CLE: 2010: Evidence Update: Opinions Hearsay and Confrontation

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CLE: 2010: Evidence Update: Opinions Hearsay and Confrontation

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David A. Schlueter

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St. Mary's University School of Law San Antonio Texas Alumni Homecoming, St. Mary's University School of Law Alumni Homecoming

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2010-03-12

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St. Mary's University School of Law Alumni Homecoming

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RFC3778

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English, en-US

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Text

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STMU_HomecomingCLE2010Schlueter

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PROFESSOR DAVID A. SCHLUETER
Hardy Professor of Law &

Director of Advocacy Programs
St. Mary's University School of Law
San Antonio, Texas
Professor Dave Schlueter received his B.A. degree from Texas A & M University in
1969 and his J.D. degree from Baylor University School of Law in 1971. In 1981, he received
his LL.M. from the University of Virginia. He served on active duty as an Army JAGC officer
from 1972 until 1981 and during that time served as an appellate counsel at the Army's
Government Appellate Division, as Chief of Criminal Law at Fort Belvoir, Virginia, and as an
instructor in the Criminal Law Division at the Army's Judge Advocate General' s School in
Charlottesville, Virginia. He resigned his regular Army commission in 1981 to accept an
appointment by Chief Justice Burger to the office of legal counsel to the Supreme Court of the
United States. In that position, he provided general and special counsel advice to Chief Justice
Burger, the Court, and the individual Justices. He retired with the rank of Lieutenant Colonel in
1997, from the United States Army Reserve, JAGC.

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In 1983, Professor Schlueter accepted a position on the law faculty at St. Mary' s
University in San Antonio, Texas where he has taught Evidence, Trial Advocacy, Constitutional
Law, Criminal Law and Criminal Procedure. He served as an Associate Dean for Academics
from 1984 until1989. In 1999, he was appointed Director of Advocacy Programs and in January
2000, he was named Hardy Professor of Law. In 2002, he was named an Outstanding Law
Faculty member.
From 1988 to 2005, he served as the Reporter to the Federal Rules of Criminal Procedure
Advisory Committee, a position to which Chief Justice Rehnquist appointed him. He is a fellow
in the American Law Institute and is a life fellow of the American Bar Foundation and the Texas
Bar Foundation. He is regularly listed in Marquis' Who' s Who in American and Who's Who in
American Law.
Professor Schlueter has authored, co-authored, or edited ten books: FEDERAL EVIDENCE
TACTICS (1997, LexisNexis) (with Imwinkelried), TEXAS RULES OF EVIDENCE MANUAL (8th ed.
2009, Juris Pub.) (with Barton); TEXAS EVIDENTIARY FOUNDATIONS (3d ed. 2005, LexisNexis)
(with Onion, Barrow, and Imwinkelried); TEXAS RULES OF EVIDENCE TRIAL BOOK (2000,
LexisNexis) (with Saltzburg and Barton); EMERGING PROBLEMS UNDER THE FEDERAL RULES OF
EVIDENCE (3d ed. 1998, ABA Section on Litigation and LEXIS Law Pub., Editor-in-Chief).
MILITARY CRIMINAL JUSTICE: PRACTICE AND PROCEDURE (7th ed. 2008, LexisNexis);
MILITARY RULES OF EVIDENCE MANUAL (6th ed. 2006, LexisNexis) (with Saltzburg and
Schinasi); MILITARY CRIMES AND DEFENSES (2007, LexisNexis) (with Rose, Hansen, and
Behan); MILITARY CRIMINAL PROCEDURE FORMS, (3d ed. 2009, LexisNexis) (with Jansen, Barry
and Arnold); and MILITARY EVIDENTIARY FOUNDATIONS (2d ed. 2000, LexisNexis) (with
Saltzburg, Schinasi, and Imwinkelried). His works have been cited over 650 times by state and
federal courts (including the Supreme Court of the United States) and legal commentators.

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He has been married to L inda L. Schlueter, President of Trinity Legal Center, for 37
years. They have two, married, adult children, Jennifer Cooper (an elementary school teacher in
Austin, Texas) and Jonathan (an attorney in San Antonio, Texas).

STMARY'S UNIVERSITY SCHOOL OF LAW
2010 HOMECOMING CLE
March 12,2010

EVIDENCE UPDATE: OPINIONS, HEARSAY
& CONFRONTATION

David A. Schlueter
Hardy Professor of Law & Director
of Advocacy Programs
St. Mary's University School of Law
San Antonio, Texas

© 2010 by David A. Schlueter. All Rights Reserved

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EVIDENCE UPDATE: OPINIONS, HEARSAY
& CONFRONTATION

David A. Schlueter*

I.

