Proposed amendment of Rule 703 of the Michigan Rules of Evidence
The Michigan Supreme Court is grappling with a proposed amendment to Rule 703 of the Michigan Rules of Evidence. The current rule states:
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. The court may require that underlying facts or data essential to an opinion or inference be in evidence.
This is different from the Federal Rule 703, which is followed in many other states. The Federal Rule reads:
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.
The Michigan rule implies what the Federal rule explicitly states -- that the facts or data need not be admissible or in evidence -- but it imposes no limit on what can be disclosed to the jury under its rule.
The proposal is to change the rule to one of two amended versions. The first reads:
Rule 703 Bases of Opinion Testimony by Experts
[Alternative A]
The facts or data in the particular case upon which an expert bases an opinion or inference shall be in evidence. This rule does not restrict the discretion of the court to receive expert opinion testimony subject to the condition that the factual bases of the opinion be admitted in evidence thereafter.
[Alternative B]
(a) Except as otherwise provided in subrule (b), the facts or data in the particular case upon which an expert bases an opinion or inference must be admissible and admitted in evidence.
(b) If the court finds that the proponent of an expert opinion or inference has shown that there is no good-faith basis for contesting the truth or accuracy of specified inadmissible or unadmitted facts or data in the particular case, the court may admit an expert opinion or inference that is based on those facts or data. The proponent may not disclose the inadmissible or unadmitted facts or data to a jury. If the court is the finder of fact, the court may consider those facts or data only for the purpose of determining whether the required threshold is established.
Alternative A was the original amendment proposed in 1999 by the Advisory Committee on the Rules of Evidence. Alternative B is a new suggested modification.
Former chairman of the rules committee (and former State Bar President, and former U.S. Attorney) James K. Robinson, currently in practice in Washington but a person whose views still command a great deal of respect in this state, has written to the Supreme Court opposing both of these proposed alternatives and urging instead that the Federal rule be adopted in Michigan. (At present there is no link that can be provided, but we will add one when the text of the letter becomes available.)
This alternative, however, does not alleviate some of the problems. As stated in a letter to the Court by Wayne Circuit Judge William Giovan, current Chair of the Committee, in his letter to the Court (PDF format):
"Subsequent experience demonstrated that both the federal and Michigan formulae for identifying the kind of evidence that didn’t have to be proved to support an opinion came to grief. In the federal jurisdiction what experts 'reasonably rely upon' was such an expansive standard that it came to include almost anything, including, for example, street talk reported on the stand by policemen in criminal cases."
There are a number of arguments for and against the proposal to amend the rule. The objection to practice under the current rule is that it has been sorely abused by attorneys who use the opening it provides to inject otherwise wholly inadmissible information into the testimony heard by the jury, in the guise of "providing the factual background" for the opinion of the witness.
Those of us who try cases in the Michigan courts have seen this in action. Indeed, we have developed many strategies for using this rule to our advantage whenever possible. In many cases, the rule is simply a shortcut, making it unnecessary to call witnesses who may be unavailable or for whom the considerations of cost and convenience militate against offering their testimony in court. In many others, though, the rule allows us to get information before the jury which would never be admitted by the court if offered through the testimony of a live witness.
Although the current wording of the rule provides that the court, in the exercise of its discretion, may require that the information be in evidence, many courts either cannot or will not make that decision, with the result that in many cases everything comes in wholesale. Says Judge Giovan:
"The Michigan rule, on the other hand, affords no specific standard for the judge, and the practice today is that the court’s discretion is neither invoked or exercised, with the result that, not only is the expert opinion received, but the inadmissible foundation evidence is itself disclosed, contrary to the original intent of both rules."
Query: Is the laziness or lack of mental acuity of trial judges sufficient reason to change the court rules to accommodate them?
Judge Giovan's letter shows that he continues to favor Alternative A because, in his words, "Rule 703 was a bad idea in the first place":
"Originating with the laudable goal of eliminating petty foundation objections to opinion testimony, it resulted in the wholesale destruction of the hearsay rule in cases involving expert testimony. For the sake of nothing more than procedural convenience, it replaced a time-honored bright line foundation test for expert opinion with a standardless foundation requirement, so undefined that it is never used."
It also shows that he is getting somewhat exasperated by the fact that his proposed amendment is still opposed in many quarters:
"The adoption of Alternative B will not mollify intransigent objections to the amendment of Rule 703. By now it seems evident that there is a core of those who would not tolerate any modification of Rule 703, notwithstanding that (a) the federal rule has already been amended, (b) many of the difficulties purportedly resulting from an amendment are nonexistent because statutory exceptions already enacted, and (c) legitimate concerns are addressed by the proposed amendments to Rule 1101. All that is left, then, is the resistance of those who insist on retaining the practice of having the rights of litigants determined on the basis of facts that are never proved. Accordingly, Alternative B should not be adopted solely because we cannot quite get ourselves to dispose of the last vestige of the mistake wrought by Rule 703."
10:08:37 AM 
|
