Expert Witnesses and Challenges to Expert Testimony Pt. 2

This is a continuation of Expert Witnesses and Challenges to Expert Testimony Pt. 1 in the December 2020 issue of Voice for the Defense.

III.  Texas Rule of Evidence 703
Bases of an Expert’s Opinion Testimony

An expert may base an opinion on facts or data in the case that the expert has been made aware of, reviewed, or personally observed.  If experts in the particular field would reasonably rely on those kinds of facts or data in forming an opinion on the subject, they need not be admissible for the opinion to be admitted.

A. Basis of Expert Opinion

Rule 703 describes the type of information upon which an expert may base an opinion. “An expert’s opinion can be based on (1) facts the expert has personally observed, (2) facts reviewed by the expert, (3) facts the expert has been made aware of, (4) facts presented to the expert at a trial or hearing in the form of hypothetical questions, and (5) facts that are inadmissible as evidence.”  Brown and Rondon, Texas Rules of Evidence Handbook, Rule 703, p.737 (2019); Hart v. Van Zandt, 399 S.W.2d 791, 798 (Tex. 1965) (doctor should have been allowed to give an opinion on the cause of patient’s condition based on a personal examination, patient’s history and correspondence with other doctors); Williams v. Illinois, 567 U.S. 50, 67, 69 (2012) (plurality op.) (“It has long been accepted that an expert witness may voice an opinion based on facts concerning the events at issue in a particular case, even if the expert lacks first-hand knowledge of those facts. . . .  Modern rules of evidence continue to permit experts to express opinions based on facts about which they lack personal knowledge, but these rules dispense with the need for hypothetical questions.  [A]n expert may base an opinion on facts that are ‘made known to the expert at or before the hearing,’”); Duckett v. State, 797 S.W.2d 906, 920 n.17 (Tex. Crim. App. 1990) disapproved on other grounds, Cohn v. State, 849 S.W.2d 817 (Tex. Crim. App. 1993) (“Rule 703 provides that the facts or information upon which an expert witness bases an opinion or inference includes that which he or she perceives or is made known to the expert at or before the hearing.”). The facts and data underlying an expert opinion need not be admissible themselves for the opinion to be admissible, as long as experts in the particular field would reasonable rely on those kinds of otherwise inadmissible facts or data in forming an opinion. In the Commitment of Regalado, 598 S.W.3d 736, 741 (Tex. App.-Amarillo 2020).

“Physicians routinely rely on a variety of sources, including patients and family members, medical records kept by others, conversations with the nurses and technicians, and x-rays, CT scans, and other test results. If physicians make treatment decisions based on such data, the argument goes, the rules of evidence should not preclude them merely from offering an opinion based on the same data. Their training and experience enable them to gauge the reliability of the hearsay data that they routinely rely on in their professional lives. Physicians also routinely consult with specialists and other physicians and rely on their opinions. Rule 703 allows an expert to consider other expert’s opinions in drawing their own opinion.”  Goode and Wellborn, Texas Practice, Guide To The Texas Rules Of Evidence, Vol. 2, 4th Ed. 2016, § 703.3, p.113; Gharda USA, Inc. v. Control Solutions, Inc., 464 S.W.3d 338, 352 (Tex. 2015) (“No rule prohibits experts from using other experts opinions to formulate new opinions based on their own expertise.  In fact, Tex. R. Evid. 703, and our prior cases contemplate exactly such an arrangement.”); Anderson v. Gonzales, 315 S.W.3d 582, 587 (Tex. App. – Eastland 2010, no pet.) (“An expert may rely on the opinions of other individuals that have rendered reports or diagnoses.”); Roberts v. Williams, 111 S.W.3d 113, 121-122 (Tex. 2003) (pediatrician based opinion in part on pediatric neurologist); Stam v. Mack, 984 S.W.2d 747, 749-750 (Tex. App. – Texarkana 1999, no pet.) (trial court did not err in allowing expert pediatrician to base opinion in part on expert radiologist’s opinion); Associated Indem. Corp. v. Dixon, 632 S.W.2d 833, 835-836 (Tex. App. – Dallas 1982, writ ref’d n.r.e.) (“Medical experts may rely on ‘examinations, tests and diagnosis by other doctors’”.). “Rule 703 goes beyond simply eliminating the need to introduce otherwise admissible data; expert opinion may be predicated solely on inadmissible hearsay.”  Goode and Wellborn, supra at 114; Wood v. State, 299 S.W.3d 200, 212 (Tex. App. – Austin 2009, pet. ref’d). Opinions based on evidence already admitted are admissible. E.I. du Pont de Nemours & Co. v. Robinson, 923 S.W.2d 549, 563 (Tex. 1995).