INTRODUCTION

As a general principle, courts prefer facts over opinions and in-court testimony
over hearsay. Nonetheless, the Rules of Evidence-both State and Federal-allow
a proponent to present both opinions and hearsay. Those two topics seem to arise
with great frequency in litigation, whether the opinion is from a lay witness
concerning the value of her ~tolen ring or the expert out-of-court statements of lab
teclmician about the results of a lab test. In a criminal case, if the prosecution
introduces hearsay against the defendant, there is a related Confrontation Clause

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ISSUe.

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This presentation focuses on those topics -opinion testimony, hearsay, and the
Right to Confrontation.

II.

CURRENT ISSUES REGARDING OPINION TESTIMONY

A.

Lay Opinions -Rule 701
RULE 701. OPINION TESTIMONY BY LAY WITNESSES
If the witness is not testifying as an expert, the witness' testimony in the form of opinions or
inferences is limited to those opinions or inferences which are (a) rationally based on the
perception of the witness and (b) helpful to a clear understanding of the witness' testimony
or the determination of a fact in issue.

-

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Speedy Stop Food Stores, Ltd. v. Reid Road Mun. Util. Dist. No. 2, 282
S.W.3d 652, 658 (Tex. App.-Houston [14th Dist.] 2009, - -}-In a
condemnation case, the appellant company offered an affidavit of the vice
president of the general partner ofthe appellant, on behalf of the appellant;
The court held that despite disagreement among appeals courts, the court
extended the Texas Supreme Court's holding in Porras v. Craig, 675
S.W.2d 503, 504-05 (Tex. 1984) that property owners who are familiar
with the market value of their property, including real property, may
• Ms. Hayley Ellison, Ms. Nicole Hines-Glover, Ms. Shelly Enyart, and Mr. Clay Hackett assisted me in
preparing these materials.

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testify regarding that value, even if not designated as expert witnesses.
Even though Porras only applied the "Property Owners Rule" to a natural
person, the court extended the rule to apply to corporate property owner,
permitting a corporate representative to testify on corporation's behalf.
The court reasoned that permitting only natural persons to testify in this
capacity would give natural persons greater property rights than corporate
property owners; further, there is no reason to conclude that natural
persons are more reliable than corporate owners regarding the value of
their property.

City of Emory v. Lusk, 278 S.W.3d 77, 89 (Tex. App.-Tyler 2009,-)--In an inverse condemnation case, the trailer park owner's testimony
regarding the income he could have made by leasing a lot on his property
was purely speculative and did support jury finding of lost earnings.
Because owner had never rented a double-wide trailer in his park, his
testimony using the income approach to value was based on pure
conjecture as to how much income the leasing of a double-wide would
generate. Further, he did not take expenses into account in calculating
foregone income. The court said that conclusory opinions have no
probative value and will not support a verdict, even if no objection was
made at trial.

B.

Expert Opinions-Texas Rule of Evidence 702
RULE 702. TESTIMONY BY EXPERTS
If scientific, technical, or other specialized knowledge will assist the trier of fact to
understand the evidence or to determine a fact in issue, a witness qualified as an expert by
knowledge, skill, experience, training, or education may testify thereto in the form of an
opinion or otherwise.

Before permitting a witness to offer an "expert" opinion the court must
first determine that:






The witness is an expert under Rule 702;
The expert's opinion testimony is relevant;
The expert's opinion is based upon an application of reliable or
valid principles to a set of facts;
The expert's opinion is relevant to the facts of the case; and
The expert's opinion will assist the trier of fact.

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The procedural mechanism for making that decision is for the trial judge to
conduct a pretrial "gate-keeper" hearing. In order to properly preserve error,
counsel should be prepared to object, specifically, to each of the above
elements. The risk is that making a Daubert reliability objection, for
example is that an appellate court will not consider that to be specific
enough objection to whether the witness was a qualified expert under Rule
702.

1.

In General- Is Expert Testimony Required?
City of Laredo v. Garza, 293 S.W.3d 625, 632 (Tex. App.-San
Antonio 2009, - -}-The defendant relied on lay testimony to
prove causation of his injuries to his accident while on the job.
The court held that lay testimony was not enough to prove
causation. The court ruled that it was necessary to have expert
testimony regarding the defendant's injuries. According to the
court, expert testimony must be based on reasonable medical
probability and expert testimony is necessary when establishing
causation for medical conditions outside the common knowledge
and experience of jurors. In this case, there were discrepancies
regarding the defendant's injuries that needed to be evaluated by a
medical expert. The problems with the timeliness and extent of the
defendant's injuries in relationship to his claimed accident would
not be easily discernable by jurors with any general experience and
common sense.

