Timothy M. Tippins ()
Family law attorneys rarely try a case without encountering expert testimony with respect to one issue or another. Whenever an expert testifies, many issues are presented, but none is more critical than the evidentiary integrity of the “basis” for the expert’s opinion. Specifically, when the expert relies upon out-of-court statements derived from interviews or from the review of documents, the evidentiary doctrine of expert testimony intersects directly with the core evidentiary principle forbidding hearsay evidence. This intersection is known as the “professional reliability hearsay basis,” and it presents one of the thorniest problems in the law of evidence. The Court of Appeals, in State v. Floyd Y.,1 confronted this Gordian knot of evidence law; the resulting split decisions underscore both the convolution of the “basis hearsay”2 issue and the futility of efforts to resolve the central conundrum that it presents.
Floyd Y. was a convicted sex offender facing involuntary civil confinement following his prison sentence pursuant to Mental Hygiene Law (MHL) Article 10. The state’s experts relied upon out-of-court statements consisting of victim allegations of previous acts of sexual misconduct. Significantly, they were permitted to disclose the content of those allegations to the jury even though none of the out-of-court declarants testified.3
The Court of Appeals was unanimous in its decision that reversal was required but dramatically divided on the rationale. The majority bypassed the professionally reliable hearsay issue and instead hinged its decision on constitutional grounds applicable to MHL Article 10 proceedings:
In this case, we are asked to consider whether, and to what extent, a court may admit hearsay evidence when it serves as the underlying basis for an expert’s opinion in an Article 10 proceeding. The Due Process Clause protects against the admission of unreliable hearsay evidence, where such hearsay is more prejudicial than probative, regardless of whether it serves as the basis for an expert’s properly proffered opinion testimony.4
As the final clause of the excerpted language indicates, the majority was not addressing the professionally reliable predicate for expert testimony. Indeed, it did not direct its analysis to expert testimony at all. It instead seems to have fashioned a new reliability-based hearsay exception applicable only to MHL Article 10 proceedings.5 Judge Robert S. Smith’s concurrence specifically underscored this point when it observed that the court had, in People v. Nieves,6 “rejected the idea of recognizing an ‘amorphous’ reliability exception” to the rule against hearsay.7
Nieves indeed made clear that to be admissible, out-of-court statements must fit “within one of the exceptions to the hearsay rule.”8 Yet, without reference to any specific hearsay exception and without analysis of the professional reliability predicate, the majority in Floyd Y. simply examined each of the out-of-court statements in issue and rendered its own assessment as to the reliability of each. Because it found two of the several out-of-court accusations put before the jury to be “unreliable,” it held due process under the Fifth and 14th Amendments mandated reversal.
In the concurrence, Judge Smith underscored that the majority said little about either the hearsay rule or the professional reliability predicate, nor did it cite any of the pertinent authorities related to those issues:
Rather, it seems to create a special rule for cases brought against detained sex offenders under Article 10 of the Mental Hygiene Law, endorsing a ‘flexible approach that allows the admission of hearsay but requires courts to make an independent reliability assessment.’9
In contrast, the concurring opinion does address the issues in terms of the professional reliability predicate and contributes richly to its understanding. It based reversal forthrightly on the hearsay rule without reaching constitutional issues. Succinctly put, it held that hearsay is forbidden unless it fits an established exception. The basis hearsay in question did not fit any such exception. Thus, it was inadmissible.
Not a Hearsay Exception
It is important to underscore here that, notwithstanding some confusing language in Floyd Y., the professional hearsay predicate is not an exception to the rule against hearsay. As fashioned under the Federal Rules of Evidence,10 as well as state court decisions, it merely established an additional permissible predicate for an expert’s opinion. If one insists upon viewing it as an exception to anything, it is an exception to the common law Keough rule11 that strictly confined experts to reliance upon personal knowledge and facts in evidence. The professional reliability predicate was ushered into criminal jurisprudence in People v. Sugden12 in 1974. A decade later the court embraced a stricter variation of it for civil cases in Hambsch v. New York City Transit Authority.13 On this score, Judge Smith notes:
In general, exceptions to the prohibition on hearsay have been recognized only when the hearsay fits within a class of statements (e.g., excited utterances, business records, dying declarations) in which the risk of error or [willful] misrepresentation—and hence the need for cross-examination of the declarant—is relatively small. But there is nothing about basis hearsay that makes it inherently trustworthy. And the authorities confirm the conclusion that this reasoning suggests. Basis hearsay, when offered by the proponent of the expert’s testimony, is generally considered inadmissible.14
In making this point Judge Smith quoted the Appellate Division, Second Department’s excellent decision in Wagman v. Bradshaw:15 “[W]hile the expert witness’s testimony of reliance upon out-of-court material to form an opinion may be received in evidence, provided there is proof of reliability, testimony as to the express contents of the out-of-court material is inadmissible.”