B. Hypothetical Questions

An expert may base his or her opinion on facts presented through hypothetical questions.  To be proper under Rule 703, the hypothetical questions must be based on facts and evidence, facts within the personal knowledge of the witness, or facts assumed from common or judicial knowledge.  Gonzales v. State, 4 S.W.3d 406, 417-418 (Tex. App.–Waco 1999, no pet.). The rule does not require the expert to have personal knowledge of the facts contained in the hypothetical question.  Matson v. State, 819 S.W.2d 839, 851 (Tex. Crim. App. 1991); Moore v. State, 836 S.W.2d 255, 259 (Tex. App.–Texarkana 1992, pet. ref’d). The questions may assume facts per the questioner’s theory of the case as long as the assumed facts can be inferred from facts and evidence.  Barefoot v. State, 596 S.W.2d 875, 887-888 (Tex. Crim. App. 1980).  The questions do not have to assume all of the facts presented in evidence. The questioner can limit the facts the experts should consider on direct examination, anticipating that the opposing party will vary the hypothetical on cross-examination.

However, if an omission makes the hypothetical questions misleading, the question is improper. Harris v. Smith, 372 F.2d 806, 812 (8th Cir. 1967).  Hypothetical questions may include facts not yet admitted into evidence as long as the proponent of the expert testimony eventually introduces those facts into evidence.  If testimony supporting the hypothetical is never offered, a court has the discretion to strike the expert’s opinion and to instruct the jury not to consider the testimony in its deliberations. If an instruction to the jury appears insufficient to cure the harm the trial judge may declare a mistrial. Brown and Rondon, Texas Rules of Evidence Handbook 2019, p. 740. The use of hypothetical questions has been subjected to criticism as being clumsy, artificial, and time-consuming. Due to the change in modern evidentiary rules that allow an expert to base his opinion on a broader range of information, the use of the hypothetical question is now generally unnecessary. Williams v. Illinois, 567 U.S.50 69 (2012) (plurality op.). 

C. Confrontation Issues

Rule 703 allows expert witnesses to base opinions on inadmissible facts, but the rules of evidence are subject to constitutional provisions.  Crawford v. Washington, 541 U.S.36, 61 (2004); Wood v. State, 299 S.W.3d 200, 212 (Tex. App.–Austin 2009, pet. ref’d) (“[E]vidence rules cannot trump the Sixth Amendment”). Therefore, Confrontation Clause issues can arise in criminal cases where an expert relies on hearsay information in forming an opinion. There is not a problem if the expert is available for cross-examination and the underlying information is not used to prove the truth of the matter asserted but instead is used only to explain the basis of the expert’s opinion. Martinez v. State, 311 S.W.3d 104, 112 (Tex. App.–Amarillo 2010, pet. ref’d) (Confrontation Clause not violated merely because an expert bases an opinion on inadmissible testimonial hearsay; testifying expert’s opinion is not hearsay and testifying expert is available for cross-examination).

However, if the expert conveys the substance of the testimonial out of court hearsay statements to the jury, the defendant has not had an opportunity to cross-examine the person who made the statements and the proponent of the expert testimony does not establish the declarant’s availability, the defendant’s right to confrontation is violated.  Crawford v. Washington, 541 U.S. at 68; United States v. Mejia, 545 F.3d 179, 198-199 (2nd Cir. 2008) (expert’s reliance on the repetition of out of court testimonial statements by individuals during the course of custodial interrogations violated the defendant’s rights under the Confrontation Clause). Also, out of court testimonial statements cannot be communicated to the jury in the guise of an expert opinion.  United States v. Lombardozzi, 491 F.3d 61, 72 (2nd Cir. 2007); United States v. Flores-de-Jesus, 569 F.3d 8, 19-20 (1st Cir. 2009). Testimonial statements do not have to be spoken communication.

