Section 705.    Disclosure of Facts or Data Underlying Expert Opinion

The expert may testify in terms of opinion or inference and give reasons therefor without prior disclosure of the underlying facts or data, unless the court requires otherwise. The expert may in any event be required to disclose the underlying facts or data on cross-examination.

NOTE

This section is taken nearly verbatim from Proposed Mass. R. Evid. 705, which the Supreme Judicial Court adopted in Department of Youth Servs. v. A Juvenile, 398 Mass. 516, 532, 499 N.E.2d 812, 821 (1986).

“The rule is aimed principally at the abuse of the hypothetical question. It does not eliminate the availability of the hypothetical question, but only the requirement of its use. . . . The thrust of the rule is to leave inquiry regarding the basis of expert testimony to cross-examination, which is considered an adequate safeguard.”

Id., quoting Advisory Committee’s Note on Proposed Mass. R. Evid. 705. See Commonwealth v. Jaime, 433 Mass. 575, 577–578, 745 N.E.2d 320, 322 (2001) (“Taking the rule and its rationale into consideration, permitting the expert to offer the contested hearsay testimony on direct examination constituted error. The judge should have sustained the defendant’s objection and precluded the admission of hearsay statements irrespective of whether they formed the basis of the expert’s opinion. If he had sought to, of course, defense counsel could have cross-examined [the expert] about the facts underlying his opinion.”). Accord Commonwealth v. Nardi, 452 Mass. 379, 387–395 (2008) (holding it was error to permit a medical examiner on direct examination to testify about the findings of another medical examiner who had performed the autopsy and who was unavailable to testify at trial, because although certain aspects of the autopsy report could be regarded as nonhearsay under the public records exception, the opinions or conclusions of the medical examiner who performed the autopsy were hearsay; in addition, the opinions and conclusions of the medical examiner who performed the autopsy were testimonial statements and their admission violated the confrontation clause; nonetheless, the court concluded the admission of the evidence was harmless error).