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Freeman v. State, 276 S.W.3d 630, 641 (Tex. App.-Waco 2008,
vacated on other grounds, 286 S.W.3d 370)-At his DUI trial, the
defendant presented the testimony of a forensic toxicologist that
the defendant's appearance on a jail videotape was inconsistent
with his intoxilyzer results, of which there was no tape. The court
held that the trial court did not abuse its discretion in excluding
that testimony. The expert had previously been prohibited from
testifying to a defendant's appearance without the aid of field
sobriety tests~ expert did not know defendant' s blood-breath ratio~
expert provided no data, scientific theory, or documentary
evidence to support his position that intoxication can be
determined from viewing a videotape; and expert did not attempt
to establish general acceptance of this method in the relevant

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community. Further, whether a person appears intoxicated is
within the knowledge and expertise of average jurors; thus, the
jury did not need the expert's testimony in order to evaluate
defendant's appearance on the jail videotape.

2.

Who is an Expert?
a.

There is No Bright-Line Rule

Quinones v. Pin, 298 S.W.3d 806, 812 (Tex. App.-Dallas 2009,
- - )-In a medical malpractice case, the trial court did not abuse
its discretion in ruling that physician was qualified to opine about
the appropriate informed-consent standard of care. A physician
who has sufficient specialized knowledge about the risks inherent
in a specific medical procedure or treatment should be qualified to
render opinions about the informed-consent standard of care for
that procedure or treatment, even if he or she does not possess
broader knowledge about whether that procedure or treatment is
the best one based on the patient's particular condition. Because
the expert established in his report that he was a board-certified
internist with experience in treating a wide variety of illnesses,
diseases, and complaints and had had numerous occasions to
prescribe the medication at issue, the expert established that he had
knowledge sufficient to testify to the accepted standard of care for
obtaining informed consent to the use of the medication.

Hendrick Med Ctr. v. Conger, 298 S.W.3d 784, 788 (Tex. App.Eastland 2009,- -)-Trial court erred by denying a motion to
dismiss on grounds that an expert's report was inadequate. The
court reversed, holding that the report by an expert physician on
medical standard of care did not establish within the four comers
of the expert's report that he had any familiarity, training, or
experience that would allow him to opine as to that standard of
care. Though expert stated in his report that he was familiar with
the diagnosis and treatment of post-operative patients, he did not
say that he was familiar with the formulation of policies and
procedures of hospitals in the ICU setting similar to that involved
in the case at bar.

-

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Carreras v. Trevino, 298 S.W.3d 721, 726 (Tex. App.-Corpus
Christi 2009, - -)-Expert's report was inadequate because it
did not demonstrate that he was qualified to render an expert
medical opinion in the case at bar, and trial court abused its
discretion by not granting appellant's motion to dismiss on that
ground. A medical expert from one specialty may be qualified to
testify if he has practical knowledge of what is customarily done
by practitioners of a different specialty under circumstances similar
to those at issue in the case. But expert's curriculum vitae
blatantly contradicted his report' s summary assertion that he had
knowledge of the accepted standard of medical care for knee
replacement procedures, and expert's report was conclusory in its
assertion of knowledge of the subject matter in question. Further,
the expert' s curriculum vitae did not demonstrate how he gained
the requisite experience or training to testify as an expert on the
matter.

Philipp v. McCreedy, 298 S.W.3d 682, 689 (Tex. App.-San
Antonio 2009, - - )-The involved allegations of negligent
emergency room treatment of an orthopedic injury. The expert
physician' s qualifications, as set forth in his report and his
curriculum vitae, sufficiently qualified him to offer an opinion on
the proper treatment and care of a trimalleolar fracture and the
complications that flow from the failure to properly treat such an
orthopedic injury. The expert's report adequately established his
credentials as a board certified practitioner of emergency medicine;
that expert had substantial training and experience in emergency
medicine, including orthopedic injuries; and that expert was
actively practicing medicine in rendering medical care services
relevant to the claim. Because the claim alleged negligent
provision of emergency care, the fact that expert was not certified
in orthopedic medicine did not preclude trial court from properly
finding that expert was qualified to testify as to the cause of
appellee's injuries. Thus, trial court did not abuse its discretion in
finding that expert was qualified to testify.

-

Salazar v. State, 298 S.W.3d 273, 279 (Tex. App.- Fort Worth
2009, pet. refd)-At the defendant's DUI trial, the trial court did
not abuse its discretion by overruling the defendant' s objection to a
police officer' s testimony regarding the Horizontal Gaze
Nystagmus (HGN) test, which was administered to appellant
before his drunk driving arrest. The State adequately established

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the police officer's qualification to perform the test and to testify to
defendant's performance on the test. The police officer testified
that he had been a police officer since 1992; he attended an
extensive field sobriety testing school in 1995; he conducted field
sobriety tests on multiple test subjects during his training; he is
certified to administer field sobriety tests; in the previous four
years he attended two four-hour standard field sobriety courses, in
which he practiced the HGN test roughly fifty times; he performed
the HGN test between two hundred and three hundred times in the
field; and he fully explained the technique for administering the
HGN test. Thus, the police officer's own testimony adequately
established that he was qualified to perform the HGN test and
testify regarding its application to the defendant.

