The Michigan Supreme Court, acting after two years of deliberation and public comment, has amended Rule 703 of the Michigan Rules of Evidence, governing expert testimony, to require that facts upon which an expert opinion is based be in evidence. The change is effective September 1, 2003. Under the current version of the rule, an expert may include in the factual basis of his opinion information which is disclosed to him, but the information need not be admitted or admissible into evidence.
We first discussed this proposal last July, and noted the alternative recommendation by James K. Robinson to amend the rule to follow the Federal rule, which allows the expert to utilize non-admitted facts if they are of the kind usually relied upon by experts in the field in question. The Court rejected this alternative, and a couple of others that had been suggested.
The primary abuse argued by those who urged the amendment was the practice of using this rule to disclose otherwise inadmissible evidence by having the expert witness use it as part of the factual basis supporting his opinion.
It should be noted that this issue is a recurring sore point in Federal practice, and the issue led to the amendment of the Federal rule in December 2000, to emphasize that the opinion and not the supporting information is what is admitted into evidence. See the Proposed Advisory Committee note on this issue, and its recitation of the diverging Federal cases on the issue of whether the use of the supporting information requires a limiting instruction.
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