In Melendez-Diaz v. Massachusetts, the Supreme Court held that affidavits by chemists declaring that the evidence seized was cocaine were testimonial statements under Crawford, admission of the certificates without the chemists’ testimony violated the defendant’s confrontation rights because the certificates were functionally identical to live, in-court testimony, and there was no showing that the analysts were unavailable to testify at trial, and the defendant had a prior opportunity to cross-examine them. Melendez-Diaz v. Massachusetts, 557 U.S. at 310-311.  However, when an expert bases an opinion on inadmissible evidence that does not reveal the contents of the evidence in his testimony, there is generally no violation of the Confrontation Clause.  Williams v. Illinois, 367 U.S. at 78, 79.

IV. Texas Rule of Evidence 704
Opinion on An Ultimate Issue

An opinion is not objectionable just because it embraces an ultimate issue

Rule 704 allows witnesses to express opinions on ultimate issues to be decided by the trier of fact.  It is a rejection of the common-law rule that no witness could testify to an ultimate issue in a trial for fear the witness might invade the province of the jury.  The current rule focuses on whether an opinion is otherwise admissible or is objectionable under another evidentiary rule.  Both lay and expert witnesses may give an opinion about an ultimate fact or issue under Rule 704 as long as the lay opinion is helpful under Rule 701 or the expert’s opinion will assist the trier of fact under Rule 702.  Helena Chem Co. v. Wilkins, 477 S.W.3d 486, 499 (Tex. 2001); Blumenstetter v. State, 135 S.W.3d 234, 248-249 (Tex. App.–Texarkana 2004, no pet.) (expert testimony that defendant was intoxicated based on his breath-test results and retrograde extrapolation should have been excluded as a scientifically unreliable opinion on an ultimate issue under Rule 704); Gonzales v. State, 4 S.W.3d 406, 417-418 (Tex. App.–Waco 1999, no pet.) (expert testimony about Child Sexual Abuse Accommodation Syndrome and typical behavior patterns of victims aided jury and did not decide ultimate fact issues); Russell v. Ramirez, 949 S.W.2d 480, 489 (Tex. App.– Houston [14th Dist.] 1997, no writ) (under Rule 704, accident reconstruction witness could testify that defendant driver’s failure to drive at a legal speed limit was a “cause in fact” of the passenger’s death). 

Opinions that do no more than tell the jury what verdict to return, whether a criminal defendant is guilty or innocent, what punishment to assess, or what witnesses to believe, are mere personal conclusions and are not helpful to a jury and therefore not admissible.  Kirkpatrick v. State, 747 S.W.2d 833, 836 (Tex. App.–Dallas 1987, pet. ref’d) (while Rule 704 authorizes opinion testimony on an ultimate issue, the opinion must be otherwise admissible and the opinion of one witness as to the veracity of another’s testimony is not otherwise admissible); Taylor v. State, 774 S.W.2d 31, 34 (Tex. App.–Houston [14th Dist.] 1989, pet. ref’d) (error to permit police officer to testify that defendant’s statement to him was not credible; witness could not give an opinion about the truth or falsity of other testimony, but error was harmless because the “jury could not logically have reached a different conclusion”); Ayala v. State, 352 S.W.2d 955, 956 (Tex. Crim. App. 1962) (counsel cannot ask a witness’ opinion on whether another witness’ testimony is true or false, but the defendant was not harmed when State cross-examined him on whether police officers were incorrect in their testimony about his intoxicated demeanor); Smith v. State, 737 S.W.2d 910, 915-916 (Tex. App.–Ft. Worth 1987, pet. ref’d) (defendant could not ask a doctor his opinion about whether a child “had been raped or not” because the response would have amounted to an inadmissible comment on the child’s credibility).

A witness cannot give an opinion on a pure question of law because such a question is exclusively for the court to decide and is not an ultimate issue for the trier of fact.  Williams v. State, 531 S.W.3d 902, 921 (Tex. App.– Houston [14th Dist.] 2017, pet. granted 3/21/18).  An expert may not instruct the jury on the requirements of the law or express an opinion on the meaning or content of the law and the jurisdiction. Brown and Rondon, Texas Rules of Evidence Handbook 2019, pp. 752-753. Courts have permitted expert witnesses to offer opinions on mixed questions of law and fact in which “a standard or measure has been fixed by law and the question is whether the person or conduct measures up to that standard.” Rule 704 does not permit any witness to testify that a particular legal standard has or has not been met when the standard is expressed as a legal term that would be unclear to those outside the legal profession. Thus, for the opinion to be admissible, there must be a showing that the witness knows the proper legal definition in question. If the legal term carries an ordinary meaning that is understood by or can be made clear to the witness, Rule 704 does not bar opinion testimony on that matter.  If the term is one that the witness does not normally use or that does not carry an ordinary meaning, the witness may not use that term in testimony unless the term has been defined and clarified by the judge.  Id. at pp. 753-754.