Spin Doctor Golf, Inc. v. Paymentech, L.P., 296 S.W.3d 354, 359361 (Tex. App.-Dallas 2009,- - )- In a suit over lost profits
brought by a golf club manufacturer against a credit card
processing firm, the trial court did not abuse its discretion in
excluding manufacturer's managing partner as an expert witness
due to lack of qualification. No matter how extensive, witness's
experience in evaluating business opportunities, executing
marketing plans for businesses, and monitoring business results for
golf club manufacturers was not knowledge, skill, experience,
training, or education sufficient to qualify him as an expert about
lost profits. The type of industry is irrelevant to the accounting
principles used to conduct profits analysis.

Granbury Minor Emergency Clinic v. Thiel, 296 S.W.3d 261 , 26667 (Tex. App.-Fort Worth 2009,- -)--This case arose from a
medical malpractice claim where the defendant, a general family
practice doctor, failed to diagnose appendicitis. The plaintiff
presented expert testimony from a board-certified emergency room
physician. The court said that an expert can give his opinion about
the causal connection between the injury claimed and the departure
from the standard of care if he is otherwise qualified to give
opinions on such causal connections under Rule 702. The medical
condition involved in the claim determines the applicable standard
of care. The expert's ability to opine on such is determined by his
familiarity and experience with the condition, not by the defendant
doctor' s area of expertise.

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Methodist Hosp. v. Shepherd-Sherman, 296 S.W.3d 193, 197-98
(Tex. App.- Houston [14th Dist.] 2009, - -)-In a medical
malpractice lawsuit, the court held that a doctor was qualified as an
expert witness to give an opinion about the standard of care in
hospital admissions procedures when a patient requested a
particular surgeon. The doctor was qualified because of his
experience with the admissions process and was not automatically
disqualified from giving opinions about other types of health care
providers, so long as the doctor was familiar with the standard of
care of the other health care providers based on his work and
supervisory experience.

Champion v. Great Dane Ltd. P 'ship, 286 S.W.3d 533, 545 (Tex.
App.-Houston [14th Dist.] 2009, - - } -An injured truck driver
brought a negligence and products liability suit against the
refrigerated truck trailer manufacturer. An expert witness's
testimony as to a design defect was properly excluded because the
expert demonstrated no specialized knowledge regarding the
particular design of the rear uncovered gutter of refrigerated
trailers. Even though the expert held the same undergraduate
degree in mechanical engineering as some of appellee' s qualified
experts, the expert' s degree did not demonstrate that he possessed
specialized knowledge about the trailer component at issue in this
case Further, the expert's experience in designing workplace
products and in designing solutions for hazards in walking surfaces
did not qualify him as experienced, by logical extension, m
designing solutions for hazards in refrigerated trailers.

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-

Bryan v. Sherrick, 279 S.W.3d 731 , 733 (Tex. App. -Amarillo
2007, no pet.}-Expert testimony submitted by plaintiff in medical
malpractice action was insufficient to establish causal connection
between the doctor' s alleged breach of standard of care and the
plaintiff's injury, thereby supporting summary judgment ruling in
favor of defendant-doctor. The expert, an emergency room
physician, had no specific surgical training or experience treating
the type of injury sustained by plaintiff. Further, upon crossexamination during his deposition, the expert testified that he could
not say that plaintiff would not have suffered the same injury even
if the defendant-doctor had immediately referred plaintiff to a
surgeon, which plaintiff alleges defendant should have done.

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House v. Jones, 275 S.W.3d 926, 931 (Tex. App.-Dallas 2009,
pet. den.)-A medical oncologist was qualified to prepare a
medical expert report necessary for medical malpractice action,
specifically with regard to standard of care and alleged breach of
standard by defendant physician. Though the expert was not an
orthopedist like defendant, the expert was certified in internal
medicine and medical oncology and had substantial knowledge and
experience with patients presenting the same condition as plaintiff.
Further, the expert claimed that the defendant's alleged breach fell
short of accepted standards of care that apply regardless of
specialty. This conclusion was sufficiently supported by the
background, training, and experience the expert stated in her
report.
Thus, the expert's report sufficiently stated her
qualifications and the trial court did not abuse its discretion by
denying the motion to dismiss on basis of expert qualifications.

b.

Lessons Learned-A Checklist



The case law is clear, there are no bright line tests for
determining whether a witness may offer "expert" testimony.
And we do not always have an unlimited list of experts who fit
perfectly within our needs in a particular case. Nonetheless the
decisions in this area signal that "one size will not fit all" and
that the litigator must present an expert who fits the case.



The following factors should be carefully considered m
selecting an expert--- - Education? (formal or informal?)