When experts rely upon hearsay, two questions arise: (1) Does the out-of-court material qualify under the professional hearsay predicate so that the resulting opinion is not rendered inadmissible? and (2) If it does so qualify may the expert inform the fact-finder of the hearsay content?
Once the court determines that the out-of-court material is sufficiently reliable to serve as a proper predicate for the expert’s conclusion, the only thing that has been decided is that the opinion is not inadmissible because of that reliance. The basis hearsay, however, remains inadmissible. The question then becomes whether, once predicate reliability is established, may the content of the inadmissible out-of-court statements be disclosed to the fact-finder?
This presents a true conundrum. If the expert is allowed to disclose the content of the inadmissible evidence upon which he or she has relied, the expert becomes a “conduit” of hearsay.16 On the other hand, the preclusion alternative embraced by the concurrence in Floyd Y., forbidding disclosure of the basis hearsay, itself does violence to core evidentiary doctrine pertaining to the role of the fact-finder in evaluating expert testimony. The court long ago made that very point in People v. Strait:17
The witness was an expert on the diseases of the mind, but he was not an expert on determining the facts, where such facts had to be obtained from the statements of others. It was essential that the jury should be informed as to the facts upon which the expert based his conclusions in order to determine whether they were well founded.18
Simply stated, the conundrum is this: How can the fact-finder intelligently assess the reliability of a conclusion without knowing each and every premise underlying that conclusion? Without knowing all of the premises of the opinion the fact-finder is reduced to blind speculation in any effort to assess its reliability. The fact-finder is forced into the intellectually untenable position of evaluating the expert’s conclusion on the basis of the expert’s say-so. Under such circumstances, the impressiveness of the witness’ credentials and his or her presentational flair may carry more weight than actual reliability. This would, of course, cast us back to the bad old authoritarian days when “ipse dixit” was king, a sad state of affairs that the U.S. Supreme Court has rightly declared to be a relic of a bygone era.19
No Viable Middle Course
In opting in the opposite direction, to wit, allowing most of the hearsay content to be disclosed, the majority did so largely for the very reason articulated in People v. Strait,20 declaring in Floyd Y. that “admission of the hearsay basis is crucial for juries to understand and evaluate an expert’s opinion.”21
Fact-finders in Article 10 trials cannot comprehend or evaluate the testimony of an expert without knowing how and on what basis the expert formed an opinion.22
The majority justified its choice of the disclosure option by declaring its faith in the well-worn myth that “basis hearsay does not come into evidence for its truth, but rather to assist the fact-finder with its essential Article 10 task of evaluating the experts’ opinions.” Judge Smith cogently refutes this too-often invoked fairy tale:
The majority says that ‘basis hearsay does not come into evidence for its truth,’ but never explains how the victims’ statements in this case could possibly bolster the state’s experts’ opinions if the jury did not accept the statements as true. Nor is it clear why, if the hearsay in this case was not admitted for its truth, the majority is so concerned with whether it is reliable.23
Judge Smith’s point is exactly correct. Unless the fact-finder determines whether the basis hearsay is true or false it cannot assist them in assessing the expert’s conclusions.
Judge Smith’s reputation for prodigious intellect is as well-known as it is well-deserved. Yet, in the final analysis, even he had to make the Hobson’s choice between two undesirable options that the professional reliability predicate forces upon the court. Either make the expert an evidentiary alchemist who transmutes inadmissible hearsay into admissible evidence or deny the fact-finder the information essential to evaluate the expert’s opinion. There is no viable third option. Like the Gordian knot, this conundrum cannot be disentangled. It needs to be severed—fully, cleanly, and finally.