V. Texas Rule of Evidence 705
Disclosing the Underlying Facts or Data and Examining an Expert About Them

(a)  Stating an Opinion Without Disclosing the Underlying Facts or Data Unless the court orders otherwise, an expert may state an opinion–and give the reasons for it–without first testifying to the underlying facts or data. But the expert may be required to disclose those facts or data on cross-examination.

(b)  Voir Dire Examination of an Expert About the Underlying Facts or Data. Before an expert states an opinion or discloses the underlying facts or data, an adverse party in a civil case may–or in a criminal case must–be permitted to examine the expert about the underlying facts or data. This examination must take place outside the jury’s hearing.

(c)  Admissibility of Opinion. An expert’s opinion is inadmissible if the underlying facts or data do not provide a sufficient basis for the opinion.

(d)   When Otherwise Inadmissible Underlying Facts or Data May Be Disclosed; Instructing the Jury. If the underlying facts or data would otherwise be inadmissible, the proponent of the opinion may not disclose them to the jury if their probative value in helping the jury evaluate the opinion is outweighed by their prejudicial effect.  If the court allows the proponent to disclose those facts or data the court must, upon timely request, restrict the evidence to its proper scope and instruct the jury accordingly.

The procedural provisions of Rule 705 serve three purposes: (1) to ensure that the judge and opposing party have an opportunity to discover whether the proffered expertise is based on sufficiently reliable underlying facts or data to be admissible, (2) to ensure that inadmissible facts or data reasonably relied on by an expert and disclosed to the jury are not misused as substantive evidence by the fact-finder, and (3) to provide the trial judge with the discretion to prevent disclosure of inadmissible facts or data that, although supportive of the expert’s opinion, that are unfairly prejudicial. Rule 705 permits a broader range of expert witness testimony than the common law did and allows greater flexibility in how the expert may testify. Brown and Rondon, Texas Rules of Evidence Handbook 2019, pp. 755-756.

Rule 705(a) permits an expert to give an opinion without first testifying to the underlying facts or data.  Rule 705(b) requires the trial judge to give the opposing party an opportunity, if the party so requests, to voir dire the expert outside the jury’s presence on the facts and data underlying their opinions. In civil cases, the trial court has the discretion to provide such an opportunity. In criminal cases, it is mandatory. Rule 705(c) makes the expert’s opinion inadmissible if the court finds that the expert does not have a sufficient basis for their opinion.  Rule 705(d) provides that, if the probative value of the inadmissible facts or data on which the expert is reasonably relying in helping the jury to evaluate the opinion is outweighed by their prejudicial effects, courts must exclude these underlying facts or data. Joiner v. State, 825 S.W.2d 701, 708 (Tex. Crim. App. 1992) (court must determine whether disclosure of data would be “more prejudicial than probative”); Kramer v. State, 818 S.W.2d 923, 925 (Tex. App.–Houston [14th Dist.] 1991, pet. ref’d) (evidence may be admitted if “the probative value outweighs the probability that it will be improperly used by the jury”); Speering v. State, 763 S.W.2d 801, 807 (Tex. App.–Texarkana 1988) (court must not permit disclosure of underlying evidence to the jury if evidence’s value in supporting expert’s opinion is outweighed by the danger that it will be used for an improper purpose), reformed on other grounds, 797 S.W.2d 36 (Tex. Crim. App. 1990).  Rule 705(d) is slanted more toward exclusion than is Rule 403, where the probative value must be “substantially” outweighed by a counterfactor before the relative evidence may be excluded. Brown and Rondon, Texas Rules of Evidence Handbook 2019, pp. 756-757.

