Alaska Comm. R. Evid. 705

As amended through December 18, 2024

Rule 705 - Disclosure of Facts or Data Underlying Expert Opinion

(a)Disclosure of Facts. Rule 705 follows the Federal Rule in eliminating the requirement of disclosure at trial of underlying facts or data before an expert testifies in terms of opinion or inference. Previously, the examination of an expert for the purpose of obtaining an opinion had to be phrased in the form of a hypothetical question with two principal exceptions: Where the witness had personal knowledge of the facts or where the witness listened to undisputed courtroom testimony. In the case of these exceptions, it has been common practice to precede the opinion with a description of its factual basis. This practice has not caused many problems. But the examination by hypothetical question has been a cause for concern. The hypothetical question has been the target of a great deal of criticism as encouraging partisan bias, affording an opportunity for summing up in the middle of the case, and as complex and time consuming. Ladd, Expert Testimony, 5 Vand. L. Rev. 414, 426-427 (1952).

The elimination of the requirement of preliminary disclosure at the trial of underlying facts or data has a long background of support. In 1937 the Commissioners on Uniform State Laws incorporated a provision to this effect in their Model Expert Testimony Act, which furnished the basis for Uniform Rules 57 and 58. Rule 4515, N.Y. Civ. Prac. Law (McKinney), provides:

Unless the court orders otherwise, questions calling for the opinion of an expert witness need not be hypothetical in form, and the witness may state his opinion and reasons without first specifying the data upon which it is based. Upon cross-examination, he may be required to specify the data . . . .

See also California Evidence Code §802; Kansas Code of Civil Procedure §§ 60-456, 60-457; New Jersey Evidence Rules 57, 58, Federal Rule 705.

Since the criticisms of the hypothetical question cited earlier suggest that it may provide unfair advantages to the direct examiner, the question arises whether to ban hypothetical questions altogether. This rule chooses not to do so. In some instances the hypothetical question works well; indeed sometimes it is the only way to elicit expert testimony. Therefore, the rule adopts Wigmore's suggestion and permits an examiner to utilize a hypothetical approach in questioning an expert, subject to Rule 403.

Many lawyers will welcome the invitation to abandon hypothetical questions, since they involve pitfalls as well as advantages for the direct examiner. In asking hypothetical questions the examiner must insure "that the facts assumed [are] supported by the evidence in the case." McCormick (2d ed.) § 14. "[B]ungling of the hypothesis by confusing it with factual material stated to the expert witness out of court demand heroic remedies." J. Maguire et al., Cases and Materials on Evidence 265 (5th ed. 1965). Moreover, the examiner runs the risk that the question will "confuse the jury, so that its employment becomes a mere waste of time and a futile obstruction," 2 Wigmore § 686, at 812.

The adverse party may require the expert to disclose facts or data underlying his opinion or inference upon cross-examination. But the cross- examiner is under no compulsion to seek disclosure and may, if disclosure is sought, seek to bring out only facts or data casting doubt upon the reliability of the opinion. Normally the cross-examiner will have enough advance knowledge to cross-examine effectively.

This advance knowledge has been afforded, though imperfectly, by the traditional foundation requirement. Rule 26(b) (4) of the Alaska Rules of Civil Procedure, as revised, provides for substantial discovery in this area, obviating in large measure the obstacles which have been raised in some instances to discovery of findings, underlying data, and even the identity of the experts. See Friedenthal, Discovery and Use of an Adverse Party's Expert Information, 14 Stan. L. Rev. 455 (1962), discussing the identical Federal Rule of Civil Procedure.

These safeguards are reinforced by the discretionary power of the judge, either on its own motion or upon request, to require preliminary disclosure in camera if the adverse party so requests.

(b)Admissibility. In the spirit of Rule 103, this subdivision provides that the adverse party may request a judicial determination of whether the requirements of Rule 703 are met before the expert is allowed to give his opinion or inference. This provision allows the adverse party who believes an opinion is ill-founded to assert this challenge without running the risk that facts or data once disclosed to the jury may never be forgotten.

Just as an offer of proof under Rule 103 may take different forms, depending on the issue before the court, the judicial hearing under this subdivision also may differ as issues change from case to case. In some cases the judge may be able to rule after a quick side-bar conference. In other cases the jury may have to be excused, or the parties may have to join the judge in chambers. Sometimes counsel's representations as to the witness's testimony will be sufficient. At other times testimony out of the hearing of the jury may be required. The trial judge is vested with broad discretion to assure that experts are permitted to testify on the basis of proper data under Rule 703 without using this rule to take an unfair advantage. Cf., Kaps Transport, Inc. v. Henry, 572 P.2d 72 (Alaska 1977).

(c)Balancing Test -- Limiting Instructions. This part of the rule requires that the court guard against any attempt to use this rule, in connection with Rule 703, to put inadmissible evidence before the jury for an improper purpose. Since facts or data need not be admissible to provide the basis for an expert's opinion under Rule 703, disclosure of facts or data, not otherwise admissible, to explain an expert's opinion might lead to use the facts or data as the basis for an independent judgment on issues in a case. If an objection is made to disclosure of facts or data not otherwise admissible in evidence, before allowing disclosure the court should hear the facts or data outside the hearing of the jury and balance the value of the facts or data as support for the expert's opinion against the danger that they will be used for an improper purpose. The balancing test used here is similar to those used in Rules 403 and 609. The danger must outweigh the value before exclusion is warranted. Whenever facts or data that would have been admissible for any other purpose are disclosed to the jury to support an expert's opinion, an instruction should be given, upon request, admonishing the jury to consider the facts or data only for the purpose for which they were disclosed. This is in accord with the policy concerning limiting instructions expressed in Rule 105.

Alaska Comm. R. Evid. 705