Federal Rule of Evidence 703: The Back Door and the Confrontation Clause, Ten Years Later

November 1, 2011

Federal Rule of Evidence 703 allows experts to form opinions using information that is not admitted at trial, and even on evidence that is inadmissible. In 2000, Rule 703 was amended to emphasize that it did not serve as an exception to the other rules of evidence. When experts rely on inadmissible evidence, the evidence can only be disclosed for the limited purpose of assisting the jury to evaluate the expert’s opinion, and only if the probative value of the evidence substantially outweighs its prejudicial effect. This Note reviews the application of Rule 703 before and after the 2000 amendment. It finds that disclosure of inadmissible evidence should still be expected in a substantial number of cases, but nevertheless concludes that the compromise approach struck by amended Rule 703 is largely correct. Courts should, however, weigh the strong possibility that limiting instructions under Rule 703 will often be ineffective (and logically impossible), and reduce disclosure accordingly.

This Note also considers Rule 703’s intersection with recent changes in the U.S. Supreme Court’s Confrontation Clause jurisprudence. It argues that, although Rule 703 allows expert reliance on inadmissible evidence, the compromises struck by Rule 703 should not be allowed to mask Confrontation Clause violations. Expert disclosure of testimonial hearsay basis evidence should be understood as a Confrontation Clause violation. Evaluating the expert’s testimony to see if it includes an independent opinion, as suggested in some recent opinions, does not solve the problem. An expert can both provide an independent opinion and convey testimonial hearsay in violation of the Confrontation Clause.

November 2011

No. 2