A. Rule 705(a). Stating An Opinion Without Disclosing Underlying Facts or Data

“Rule 705(a) permits the expert to give an opinion at the outset of the explanatory testimony without first testifying to the underlying facts or data. In fact, the rule permits the witness to be qualified as an expert and then give a one-sentence opinion under direct examination.”  Brown and Rondon, supra at 757. A primary goal of Rule 705 was to eliminate the need for the cumbersome hypothetical question that had historically been the only mode for an expert with no personal knowledge of the facts to express an opinion. While the rule still allows hypothetical questions, it does not require them. The trial judge retains the discretion to require advance disclosure of facts and data that the expert used in forming the opinion.  Brown and Rondon, supra at 758. Because an expert who has no personal knowledge of the specific facts of a case, is not limited under Rule 703 to giving an opinion in response to a hypothetical question, they can base an opinion solely on inadmissible and unadmitted evidence. The rule also eliminates the need to inform the jury, before the expert gives the opinion, of all the facts taken into account in forming the opinion.  Joiner v. State, 825 S.W.2d 701, 707-708 (Tex. Crim. App. 1992); Ramirez v. State, 815 S.W.2d 636, 651 (Tex. Crim. App. 1991). If the facts and data on which the opinion is based are not disclosed by the proponent of the evidence, ordinarily the opponent will request such disclosure on cross-examination. Nenno v. State, 970 S.W.2d 549, 564 (Tex. Crim. App. 1998); Moranza v. State, 913 S.W.2d 718, 727-728 (Tex. App.– Waco 1995, pet. ref’d) (trial court did not err in allowing State to impeach expert witness with hearsay statements included in another expert’s report because witness relied on a summary of the report to form his opinions). However, while both the direct examiner and the cross-examiner normally have great discretion to explore the factual basis for an expert’s opinion, some evidence upon which the expert relied in rendering his opinion may be inadmissible before the jury because of the danger the jury may improperly use those facts as substantive evidence which is addressed by Rule 705(b).  Brown and Rondon, supra at 760-761.

B. Rule 705(b). Voir Dire Examination of an Expert

In criminal cases, Rule 705(b) requires a voir dire examination outside the jury’s presence, upon request of the opponent, to determine the underlying facts or data of the expert’s opinion. Alba v. State, 905 S.W.2d 561 (Tex. Crim. App. 1995), cert. denied 516 U.S. 1077; Brook v. Brook, 865 S.W.2d 166 (Tex. App.–Corpus Christie 1993); Harris v. State, 133 S.W.3d 760 (Tex. App.–Texarkana 2004), pet. ref’d, habeas corpus denied, denial of post-conviction relief affirmed; Goss v. State, 826 S.W.2d 162 (Tex. Crim. App. 1992), cert. denied 509 U.S. 922 (because of mandatory nature of rule permitting defendant to conduct voir dire examination of State’s expert, the trial judge’s denial of timely and proper motion for such a hearing constitutes error). The voir dire examination under Rule 705(b) is supposed to be directed to the underlying facts or data upon which the expert’s opinion is based. Alba v. State, 905 S.W.2d 581 (Tex. Crim. App. 1995), cert. denied 516 U.S. 1077. It has been said that the purpose of the voir dire examination is two-fold: (1) it allows the defendant to determine the foundation of the expert’s opinion without the fear of eliciting inadmissible evidence in the jury’s presence, and (2) it may supply the defendant with sufficient ammunition to make a timely objection to the expert’s testimony on the ground that it lacks a sufficient basis for admissibility.  Shaw v. State, 329 S.W.3d 645 (Tex. App.– Houston [14th Dist.] 2010).

While the Rule 705(b) hearing is ostensibly for the opponent of the evidence to determine and explore the underlying facts and data that supports the expert’s opinion, it should be a vehicle by which the opponent may challenge the admissibility of the expert’s testimony by challenging the qualifications of the expert and the relevance and reliability of the expert testimony. The opponent should challenge the admissibility of the expert testimony and include all applicable legal grounds and should make the challenge outside the presence of the jury. However, an opponent’s objection to an expert’s qualifications is separate from a Rule 705(b) hearing, which is supposed to only explore the underlying facts or data of an expert’s opinion.  Jenkins v. State, 912 S.W.2d 783, 814 (Tex. Crim. App. 1995) (op. on reh’g) (it was harmless to deny Rule 705(b) hearing outside the jury’s presence because the defendant already had a copy of the witness’ report setting out the facts and data and the expert did not testify to damaging and inadmissible material). The opponent of expert testimony should seek to have the Rule 705 hearing well before trial. The opponent of the evidence should use such a hearing as an opportunity to subpoena the records of the expert to the hearing and all the expert’s underlying documentation in the case. Also, the opponent could serve a subpoena on the expert seeking production of the authorities, articles and publications relied on by the expert in rendering his opinion in this particular case. The opponent of the evidence should request that he be allowed to review all of the expert’s authorities before the Rule 705 hearing, or at least before the expert’s testimony at trial. The party seeking a hearing outside the presence of the jury should state all the purposes for which the opponent wants to examine the expert witness. Jenkins v. State, supra.

