Rule 703. Bases of opinion testimony by experts

Alabama Rules of Evidence

Article VII. Opinions and Expert Testimony

Rule 703.

Bases of opinion testimony by experts.

The facts or data in the particular case upon which an expert bases an opinion or inference

may be those perceived by or made known to the expert at or before the hearing. If of a type

reasonably relied upon by experts in the particular field in forming opinions or inferences upon

the subject, the facts or data need not be admissible in evidence in order for the opinion or

inference to be admitted. Facts or data that are otherwise inadmissible shall not be disclosed to

the jury by the proponent of the opinion or inference unless the court determines that their

probative value in assisting the jury to evaluate the expert's opinion substantially outweighs their

prejudicial effect

[Amended 8-15-2013, 3ff. 10-1-2013.]

Advisory Committee’s Notes

Experts may acquire the facts, upon which they base their opinions and testimony, by

firsthand observation. This would be exemplified by a treating physician who is called to testify.

Armstead v. Smith, 434 So.2d 740 (Ala.1983); Jones v. Keith, 223 Ala. 36, 134 So. 630 (1931).

However, experts historically have been exempted from the requirement of possessing firsthand

knowledge; indeed, experts are the only witnesses so exempted. The common law has

recognized the familiar hypothetical question as a primary source from which the expert could

gain a knowledge, albeit secondhand, of the facts. Alabama Power Co. v. Robinson, 447 So.2d

148 (Ala.1983). Under Rule 703, two additional sources exist for the facts upon which the

expert’s opinion may be based. First, the expert may attend the trial and there be made privy to

the facts upon which his or her testimony is to be based. This means of being furnished the facts,

insofar as not requiring a hypothetical question, is new to Alabama practice. See Porter v. State,

135 Ala. 51, 33 So. 694 (1903); Gunter v. State, 83 Ala. 96, 3 So. 600 (1888)

he facts upon which the

expert’s opinion may be based. First, the expert may attend the trial and there be made privy to

the facts upon which his or her testimony is to be based. This means of being furnished the facts,

insofar as not requiring a hypothetical question, is new to Alabama practice. See Porter v. State,

135 Ala. 51, 33 So. 694 (1903); Gunter v. State, 83 Ala. 96, 3 So. 600 (1888). Rule 703 also

provides, however, that the facts may be made known to the expert outside the trial or hearing

at which the expert is testifying. This includes data presented to the expert by means other than

personal perception, such as through the opinions, records, or reports of others.

Rule 703 leaves unaffected the preexisting Alabama law requiring that the facts or data

relied upon by the expert, and gotten by the expert other than by firsthand knowledge, generally

must be admitted into evidence. See C. Gamble, McElroy’s Alabama Evidence § 127.01(5) (4th

ed. 1991). An expert generally may not, for example, base an opinion upon inadmissible hearsay.

Ex parte Wesley, 575 So.2d 127 (Ala.1990). See also T.G.S. v. D.L.S., 608 So.2d 743

(Ala.Civ.App.1992); C. Gamble, McElroy’s Alabama Evidence § 100.01 (4th ed. 1991). Rule 703

is taken verbatim from Fed.R.Evid. 703, but it omits that portion of the federal rule providing that

an expert may base an opinion upon inadmissible evidence if it is of a type reasonably relied

upon by experts in the particular field in forming opinions. See Fed.R.Evid. 703. However, it

should be emphasized that the Alabama case law generally precluding an opinion based upon

the unadmitted records or reports of others does recognize exceptions. See, e.g., Ex parte

Wesley, 575 So.2d 127, 129 (Ala.1990) (acknowledging such exceptions); Sidwell v. Wooten,

473 So.2d 1036 (Ala.1985) (expert allowed to give opinion as to value based at least in part upon

hearsay); Jackson v

er, it

should be emphasized that the Alabama case law generally precluding an opinion based upon

the unadmitted records or reports of others does recognize exceptions. See, e.g., Ex parte

Wesley, 575 So.2d 127, 129 (Ala.1990) (acknowledging such exceptions); Sidwell v. Wooten,

473 So.2d 1036 (Ala.1985) (expert allowed to give opinion as to value based at least in part upon

hearsay); Jackson v. State, 412 So.2d 302 (Ala.Crim.App.1982) (permitting coroner to base

opinion as to cause of death at least partially upon unadmitted toxicologist’s autopsy report). See

also C. Gamble, McElroy’s Alabama Evidence § 130.01 (4th ed. 1991).