The common law Keough rule—enforced by the mandatory hypothetical question—embodied tremendous evidentiary wisdom. It kept out hearsay and it required disclosure to the fact-finder of every predicate assumption underlying the opinion. All was well until the professional reliability predicate swept that wisdom away some four decades ago. The only goal served by allowing basis hearsay is procedural expediency by dispensing with the need to call predicate witnesses. Floyd Y. is a stellar example of how high a price is exacted for that perceived expediency, a price paid in the coin of sacrificing evidentiary and procedural integrity. There is really only one intellectually sound resolution of the conundrum created by the professional reliability predicate; it should be relegated to a well-deserved niche in jurisprudential oblivion. The courts should return to the Keough rule.
Timothy M. Tippins is an adjunct professor at Albany Law School and is on the faculty of the American Academy of Forensic Psychology.
1. 22 N.Y.3d 95, 2 N.E.3d 204, 979 N.Y.S.2d 240 (2013).
2. “Basis hearsay” is a term introduced to New York jurisprudence for the first time in theFloyd Y.decision. It refers to the out-of-court statements upon which the expert relied as part of the basis for the opinion proffered.
3. For a fuller recitation of the facts, see Tippins, T.M., “Predicate Perplexity: The Case of ‘Floyd Y.’,” NYLJ, Jan. 10, 2014; see also, Hutter, M.J., “‘Floyd Y.’: The Professional Reliability Basis for Expert Opinion,” NYLJ, Dec. 5, 2013.
4. 22 N.Y.3d 95, 98, 2 N.E.3d 204, 979 N.Y.S.2d 240 (2013).
5. State v. Germano, 42 Misc.3d 1220(A), Slip Copy, 2014 WL 369799 (Sup.Ct., Dutchess Co., Forman, J., 2014).
6. People v. Nieves, 67 N.Y.2d 125, 131, 492 N.E.2d 109, 501 N.Y.S.2d 1 (1986).
7. 22 N.Y.3d 95, 117, 2 N.E.3d 204, 979 N.Y.S.2d 240 (2013).
8. People v. Nieves, 67 N.Y.2d 125, 131, 492 N.E.2d 109, 501 N.Y.S.2d 1 (1986).
9. 22 N.Y.3d 95, 116, 2 N.E.3d 204, 979 N.Y.S.2d 240 (2013).
10. FRE 703; People v. Sugden, 35 NY2d 453, 363 N.Y.S.2d 923 (1974); Hambsch v. New York City Transit Authority, 63 NY2d 723, 480 N.Y.S.2d 195 (1984).
11. People v. Keough, 276 NY 141, 11 NE2d 570 (1932).
12. People v. Sugden, 35 NY2d 453, 363 N.Y.S.2d 923 (1974).
13. Hambsch v. New York City Transit Authority, 63 NY2d 723, 480 N.Y.S.2d 195 (1984).
14. 22 N.Y.3d 95, 112-113, 2 N.E.3d 204, 979 N.Y.S.2d 240 (2013).
15. 292 A.D.2d 84, 85–86, 739 N.Y.S.2d 421 (2d Dept. 2002).
16. People v. Goldstein, 6 N.Y.3d 119, 843 N.E.2d 727, 810 N.Y.S.2d 100 (2005); Hinlicky v. Dreyfuss, 6 NY3d 636, 848 N.E.2d 1285, 815 N.Y.S.2d 908 .
17. 2 E.H. Smith 566, 148 N.Y. 566, 42 N.E. 1045 (1896).
18. 2 E.H. Smith 566, 570, 148 N.Y. 566, 42 N.E. 1045 (1896) [emphasis added].
19. General Electric Co. v. Joiner, 522 U.S. 136, 146, 118 S.Ct. 512 (1997).
20. 2 E.H. Smith 566, 148 N.Y. 566, 42 N.E. 1045 (1896).
21. 22 N.Y.3d 95, 107, 2 N.E.3d 204, 979 N.Y.S.2d 240 (2013).
22. 22 N.Y.3d 95, 107, 2 N.E.3d 204, 979 N.Y.S.2d 240 (2013).
23. 22 N.Y.3d 95, 117, 2 N.E.3d 204, 979 N.Y.S.2d 240 (2013).