing of fraudulent income tax returns. An IRS agent was allowed to testify that between 90% and 95% of about 160 returns prepared by the defendant contained overstated itemized deductions. The opinion stated that the agent must have obtained this information through conversations with each of the taxpayers audited. The court pointed out that the defendant had no opportunity to cross-examine these taxpayers or to even adequately cross-examine the agent since she testified from memory. “Thus,” the opinion states, “the jury had no way to examine the trustworthiness of [the agent’s] testimony.” In a footnote the opinion noted that the agent’s testimony was not admissible under Rule 703 because she was not testifying as an expert but “to establish as a fact — not opinion — that defendant had committed similar acts in the past.”
In Cox the court said: “Although certain hearsay testimony by experts is permitted, it must be based on the type of evidence ‘reasonably relied upon by experts in the particular field in forming opinions or inferences upon the subject.’ . . . The testimony being offered by this witness was of a historical nature.” And in the Northern Nat. Gas case the trial court declared a recess when it became apparent that there was a problem with the admissibility of the expert’s testimony. After an offer of proof in chambers, the court held that the data sought to be introduced by the expert’s testimony went far beyond data reasonably relied upon by experts in his field. In affirming the trial court’s action, the appellate court said:
While under our Rules of Evidence the expert may not be required to disclose the underlying facts or data before rendering his opinion, the trial court on its own motion can require such disclosure. ... In this case the trial court made such a requirement, and upon.hearing what the expert proposed to testify, concluded that neither the record nor the apparent qualifications of the expert would justify such an opinion. A trial court is given large discretion in determining whether or not the witness’ qualification to state his opinion has been established, and this discretion will not ordinarily be disturbed on appeal unless there is an abuse of that discretion.
I have called attention to the above because the question involved in this case has not been previously considered by us and I have found very little discussion of the matter. It is with reluctance that I agree to reverse this case; however, I think in fairness to all involved, an opportunity should be given for a new trial after court and counsel have been able to carefully consider the matter. It should be noted that the majority opinion is based on the record we have before us. In the event of a new trial, it seems to me that a proffer of this evidence by question and answer, out of the presence of the jury, might be helpful. In that way the real purpose of the evidence sought to be introduced could be determined and, if admissible, any limitations upon its use could be set in the calm of the court’s chambers instead of the pressure of the courtroom.
I concur in the reversal and remand of this case.