A Statute Overtaken by Time: The Need to Re-Interpret Federal Rule of Evidence 803(8)(a)(iii) Governing the Admissibility of Expert Opinions in Government Investigative Reports
44 Pages Posted: 11 Feb 2014
Date Written: February 10, 2014
The thesis of this article is that the current interpretation of Federal Rule of Evidence 803(8)(a)(iii) allows the proponent of an expert opinion in hearsay form to flout Daubert and expose the jury to unreliable expert testimony. When the Federal Rules took effect in 1975, the statutory scheme included both Rule 702 and Rule 803(8)(C), the predecessor to restyled Rule 803(8)(a)(iii). The latter statute permits the introduction of trustworthy "factual findings" in government investigative reports. At that time the majority of jurisdictions, including most federal courts, followed the traditional general acceptance test for the admissibility of expert testimony, and the courts interpreted Rule 702 as permitting the courts to adhere to that standard. In fact, government investigators regularly employ generally accepted methodologies. On that assumption, the courts developed the view that if a government factual finding is trustworthy enough to satisfy Rule 803(8)(a)(iii), there is no need for the proponent to make a separate showing that the finding passes muster under Rule 702.
However, two 1993 developments have overtaken that view. To begin with, in that year the Supreme Court rendered Daubert. Daubert jettisoned the traditional general acceptance test and held that the proponent of expert testimony must show that the testimony qualifies as reliable "scientific knowledge" within the meaning of that expression in Rule 702. The Court explained that "knowledge" requires more than the expert's subjective belief and that "scientific" mandates that the proponent demonstrate that there is adequate validation for the opinion–supporting empirical reasoning and data. Although the Court stated that the judge may consider the general acceptance of the expert's theory in evaluating reliability, standing alone general acceptance is an inadequate foundation. Thus, even if the government investigator utilized a widely approved methodology, the opinion may be inadmissible under 702. The Daubert mode of analysis not only deviates from the traditional general acceptance test for expert testimony; Daubert’s reliability analysis also differs fundamentally from the trustworthiness analysis under Rule 803(8)(a)(iii). While the 702 reliability analysis places a premium on objective indicia of the theory's validity, the latter focuses on classic hearsay factors such as the subjective sincerity of the delcarant.
Another 1993 development, an amendment to Federal Rule of Civil Procedure 26, intensified the proponent’s incentive to offer a questionable opinion in hearsay form to evade Daubert. That amendment introduced mandatory pre-discovery disclosures. The mandatory disclosures include a report comprehensively detailing the analysis of any expert witness whom the litigant contemplates calling at trial. However, the disclosure requirements apply only when the proponent intends to call the expert as a witness – not when the proponent proffers the opinion in hearsay form. Considered together, these two 1993 development necessitate the re-interpretation of Rule 803(8).
The article concludes that the courts should go to the length of demanding that the proponent of an investigative finding lay a foundation demonstrating reliability under Rule 702. The courts ought to abandon the view that the proponent's compliance with Rule 803(8)(a)(iii) automatically or presumptively satisfies Rule 702.
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