Section 703.    Bases of Opinion Testimony by Experts

The facts or data in the particular case upon which an expert witness bases an opinion or inference may be those perceived by or made known to the witness at or before the hearing. These include (a) facts observed by the witness or otherwise in the witness’s direct personal knowledge; (b) evidence already in the record or which the parties represent will be presented during the course of the proceedings, which facts may be assumed to be true in questions put to the witness; and (c) facts or data not in evidence if the facts or data are independently admissible in evidence and are a permissible basis for an expert to consider in formulating an opinion.

NOTE

This section is derived from Department of Youth Servs. v. A Juvenile, 398 Mass. 516, 531, 499 N.E.2d 812, 820–821 (1986); LaClair v. Silberline Mfg. Co., 379 Mass. 21, 32, 393 N.E.2d 867, 874 (1979); and Commonwealth v. Russ, 232 Mass. 58, 73, 122 N.E. 176, 182 (1919). Massachusetts has not fully adopted Fed. R. Evid. 703, or Proposed Mass. R. Evid. 703, which would permit opinions based on inadmissible evidence if it is of a type reasonably relied upon by experts in the relevant field.

“When an expert provides the jury with an opinion regarding the facts of the case, that opinion must rest on a proper basis, else inadmissible evidence might enter in the guise of expert opinion. The expert must have knowledge of the particular facts from firsthand observation, or from a proper hypothetical question posed by counsel, or from unadmitted evidence that would nevertheless be admissible.”

Commonwealth v. Waite, 422 Mass. 792, 803, 665 N.E.2d 982, 990 (1996). See id. at 803–804, 665 N.E.2d at 990–991 (psychologist called by the defense in a murder trial could opine on the defendant’s mental impairment at the time of the offense based on the witness’s interview with the defendant five weeks after the killings, and the contents of police and medical records, but not on the basis of a psychiatrist’s earlier “preliminary diagnosis” that was not shown to be reliable and independently admissible). Accord Vassallo v. Baxter Healthcare Corp., 428 Mass. 1, 15–16, 696 N.E.2d 909, 919 (1998) (“The judge properly prevented the defendants’ experts [as well as the plaintiffs’ experts] from testifying on direct examination to the out-of-court opinions of other scientists in the absence of some specific exception to the hearsay rule [none was shown].”).

Regarding Section 703(b), unless the evidence is capable of only one interpretation, the question to the expert witness must refer to specific portions of the record. See Connor v. O’Donnell, 230 Mass. 39, 42, 119 N.E. 446, 447 (1918).

Regarding Section 703(c), in determining whether facts or data are independently admissible, it is not whether the forms in which such facts or data exist satisfy evidentiary requirements. Rather, the court will determine whether the underlying facts or data would potentially be admissible through appropriate witnesses. Such witnesses need not be immediately available in court to testify. See Commonwealth v. Markvart, 437 Mass. 331, 337–338, 771 N.E.2d 778, 783 (2002), citing Department of Youth Servs. v. A Juvenile, 398 Mass. at 531, 499 N.E.2d at 820–821.

Cross-Reference: Section 702, Testimony by Experts; Section 705, Disclosure of Facts or Data Underlying Expert Opinion.