C. Rule 705(c). Admissibility of Opinion

Rule 705(c) makes the expert’s opinions inadmissible if the trial court finds that the expert does not have a sufficient factual basis for the opinion. While the inquiry under the Daubert/Kelly/Robinson line of cases focuses on the reliability and relevance of an expert’s scientific theory and methodology without regard for the conclusions, Rule 705(c) focuses on the specific factual data that supports the expert’s conclusions.  The issue here is not whether experts can reach reliable results on a certain issue, but whether the facts that the expert in the present case relied on were adequate to support a conclusion.”  Brown and Rondon, supra at p.763; Wolfe v. State, 509 S.W.3d 325, 335 (Tex. Crim. App. 2017); Hous. Unlimited, Inc. Metal Processing v. Mel Acres Ranch, 443 S.W.3d 820, 832-833 & n.11 (Tex. 2014); In the Commitment of Regaldo, 598 S.W.3d 736, 741 (Tex. App.-Amarillo 2020).

In Flowers v. State, 2002 WL 31247093 (Tex. App.–Dallas, pet. ref’d), the admission of testimony from sexual assault nurse examiner that in 80% to 85% of cases of sexual assault on children the physical examination of the victims is completely normal, was not an abuse of discretion in an aggravated sexual assault case. The nurse testified to the authors of some of the articles she relied upon in her testimony and there was no evidence in the record that the expert failed to provide the titles of the articles she relied on to defense counsel as she promised.

In Vela v. State, 209 S.W.3d 128 (Tex. Crim. App. 2006), that expert testimony from a certified legal nurse consultant that no rape occurred because no DNA evidence or physical evidence linked the defendant to the alleged rape, was inadmissible in a sexual assault trial. The court of appeals failed to conduct an adequate inquiry into the consultant’s qualifications, evaluate the reliability of the testimony and give proper deference to the trial judge’s ruling excluding the testimony, thus the judgment of the court of appeals was vacated and the case remanded. In Escamilla v. State, 334 S.W.3d 263 (Tex. App.–San Antonio 2010, pet. ref’d), the trial court erred when it allowed a SANE to testify that the quick dilation of the victim’s anus was consistent with sexual abuse because the testimony was not reliable as the witness could not elaborate to the extent to which the underlying scientific theory and technique were accepted as valid in the relevant scientific community, she made only vague references to the literature supporting her underlying scientific theory and technique, and she did not appear to understand the concept of the potential rate of error of the technique.

In Teczar v. State, 2008 WL 4602547, 2011 WL 1743756 (Tex. App.– Eastland, pet. ref’d), a clergy abuse victim who operated counseling services to clergy abuse victims, was not qualified to testify as an expert on the psychology and behavior of those who would commit child sex abuse because the witness had a lack of actual institutional instruction in the field, other than five-weekend seminars, and the witness’ testimony was not supported by evidence of any scientific theory, soft or otherwise. The witness was not qualified as an expert to advance conclusions, and the witness’s testimony about the defendant’s activities with him was remote in time and was character conformity evidence. 

D. Rule 705(d). When Otherwise Inadmissible Underlying Facts or Data May be Disclosed

“Rule 705(d) provides that the inadmissible facts or data on which the expert is reasonably relying will be excluded if their probative value in helping the jury evaluate the opinion is outweighed by their prejudicial effect. The balance is between the probative value of the admissible data to help the jury evaluate the reasonableness of the expert’s opinion and either, (1) the unfairly prejudicial effect of this inadmissible material on the opposing party or, (2) the likelihood that the jury may use this inadmissible data as substantive evidence for some other purpose. If the otherwise inadmissible facts and data supporting the expert’s opinion are disclosed to the jury, the opponent, upon a timely request, is entitled to an instruction restricting the jury’s consideration of that inadmissible data solely to its permissible explanatory purpose.”  Brown and Rondon, supra at p.765; Depena v. State, 148 S.W.3d 461, 470 n.10 (Tex. App.– Corpus Christi 2004, no pet.). The right to this limiting instruction would apply only when the underlying facts or data were otherwise inadmissible.

