Whenever an expert testifies one of the most crucial issues is whether his or her opinion rests upon a permissible basis. Evidence law permits certain types of bases and disallows others. If the expert runs afoul of the rules, the opinion is inadmissible. One permissible basis is the so-called “professional hearsay” predicate. Hearsay reliance presents two issues: First, does the reliance on hearsay render the opinion inadmissible? Second, assuming that the opinion is admissible can the expert inform the fact-finder of the content of the out-of-court statements upon which the witness relied? The matrimonial practitioner confronts these issues at every turn when such experts as business valuators and forensic custody evaluators take the stand.
A bit over seven years ago it was suggested in this column that the Court of Appeals seemed to be inviting a case that would offer them the opportunity to address the second of these issues.1 In State v. Floyd Y.2 the court found such a case. The judges rolled up their sleeves and went to work in an effort to unravel what might well be called the Gordian knot of evidence doctrine. The complexity of the issues presented finds testament in the fact that the court was unable to speak in a single voice. There is a five-judge majority opinion and a two-judge concurrence. The opinions are lengthy and labyrinthine. As will be seen, the majority opinion is particularly opaque and does more to confuse than to clarify the issues. The concurrence comes closer to the mark but itself comes up a bit short.