Advisory Committee's Notes to Amendment to Rule

703 Effective October 1, 2013

Rule 703 has been amended by adding a second and third sentence to the former rule.

The two new sentences are taken verbatim from Rule 703 of the Federal Rules of Evidence and

make the Alabama Rule identical to its federal counterpart. The amendment abandons the

traditional common-law rule that required information upon which an expert relied in forming an

opinion to be admitted into evidence, but which also recognized exceptions. See Swanstrom v.

Teledyne Continental Motors, Inc., 43 So. 3d 564, 579 (Ala. 2009) (noting such exceptions and

modifications); 1 C. Gamble & R. Goodwin, McElroy's Alabama Evidence § 127.02(5) (6th ed.

2009) ("Alabama's rule, precluding expert testimony based on inadmissible facts or data has ...

been judicially breached in certain situations."). Cf. Johnson v. Nagle, 58 F. Supp. 2d 1303, 1358

n.46 (N.D. Ala. 1999) (describing Alabama law as "confusing").

Abandonment of the common-law rule does not mean that expert opinions based on

otherwise inadmissible evidence will be automatically admitted

("Alabama's rule, precluding expert testimony based on inadmissible facts or data has ...

been judicially breached in certain situations."). Cf. Johnson v. Nagle, 58 F. Supp. 2d 1303, 1358

n.46 (N.D. Ala. 1999) (describing Alabama law as "confusing").

Abandonment of the common-law rule does not mean that expert opinions based on

otherwise inadmissible evidence will be automatically admitted. As amended, the second

sentence of Rule 703 provides: "If of a type reasonably relied upon by experts in the particular

field in forming opinions or inferences upon the subject, the facts or data need not be admissible

in evidence in order for the opinion or inference to be admitted." The phrase "reasonably relied

upon" allows an expert to base an opinion on information not admitted into evidence only if other

experts in the field normally and customarily rely on such information in forming opinions, and

only if such reliance is reasonable. See United States v. Steed, 548 F.3d 961, 975 (11th Cir.

2008) ("'Rule 703, however, is not an open door to all inadmissible evidence disguised as expert

opinion.' ... [U]nder the Rule, 'a law enforcement officer testifying as an expert witness may rely

on information he received from other people if such sources of information were regularly relied

upon by experts in his field.'" (citations omitted)); Moore v. Ashland Chem., Inc., 126 F.3d 679,

691 (5th Cir. 1997) ("In determining the preliminary question of whether reliance by the expert is

reasonable, the party calling the witness must satisfy the court, both that such facts, data or

opinions are of the type customarily relied upon by experts in the field and that such reliance is

reasonable.").

In many cases the result reached under the amended rule will be the same as under

common-law rule. For example, Alabama courts recognized an exception to the common-law

rule that allowed admission of expert opinion testimony based on hearsay if the hearsay was

ch facts, data or

opinions are of the type customarily relied upon by experts in the field and that such reliance is

reasonable.").

In many cases the result reached under the amended rule will be the same as under

common-law rule. For example, Alabama courts recognized an exception to the common-law

rule that allowed admission of expert opinion testimony based on hearsay if the hearsay was

"'"customarily relied on by experts and likely to be trustworthy...."'" Swanstrom v. Teledyne

Continental Motors, Inc., 43 So. 3d at 579 (emphasis omitted). The amendment is consistent

with this exception. Hearsay that is not trustworthy would not satisfy the "reasonably relied upon"

requirement of the amended rule.