_ _ Experience? How Obtained? When? Where?
_ _ Knowledge?

- - Certified? When?
_ _

Published any Articles, Pamphlets?

_ _ Teaching Experience?
_ _ Credibility?
_ _ Reputation Among Peers?

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4.

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Bases of Expert's Opinion- Rule 703
RULE 703. BASES OF OPINION TESTIMONY BY EXPERTS

The facts or data in the particular case upon which an expert bases an opinion or inference
may be those perceived by, reviewed 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.



An expert may rest his or her opinion on a variety of bases-including
otherwise inadmissible evidence, a topic covered under the section on
hearsay and the Confrontation Clause, infra.



As discussed in the following sections, it is not always clear to the courts
that the experts relied on the correct factual basis.

5.

Reliability of Underlying Theories, Principles or
Methodologies
a.

In General



-

-

Federal Rule of Evidence 702 and federal and Texas case law
require that the proponent of expert testimony establish that the
expert's opinion be based upon reliable principles. That
proposition was set out by the Supreme Court of the United
States in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509
U.S. 579 (1993). In that case the Court held that the Federal
Rules of Evidence had replaced the Frye test, which required
the trial judge to determine if the expert' s opinion was based
on generally acceptable scientific principles. In Daubert, the
Court also set out a list of four factors to assist the trial judge in
making that decision-now commonly referred to as the
Daubert factors.



Daubert was actually preceded by the Texas Court of Criminal
Appeals in Kelly v. State, 824 S.W.2d 568 (Tex. Crim. Appeals
1992), which rejected the Frye test for determining whether
expert testimony on novel scientific evidence is admissible. In
doing so, the Court suggested a list of 7 factors for the trial
court to consider. The Texas Supreme Court followed Daubert

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in DuPont DeNemours and Company, Inc. v. Robinson, 923
S.W.2d 549 (Tex. 1995). The Court suggested a list of 6 factors
to be considered by the trial judge in deciding whether the
underlying theories or methodologies were reliable.


Under Daubert and Robinson, the proponent must establish the
underlying reliability by a preponderance of the evidence.
Kelly, however requires that the proponent establish the
underlying reliability by clear and convincing evidence

The following chart demonstrates the similarities and differences in the
three standards:
COMPARISON OF ADMISSIBILITY STANDARDS

F ederal Rules of
Evidence

Standard for
Admissibility

Daubert: Validity, i.e.
reliability

Te;xas Civil Cases

Robinson: Validity, i.e.,
reliability

Texas Criminal Cases

Kelly: Validity, i.e.,
reliability
a. valid underlying
scientific theory
b. valid technique
applying theory; &
c. technique was
properly applied

Factors to Be
Considered by Judge

(I) Has theory been
tested?
(2) Peer review?
(3) Error rate?
(4) Generally
accepted?

(I) Extent of testing?
(2) Degree of subject.
application?
(3) Peer review?
(4) Error rate?
(5) Generally
accepted?
(6) Nonjudicial uses of
theory?

(I) Degree of
acceptance?
(2) Qual. of expert?
(3) Exist. of Lit.?
(4) Error rate?
(5) Peer review?
(6) Clarity of
explanation?
(7) Skill/experience of
person applying?

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Whirlpool Corp. v. Camacho, 298 S.W.3d 631, 643 (Tex.
2009)-The Court concluded that an electrical engineer' s
expert opinion in products liability action against clothes
dryer manufacturer (Whirlpool), that a design defect in the
dryer caused a fatal fire, was legally insufficient to support
a verdict against Whirlpool. The expert did not produce or
know of scientific testing (conducted by him or others) to
support his theory. The expert referenced another study but
could not explain how the testing data from that study
supported his ultimate conclusion, as the other study
involved substantially dissimilar conditions than those at
issue in the case at bar. Though testing is not always
required to support an expert's opinion, lack of relevant
testing to the extent it was possible is one factor that points
toward a determination that an expert opinion is unreliable.
Further, the expert's theory was developed for litigation in
this case, his opinions and theories had not been published
for peer review, and he did not indicate that his theory had
been accepted as valid by any part of a relevant scientific or
expert community. The Court stated:

When expert testimony is involved, courts are to
rigorously examine the validity of facts and
assumptions on which the testimony is based, as
well as the principles, research and methodologies
underlying the expert's conclusions and the manner
in which the principles and methodologies are
applied by the expert to reach the conclusions.

-

Lincoln v. Clark Freight Lines, Inc ., 285 S.W.3d 79, 91
(Tex. App.-Houston [1st Dist.] 2009, --)-The trial
court did not err by admitting accident reconstruction
expert's testimony regarding the cause of motor vehicle
accident. The expert used the test of coefficient of friction
that is widely used in the field and is generally accepted as
being scientifically reliable. Even though the expert used a
different type of vehicle than was involved in the accident
to calculate coefficient of friction, the differences were
revealed and explained on the record, and the differences
were immaterial and ''readily understood." Further, the
expert's testimony was properly admitted as reliable
because his methodology was grounded in methods and

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procedures of science and was not based merely on
subjective belief or unsupported speculation.

