Courts have historically struggled with whether to allow jurors to consider otherwise inadmissible evidence when an expert relies on the evidence. The Texas Rules of Evidence allow an expert witness to base an opinion on facts or data reasonably relied upon by experts in the particular field, and do not require the underlying facts or data to be admissible in evidence. If the underlying facts or data are otherwise inadmissible, should the jury be made aware of the facts or data, simply because the expert relied upon them? Courts in civil cases in Texas struggled with this issue before amendments to rule 705 in 1998.
In 1983, Texas adopted the Texas Rules of Civil Evidence, modeled after the Federal Rules of Evidence. The 1983 version of Texas rule 705 simply stated that, “The expert may testify in terms of opinion or inference and give his opinions therefor without prior disclosure of the underlying facts or data, unless the court requires otherwise,” and that “The expert may in any event be required to disclose the underlying facts or data on cross-examination.” The rule was silent on whether the expert could disclose otherwise inadmissible data during direct examination.
