Copyright (c) 1994 Marquette Law Review
Marquette Law Review
COMMENT: WHAT IS THE STATUS OF "INADMISSIBLE" BASES OF EXPERT TESTIMONY?
77 Marq. L. Rev. 531
Roberta N. Buratti
The Federal Rules of Evidence have broadened the scope of expert testimony. However, the departure from the common-law tradition has created ambiguity in the application of some of the federal rules. This Comment analyzes the application of Federal Rule of Evidence 703 1 and its Wisconsin counterpart, section 907.03 of the Wisconsin Statutes. 2
Rule 703 permits an expert to base an opinion on inadmissible data "if of a type reasonably relied upon by experts in the particular field." 3 Courts have, however, interpreted "reasonable reliance" in different ways. Moreover, highly conflicting opinions exist as to how courts should treat the underlying inadmissible data.
This Comment begins with a brief look at the common-law practice preceding Rule 703, as well as the extensive use of expert testimony today. The determination of reasonable reliance and the treatment of inadmissible bases are then discussed, focusing on Wisconsin's application of section 907.03. Finally, a framework for future application of section 907.03 is presented.
II. Common-Law Background
At common law, expert witnesses were permitted to state their opinions based on firsthand knowledge of the facts or based on facts in the trial record. 4 When an expert based her opinion on facts in the trial record, the expert either attended the trial while witnesses testified or was asked a hypothetical question based on the evidence that had been, or would be, introduced at the trial. 5 Consequently, experts were al- lowed to formulate opinions based only on ...
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