Subirias v. State , 278 S.W.3d 406, 413 (Tex. App.- San
Antonio 2008, pet. ref.)-At the defendant's trial for
intoxication manslaughter and intoxication assault, the
prosecution introduced expert opinion on retrograde
extrapolation by the chief toxicologist for the county's
medical examiner's office. The court held that the expert's
testimony was reliable. The defendant argued that the
expert had limited knowledge of the defendant's individual
characteristics and did not know how the blood was
analyzed. However, the court said, not every individualized
fact needs to be known to the expert in order for the expert
to produce a reliable extrapolation. In this case, the expert
was aware of the subtleties of the science, the risks inherent
in extrapolation, and he had the ability to apply the science
and explain it with clarity. This case differed from Mata v.
State, 46 S.W.3d 902 (Tex. Crim. App. 2001) (retrograde
extrapolation in that case was unreliable) because here
three tests were run on the defendant over a reasonable
span of time on which the expert could form an opinion;
therefore, the trial court' s decision was not outside the zone
of disagreement and the expert opinion was reliable.

b.

Expert Testimony on Soft Sciences
In re E.CL. , 278 S.W.3d 510, 520 (Tex. App.-Houston
2009, denied)-At the defendant's trial on charges of killing
his father, the trial court excluded defense expert testimony
regarding battered-child syndrome. The Court of Appeals
reversed. To be admissible under Rule 702 and Kelly, the
expert' s testimony must help the trier-of-fact understand
the evidence or determine a fact in issue. Where "soft
sciences" such as psychology, are involved, the court looks
at whether the field is legitimate, whether the subject matter
of the expert' s testimony is within the scope of that field,
and whether the testimony properly relies upon the
principles in that field. In this case, the expert properly
relied upon principles in his field; it was shown that his
twenty years of experience in psychology and examination

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of the defendant's records demonstrated
methodology and should have been admissible.

6.


sound

Recurring Problems
The cases make clear that the courts are often skeptical about expert
testimony and the possibility that a jury may gave undue weight to
such evidence. In accepting or rejecting expert testimony, some
patterns have emerged as to what sorts of problems counsel is likely to
encounter in presenting expert testimony. The following cases
demonstrate several common problem areas.

a.

Analytical Gaps

Hall v. Hubco, 292 S.W.3d 22, 29 (Tex. App.-Houston
[14th Dist.] 2006, denied)-A landowner sued a fill dumper
for breach of contract which required that only clean dirt be
dumped. The trial court properly excluded expert testimony
on the costs of removing the contaminated soil b because it
was unreliable. Expert testimony can be unreliable if there
is too great of an analytical gap between the data relied
upon and the conclusion. In this case, the expert testified
that soil sampling was crucial in determining the cost to
remove the waste. But the expert only based his decision
on two soil samples and testified that more soil samples
should have· been taken. Based on the expert's inability to
accurately determine the cost, the expert's testimony was
unreliable.

-

Plunkett v. Conn. Gen. Life Ins., 285 S.W.3d 106, 117
(Tex. App.-Dallas 2009, --)-Testimony by expert
toxicologist in a mold case, regarding property damage,
failed to raise a fact issue sufficient to defeat summary
judgment because the testimony was scientifically
unreliable and based solely on expert's "ipse dixit." The
expert provided no empirical evidence or methodology that
explained the validity of his extrapolations, which apply
evidence from one apartment to all apartments in the
complex; thus, the expert failed to "'close the analytical
gap'" between conclusions and foundational data. Further,

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the expert offered no actual test data from any source
specifically supporting his theory.

Transcontinental Ins. Co. v. Crump, 274 S.W.3d 86, 97
(Tex. App.-Houston [14th Dist.] 2008, granted}-The
case arose out of workman's compensation ruling which
awarded death benefits to the appellee, the wife of the
deceased employee. The court held that the trial court did
not abuse its discretion in failing to apply the factors listed
in Robinson to the appellee's expert's opinion on causation.
That expert's opinion, the court said, was developed
through "differential diagnosis" of the deceased patient.
Under that methodology, the doctor compares the patient's
symptoms with known diseases, conducts physical
examinations, collects data on the patient's history and
illnesses and then analyzes the data in deciding how to best
treat the patient; it "enjoys widespread acceptance in the
medical community" and is the basic method of internal
medicine. Thus, there was no "analytical gap" between the
doctor's opinion and the bases of which it was founded. It
was therefore properly admitted.

b.

