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ARE 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.

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). 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. 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).