The last sentence of Rule 703 is identical to the sentence added to Federal Rule 703 by

amendment in 2000, and it has been added for the same reason—to emphasize that when an

expert reasonably relies on otherwise inadmissible information to form an opinion the underlying

information is not admissible simply because the expert's opinion is admissible. The advisory

committee's notes accompanying the 2000 amendment to Federal Rule 703 provide an

explanation of how the amendment to the federal rule should be interpreted, which applies

equally to the amendment to Ala. R. Evid. 703.

"When information is reasonably relied upon by an expert and yet is

admissible only for the purpose of assisting the jury in evaluating an expert's

opinion, a trial court applying this Rule must consider the information's probative

value in assisting the jury to weigh the expert's opinion on the one hand, and the

risk of prejudice resulting from the jury's potential misuse of the information for

substantive purposes on the other. The information may be disclosed to the jury,

upon objection, only if the trial court finds that the probative value of the information

in assisting the jury to evaluate the expert's opinion substantially outweighs its

prejudicial effect

ert's opinion on the one hand, and the

risk of prejudice resulting from the jury's potential misuse of the information for

substantive purposes on the other. The information may be disclosed to the jury,

upon objection, only if the trial court finds that the probative value of the information

in assisting the jury to evaluate the expert's opinion substantially outweighs its

prejudicial effect. If the otherwise inadmissible information is admitted under this

balancing test, the trial judge must give a limiting instruction upon request,

informing the jury that the underlying information must not be used for substantive

purposes. See [Ala. R. Evid.] 105. In determining the appropriate course, the trial

court should consider the probable effectiveness or lack of effectiveness of a

limiting instruction under the particular circumstances.

"The amendment governs only the disclosure to the jury of information that

is reasonably relied on by an expert, when that information is not admissible for

substantive purposes. It is not intended to affect the admissibility of an expert's

testimony. Nor does the amendment prevent an expert from relying on information

that is inadmissible for substantive purposes.

"Nothing in this Rule restricts the presentation of underlying expert facts or

data when offered by an adverse party. See [Ala. R. Evid.] 705. Of course, an

adversary's attack on an expert's basis will often open the door to a proponent's

rebuttal with information that was reasonably relied upon by the expert, even if that

information would not have been discloseable initially under the balancing test

provided by this amendment. Moreover, in some circumstances the proponent

might wish to disclose information that is relied upon by the expert in order to

'remove the sting' from the opponent's anticipated attack, and thereby prevent the

jury from drawing an unfair negative inference

on by the expert, even if that

information would not have been discloseable initially under the balancing test

provided by this amendment. Moreover, in some circumstances the proponent

might wish to disclose information that is relied upon by the expert in order to

'remove the sting' from the opponent's anticipated attack, and thereby prevent the

jury from drawing an unfair negative inference. The trial court should take this

consideration into account in applying the balancing test provided by this

amendment.

"This amendment covers facts or data that cannot be admitted for any

purpose other than to assist the jury to evaluate the expert's opinion. The balancing

test provided in this amendment is not applicable to facts or data that are

admissible for any other purpose but have not yet been offered for such a purpose

at the time the expert testifies.

"The amendment provides a presumption against disclosure to the jury of

information used as the basis of an expert's opinion and not admissible for any

substantive purpose, when that information is offered by the proponent of the

expert. In a multi-party case, where one party proffers an expert whose testimony

is also beneficial to other parties, each such party should be deemed a

'proponent' within the meaning of the amendment."

Fed. R. Evid. 703 (Advisory Committee's Notes).

Note from reporter of decisions: The order amending Rule 404(a), Rule 405(a), Rule

407, Rule 408, Rule 412, Rule 510, Rule 608(b), Rule 703, Rule 801(d), Rule 803(6), Rule

804(b), and Rule 1103, Ala. R. Evid., and adopting Rule 902(11) and (12), Ala. R. Evid., and the

Advisory Committee's Notes to the amendment or adoption of these rules, effective October 1,

2013, is published in that volume of Alabama Reporter that contains Alabama cases from ___

So. 3d.