Briana Denney, Esq. of Newman & Denney P.C Briana Denney, Esq. of Newman & Denney P.C. E VIDENTIARY I SSUES R ELATING TO F ORENSIC R EPORTS

Getting the Report into Evidence 1. Lay a foundation to introduce the expert report like you would with any expert report. 2. Stipulate with counsel. 3. The court may use the report to substitute for direct testimony at the trial. However, the expert must be present and available for cross examination.

What should your preference be? That the court uses the report as a substitute for direct testimony at the trial. Therefore, you are able to cross examine the expert. That the court uses the report as a substitute for direct testimony at the trial. Therefore, you are able to cross examine the expert. Due to the hearsay in the report, the court cannot rely on the opinion of the expert and therefore, the report, without the presence of the expert, unless stipulated to by the parties Due to the hearsay in the report, the court cannot rely on the opinion of the expert and therefore, the report, without the presence of the expert, unless stipulated to by the parties.

An expert may base opinion evidence upon: 1. Personal knowledge of the facts upon which the opinion rests (i.e. the demeanor of the parties during interviews). 2. Where the expert does not have personal knowledge, facts and material in evidence, real or testimonial; 3. Out-of-court material provided that the out-of-court material is derived from a witness subject to full cross- examination (i.e. the parties); 4. The Professional Reliability Exception: An expert may rely on out-of-court material if it is of a kind accepted in the profession as reliable in forming an opinion.

The Professional Reliability Exception: Testimony of the express content of the out- of-court material is inadmissible, but, provided there is proof of reliability of the out-of-court material, testimony regarding reliance upon the out-of-court material to form an opinion may be received in evidence. Testimony of the express content of the out- of-court material is inadmissible, but, provided there is proof of reliability of the out-of-court material, testimony regarding reliance upon the out-of-court material to form an opinion may be received in evidence.

What does this mean? An expert may state that he/she relied upon information provided the expert proves that the information is reliable, but that the content of the material is not admissible. Therefore, the expert’s opinion is admissible if he/she formed the opinion upon out-of-court material which is reliable. The expert’s opinion is inadmissible if he/she formed the opinion on out-of-court material which is not reliable.

What is reliable and how is reliability proven? In order to use out-of-court material accepted in the profession as reliable in forming an opinion, evidence must establish the reliability of the out- of-court material. Not reliable: discussions with people who are not available to testify, even if those people are professionals. o Plaintiff sought to introduce an expert opinion based in part on the expert’s discussion with a radiologist: this was not reliable. o The sources of the expert’s opinion were family members, which was found unreliable.

Reliable: scientific tests not used for the truthfulness of the test Reliable: scientific tests not used for the truthfulness of the test o An algorithm which was a portion of clinical guidelines published by the American Heart Association that the Defendant physician testified to following in his practice to evaluate patients was found reliable regarding the expert’s opinion. The Court deemed the testimony not be used for the veracity of the test, but the process in which the doctor examined patients.

How to cure the problem that an expert based the opinion on non-reliable evidence? If the information the forensic based his/her opinion on is not reliable and accepted within the profession as reliable, then the opinions of the expert and the report are not admissible. The only cure is proof of reliability of the information by cross-examination of the collateral. Another argument regarding hearsay information which was relied upon forming an opinion: Another argument regarding hearsay information which was relied upon forming an opinion: The information is corroborative with other, reliable information in the report.

Examples of arguments in the Jones v. Jones matter: If you wanted to exclude the expert’s opinion and therefore, the report  An argument would be made that the expert’s opinion was based on unreliable information if the sixth grade classroom teacher, Ms. Jones’ psychiatrist and Laura’s neuropsychiatrist were not available to testify.  Such an argument must be made by questioning the expert before admitting the report into evidence. You were therefore not want the report to be a substitute for direct testimony at the trial OR to stipulate with counsel that the report can be admitted into evidence.

If you wanted to include the expert’s opinion and therefore, the report, you would argue about the 3 rd party sources: If you wanted to include the expert’s opinion and therefore, the report, you would argue about the 3 rd party sources: 1. The information is reliable (not a strong argument where, as here, nearly all the information is verbal) 2. Call the third party witnesses to testify 3. By questioning the expert about whether the 3 rd party sources were relied upon in forming his/her opinion and/or whether the 3 rd party sources was corroborative to the admissible information from the parties.