Ipse Dixit Opinions
City of San Antonio v. Pollock, 284 S.W.3d 809, 818 (Tex.
2009)-In a lawsuit over a closed municipal landfill, the
court held that a scientists' expert testimony offered to
prove in utero exposure to toxic landfill gas were the kind
of naked conclusions that cannot support a judgment.
Admission of the evidence constituted reversible error.
Both experts relied on data that did not support their
conclusions. One expert' s conclusion was directly
contradicted by his own data. Although city did not
challenge any part of either expert's analysis, the fact that
recovery was premised on the experts' ipse dixit
conclusions was harmful error.

Penner Cattle, Inc. v. Cox, 287 S.W.3d 370, 373 (Tex.
App.- Eastland 2009, denied)--The case arose from a
contract dispute over the costs of raising cattle. The court

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noted that the livestock dealer was qualified to offer an
expert opinion on the cattle business, and on estimates of
lost profits. But the dealer failed to provide any objective
facts, figures, or data to substantiate his opinion.

c.

Opinions Based on Conjecture or Speculation
Ingram v. Deere, 288 S.W.3d 886, 903 (Tex. 2009}-In a

breach of contract case arising out of a dispute involving a
multidisciplinary pain clinic, a defense expert testified that
the plaintiffs reputation could benefit the clinic, but
admitted that he did not know the plaintiff. The Supreme
Court held that that expert testimony was unsupported and
amounted to mere assumptions, which could not establish
that the plaintiff contributed valuable property to the clinic.

Merck & Co., Inc. v. Ernst, 296 S.W.3d 81, 97-99 (Tex.
App. -Houston [14th Dist.] 2009, - - )-In a wrongful
death lawsuit against a drug manufacturer, concerning the
use of Vioxx, the plaintiffs experts opined that cause of
death resulted from a blood clot that was either
subsequently broken up or dislodged. Autopsy results
showed no indication of a blood clot, and no scientific or
medical literature supported the plaintiffs theory. Citing
the Robinson factors, the court concluded that the
plaintiffs experts' opinions on cause of death were based
on conjecture and speculation and were not supported by
facts in evidence. The court rejected the plaintiff's
argument that by using the Differential Diagnosis method,
the doctor had adequately consider alternate causes; that
methodology does not exclude all other risk factors; it only
requires exclusion of likely causes until "the most probable
one is isolated." The exclusion of risk factors does not
amount to the exclusion of causes.

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d.

Consideration of Alternate Causes
Thomas v. Uzoka, 290 S.W.3d 437, 452 (Tex. App.-

Houston [14th Dist.] 2009, denied)- In a wrongful death
case arising from a head-on automobile collision, the court
held that expert testimony by two police officers called by

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the plaintiff, regarding cause of automobile collision, was
properly admitted. The first officer presented expert
testimony about the cause of the accident. Using that data,
the second expert offered testimony about the speed of the
defendant's vehicle. The court concluded that the first
officer did consider alternate causes of the collision and
found them inconsistent with physical evidence found at
the scene. Further, that officer was not obligated to
interview eyewitnesses to the collision when none came
forward and the accident occurred in '"the middle of
nowhere."' The second police officer's expert testimony
regarding vehicle speed based on computer program
(WinCrash) computations was property admitted because
both the program itself and the input methods used are
generally accepted within the accident-reconstruction
community.

7.

Ineffective Assistance of Counsel?

Counsel's failure to raise an objection concerning the admissibility of
expert testimony may result in a claim that counsel was ineffective in
representing a criminal defendant.
Hawkins v. State, 278 S.W.3d 396, 402 (Tex. App.-Eastland 2008, no
pet.)-Defendant's counsel did not file a Daubert motion in regards to the
State's DNA expert and a forensic chemist. The court held that the failure
to do so did not mean that he was rendered ineffective assistance of
counsel. The defendant did not provide any evidence of what the effect of
the motion could have been, so he could not overcome the presumption
that his trial counsel' s conduct was reasonable.

Weatherly v. State, 283 S.W.3d 481 , 493 (Tex. App. -Beaumont 2009,
pet. ref' d)- The court held that the defense counsel was not ineffective for
failing to conduct a voir dire of a police officer, who offered expert
opinion testimony regarding the defendant's "grooming" of the sexual
assault victim (committing small offenses to see if the victim makes an
outcry, then graduating over time to more serious offenses). The
defendant argued only that the officer's testimony was inadmissible expert
opinion because it was unreliable and the officer lacked expertise. But the
State established the expertise of the officer and showed that the officer
had a sufficient basis for the opinion. The defendant could not establish

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that objecting to the officer's testimony or conducting a voir dire of the
officer would have resulted in the exclusion of the testimony.

III.

HEARSAY PROBLEMS

A.

In General -

What is Hearsay?
RULE 801. DEFINITIONS

The following definitions apply under this article:
(a)

Statement. A "statement" is (I) an oral or written verbal expression or
(2) nonverbal conduct of a person, if it is intended by the person as a substitute for
verbal expression.

