MENS REA: MRE 703, A Study in Fairness

BY Michael J. Nichols

The Nichols Law Firm PLLC

The United States Supreme Court is considering the latest case to test the Crawford doctrine and its renewed vitality of the confrontation clause of the 6th Amendment. The Court heard oral arguments last fall in Williams v Illinois. The issue in Williams is whether a supervisor at a laboratory can testify about a report by another analyst if the report is not admitted into evidence. Some of the justices posed questions at oral arguments about how this procedure would not offend 1. hearsay or 2. the relevancy test.

Those of us who practice in Michigan courts understand that the inadmissibility of this statement is not even a close call under Michigan Rule of Evidence 703. The rule is the companion rule of MRE 702. The key component of the rule is as follows: "... the facts or data on which the expert relies shall be in evidence." The rule was the product of a committee formed in 2002 and led by Wayne County Circuit Judge William Giovan (retired).

The problem that the committee sought to solve was the admission of "backdoor hearsay" through the testimony of expert witnesses. Before the advent of MRE 703, experts could simply incorporate hearsay testimony by citing to some study, exhibit or statement that was neither admitted into evidence nor admissible. Judge Giovan wrote to the Supreme Court as chair of the committee that:

"Under current law, litigants can too easily evade an exclusionary rule of evidence by having an expert rely on inadmissible evidence in forming an opinion. The inadmissible information is then disclosed to the jury in the guise of the expert's basis." (Advisory Committee Report, January 28, 2003)

Amazingly, there was outcry from many corners of the state when MRE 703 was revised. The rule formerly read that an expert could render an opinion based upon hearsay at the discretion of the trial court:

The facts or data in the particular case upon which an expert bases an opinion or inference may be those perceived by or made known to the expert at or before the hearing. The court may require that underlying facts or data essential to an opinion or inference be in evidence.

The former rule was fairly similar to the federal rule, which is similar to the rule in most states:

The facts or data in the particular case upon which an expert bases an opinion or inference may be those perceived by or made known to the expert at or before the hearing. If of a type reasonably relied upon by experts in the particular field in forming opinions or inferences upon the subject, the facts or data need not be admissible in evidence.

When I think about the objections to Michigan's rule requiring that the facts or data in the particular case upon which an expert bases an opinion to be in evidence, I think about this dynamic: the rule reinforces what I call "prong 3" of the primary rule of expert testimony. Under MRE 702, the court must exclude expert testimony that does not: 1) have sufficient facts or data; 2) have reliable principles and methods and 3) result from the application of the principles and methods reliably to the facts of the case.

That brings me to the connection with the Williams v Illinois case. The fact that the government tried to admit the testimony about the lab analysis without admitting the report from the lab analyst would be an easy objection to sustain for a Michigan judge. However, it apparently was not so in Illinois. The prosecutors tried to admit the lab supervisor testimony also despite the Melendez-Diaz and Bullcoming doctrine that held that the lab analyst's report is testimonial for purposes of confrontation and the analyst who conducted the analysis must be present.

As our Michigan expert testimony rule approaches its 10th anniversary, MRE 703 will be the focus of a presentation at the American Academy of Forensic Sciences in February in Atlanta. The AAFS educational committee accepted the abstract on this unique rule that requires the expert's facts or data to be in evidence. With the SCOTUS granting certiorari in the Williams case, the AAFS decision to examine MRE 703 as a "study in fairness" appears to be a study in good timing.


Mike Nichols is the Michigan delegate to the National College for DUI Defense. He will present "MRE 703 a study in fairness"at 10:20 am EDT at the Hyatt in Atlanta before the jurisprudence section of the AAFS annual conference on Feb. 23, 2012. Nichols is co-chair of the ICBA Criminal Law Section, a member of the NACDL and CDAM.

Published: Mon, Feb 13, 2012