Trial courts may permit experts to give opinions, but not allow them to testify to all of the admissible facts that led to their conclusions.  Rule 705 does not give the proponent of the expert testimony the right to disclose all the facts and underlying data. First Southwest Lloyd’s Insurance Company v. MacDowell, 769 S.W.2d 954, 958 (Tex. App.–Texarkana 1989, writ denied). Thus, the trial judge has the discretion to limit the admission of such underlying inadmissible data under Rule 403 if it is unduly prejudicial, confusing, or misleading. Id. at 958.  An expert witness cannot be used as a conduit to put the party’s self-serving hearsay version of the facts before the jury. Davis v. State, 268 S.W.3d 683, 701-702 (Tex. App.–Ft. Worth 2008, pet. ref’d) (the trial court properly prohibited the defendant from asking the detective, as an expert witness, about statements that defendant had made to the detective; the defendant admitted that the value of the statements was not as an explanation or support for the detective’s expert opinion, but instead as substantive evidence to advance his own self-defense claim, a purpose that Rule 705(d) intends to prevent).

In Walck v. State, 943 S.W.2d 544, 545 (Tex. App.–Eastland 1997, pet. ref’d), the trial court did not err in barring the defendant’s expert from relating, on direct examination, the content of the interview between the defendant and the expert. The defendant claimed that under Rule 803(4), his expert could relate inadmissible hearsay on the defendant’s state of mind at the time of the offense because it was imperative to the expert’s opinion. The trial and the appellate court disagreed with that contention, concluding that the evidence was not admissible under Rule 803(4) because the expert did not examine the defendant for purposes of medical diagnosis or treatment, but instead conducted the evaluation to formulate an opinion about “sudden passion.” The court of appeals reasoned that the trial judge had the discretion to exclude the defendant’s self-serving out of court statements under Rule 705(d) because the danger that they would be used for an improper purpose outweighed any probative value they might have had in explaining the expert’s opinion. Id. at 545-546. While generally, an expert may testify to the facts underlying his or her opinion, if the underlying facts or data would otherwise be inadmissible, they may not be disclosed if their probative value is outweighed by their prejudicial effect. In the Commitment of Regalado, 598 S.W.3d 736, 742 (Tex. App.-Amarillo 2020). A limiting instruction may mitigate the prejudice of admitting testimony regarding the facts upon which the expert relied in admitting his or her opinion.  Such instruction should instruct the jury to not consider the testimony for its truth, but only as the basis of the opinion of the expert.  In the Commitment of Lares, 2020 WL 2441368, *5 (Tex. App.-San Antonio).

Rule 705(d)’s balancing test does not need to be conducted on the record. Davis v. State, 268 S.W.3d 683, 701 (Tex. App.–Ft. Worth 2008, pet. ref’d). Unlike under Rule 403, the unfairly prejudicial effect does not need to substantially outweigh the probative value before the underlying facts or data can be excluded. A preponderance of the evidence is sufficient. The balancing provision of Rule 705(d) is mandatory so that a trial judge must, upon a timely request, exclude any references to the inadmissible material if he determines that the prejudicial effect outweighs the probative value. Id.

E. Conclusion

Rule 705 substantially relies on cross-examination by the opponent to determine whether the expert testimony is admissible and to provide the trier of fact with all the necessary information needed to evaluate the testimony. In a criminal case, an opposing party (most often a defendant) is entitled to the Rule 705 hearing. So, the defense should seek a Rule 705 hearing since it is required that the court grant the hearing upon request.

Craig Jett
Craig Jett
Craig Jett is Of Counsel to Burleson, Pate & Gibson of Dallas. Mr. Jett has practiced law and been a member of TCDLA for 42 years. He has been a regular lecturer and author on criminal law matters for TCDLA, the State Bar of Texas, various local bar associations and other professional organizations. In his time with TCDLA Mr. Jett has chaired committees, including the Criminal Defense Lawyers Project; produced continuing legal education programs across the State; served on the Board of Directors; and held all of the officer positions, including being President for 2007-08. He has also served as Chair of the Criminal Justice Section of the State Bar of Texas in 2009-10, and President of the Dallas Criminal Defense Lawyers Association in 1994-95. He is currently serving on the Criminal Law Advisory Commission of the Texas Board of legal Specialization. He argued before the United States Supreme Court in Dixon v. United States in 2006.
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