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 court may,
however, disallow testimony in the form of an opinion or inference if the
underlying facts or data indicate lack of trustworthiness. [L 1980, c 164, pt
of §1; gen ch 1985]



 



RULE 703 COMMENTARY



 



  The first two sentences of this rule are identical with Fed.
R. Evid. 703 in its entirety.  The last sentence was added to clarify the
court's discretion to exclude untrustworthy opinions.



  The traditional view limits the facts or data upon which an
expert may base an inference or an opinion to those obtained upon firsthand
knowledge or to facts of record.  McCormick §14.  Characteristic examples of
expert testimony based upon firsthand knowledge are the testimony of a
physician, based on his medical examination of an individual, of a ballistics
expert, based upon his examination of a bullet, or of a handwriting analyst,
based upon his study of a specimen of handwriting.  The expert may become
conversant with facts of record either by being present during testimony or,
more characteristically, through their submission to him in the form of a
hypothetical question.



  Hawaii decisions appear to adhere to the limitations of the
traditional rule, see State v. Davis, 53 H. 582, 499 P.2d 663 (1972); Cozine v.
Hawaiian Catamaran, Ltd., 49 H. 77, 106, 412 P.2d 669, 687 (1966); Kawamoto v.
Yasutake, 49 H. 42, 410 P.2d 976 (1966).  In State v. Dillingham Corp., 60 H. 393,
411, 591 P.2d 1049, 1060 (1979), however, the court said:



In this
jurisdiction, we have taken a liberal view toward the admission of evidence
used to support an expert's opinion as to fair market value [of realty].... 
The factors considered and the extent of knowledge and reasoning of an
otherwise qualified appraiser are matters which go to the weight rather than
the competence of his testimony.



  Rule 703 allows opinions based on data not admissible in
evidence so long as "of a type reasonably relied upon by experts in the
particular field."  The Advisory Committee's Note to Fed. R. Evid. 703
points out:



[T]he rule is
designed to broaden the basis for expert opinions beyond that current in many
jurisdictions and to bring the judicial practice into line with the practice of
the experts themselves when not in court.  Thus a physician in his own practice
bases his diagnosis on information from numerous sources and of considerable
variety, including statements by patients and relatives, reports and opinions
from nurses, technicians and other doctors, hospital records, and X rays.  Most
of them are admissible in evidence, but only with the expenditure of
substantial time in producing and examining various authenticating witnesses. 
The physician makes life-and-death decisions in reliance upon them.  His
validation, expertly performed and subject to cross-examination, ought to
suffice for judicial purposes.



McCormick agrees:  "It is reasonable to assume that an
expert in a science is competent to judge the reliability of statements made to
him by other investigators or technicians."  McCormick §15.



  There are several safeguards against untrustworthy opinions. 
The facts or data must be established as reliable in the particular field. 
Therefore, concluded the Advisory Committee's Note to Fed. R. Evid. 703, a
court would not be justified in "admitting in evidence the opinion of an
'accidentologist' as to the point of impact in an automobile collision based on
statements of bystanders, since this requirement is not satisfied." 
Second, the present modification of the federal rules formulation provides
expressly for exclusion at the discretion of the court.  Finally, Rule 705
infra, allows the court at its discretion to require prior disclosure of facts
or data upon which an opinion or inference is based.



  A number of other jurisdictions have adopted a similar rule,
see, e.g., Cal. Evid. Code §801(b).



 



Case Notes



 



  Admissibility of novel scientific evidence discussed,
focusing on DNA profiling evidence.  73 H. 130, 828 P.2d 1274.



  Trial court did not abuse its discretion by excluding
proffered expert testimony on hedonic damages, where the proffered testimony
was based on willingness-to-pay approach.  77 H. 282, 884 P.2d 345.



  Trial court did not abuse its discretion in ruling that
psychiatrist's testimony regarding cause of [decedent's] death would assist the
trier of fact and that it was not untrustworthy or speculative.  78 H. 230, 891
P.2d 1022.



  No abuse of discretion in admitting expert testimony where
domestic violence expert provided relevant, specialized knowledge, unknown to
the average juror, and did not comment or otherwise offer opinion on the
credibility of any witness in the case.  80 H. 172, 907 P.2d 758.



  Rule 705 and this rule do not foreclose expert witness from
revealing, during direct examination, contents of material reasonably relied
upon, though hearsay, to explain basis of opinion, provided expert actually
relied on material as basis of opinion, materials are of type reasonably relied
upon by experts in field in forming opinions on subject, and materials do not
otherwise indicate lack of trustworthiness.  85 H. 336, 944 P.2d 1279.



  Trial court did not abuse its discretion in allowing expert
witness' testimony regarding plaintiff's injuries where, inter alia, trial
court determined that information gained by expert witness at a lecture was of
the type reasonably relied upon by experts in expert witness' field in forming
opinions about back injuries.  10 H. App. 298, 869 P.2d 1352.



  Trial court did not abuse its discretion in allowing
defendant's expert witness to testify where expert admitted that expert had not
personally examined plaintiff.  Expert based opinions on medical records,
clinical notes, etc. of doctors; all of these were admitted into evidence
during the trial; in addition, expert referred to photographs that were
received into evidence.  77 H. 209 (App.), 881 P.2d 1277.



  Order of expert witness' testimony immaterial where expert
gave testimony after reviewing facts made known to expert before trial and
facts were subsequently introduced into evidence.  86 H. 93 (App.), 947 P.2d
961.