(b)

Declarant. A "declarant" is a person who makes a statement.

(c)

Matter Asserted. "Matter asserted" includes any matter explicitly asserted, and
any matter implied by a statement, if the probative value of the statement as
offered flows from declarant's belief as to the matter.

(d)

Hearsay. "Hearsay" is a statement, other than one made by the declarant while
testifying at the trial or hearing, offered in evidence to prove the truth of the matter
asserted.

(e)

Statements Which Are Not Hearsay. A statement is not hearsay if:

(I)
Prior statement by witness. The declarant testifies at the trial or hearing and is
subject to cross-examination concerning the statement, and the statement is:

(2)

-

(A)
inconsistent with the declarant's testimony, and was given
under oath subject to the penalty of perjury at a trial, hearing, or other proceeding
except a grand jury proceeding in a criminal case, or in a deposition;
(B)
consistent with the declarant's testimony and is offered to rebut
an express or implied charge against the declarant of recent fabrication or
improper influence or motive;
(C)
one of identification of a person made after perceiving the
person; or
(D)
taken and offered in a criminal case in accordance with Code of
Criminal Procedure article 38.071.
Admission by party-opponent. The statement is offered against a party and is:
(A)
the party's own statement in either an individual or
representative capacity;
(B)
a statement of which the party has manifested an adoption or
belief in its truth ;
(C)
a statement by a person authorized by the party to make a
statement concerning the subject;
(D)
a statement by the party's agent or servant concerning a matter
within the scope of the agency or employment, made during the existence of the
relationship; or

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(E)
a statement by a co-conspirator of a party during the course and
in furtherance of the conspiracy.
(3)
Depositions. In a civil case, it is a deposition taken in the same proceeding, as
same proceeding is defmed in Rule of Civil Procedure 207. Unavailability of deponent is
not a requirement for admissibility.

B.

Hearsay and the Sixth Amendment- The Right to Confrontation
Background

1.

• Assuming a court concludes that proffered evidence is hearsay, Rules
803 and 804 contain a long list of exceptions to the hearsay rule-e.g.,
excited utterances, statements made for purposes of medical treatment,
past recollection recorded, business and public records, and the learned
treatise exception- to name a few. Assuming that the proponent can
establish a predicate for the hearsay exception, the out of court
statement is admitted as "admissible hearsay."



There are also "exemptions" or "exclusions" from the hearsay rule,
listed in Rule 801 . For example, statements by a party are normally
considered "nonhearsay" because the Rule says that they are not
hearsay, even though they otherwise satisfy the definition of hearsay.

• In criminal cases, there is a special problem associated with hearsay
statements. If the prosecution offers a hearsay statement against the
defendant, the defendant's Sixth Amendment right "confront" the
hearsay declarant (a witness) may be violated.

2.

Testimonial Hearsay---Crawford v. Washington





In Crawford v. Washington, 541 U.S. 36 (2004), the Supreme
Court rejected 25 years of case law applying what had been labeled
the Ohio v. Roberts reliability test, in deciding whether a hearsay
statement violated the Confrontation Clause. The Court held in
Crawford that key questions are whether the offered statement is
"testimonial" hearsay and, if so, whether the accused had an
opportunity to cross-examine the hearsay declarant.
Citing historical sources, the Court said that the original intent of
the Clause was not to exclude unreliable evidence but instead to
exclude evidence which is considered "testimonial" and has not

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been cross-examined by the accused. In addressing that question
of what is considered a "testimonial" statement, the court said:
Various formulations of this core class of ''testimonial"
statements exist: "ex parte in-court testimony or its
functional equivalent-that is, material such as affidavits,
custodial examinations, prior testimony that the defendant
was unable to cross-examine, or similar pretrial statements
that declarants would reasonably expect to be used
prosecutorially," "extrajudicial statements ... contained in
formalized testimonial materials, such as affidavits,
depositions, prior testimony, or confessions~·· "statements
that were made under circumstances which would lead an
objective witness reasonably to believe that the statement
would be available for use at a later trial," These
formulations all share a common nucleus and then define
the Clause's coverage at various levels of abstraction
around it. Regardless of the precise articulation, some
statements qualify under any definition- for example, ex
parte testimony at a preliminary hearing.

******

-

Whatever else the term covers, it applies at a minimum to
prior testimony at a preliminary hearing, before a grand
jury, or at a former trial ~ and to police interrogations. These
are the modem practices with closest kinship to the abuses
at which the Confrontation Clause was directed.

• If the trial court determines that a proffered statement is testimonial,
the prosecution must either (a) produce the declarant as a witness or
(b) first show that the declarant is unavailable as a witness and second,
the accused was provided an opportunity to cross-examine the
declarant.

3.

-

-

Are Business Records & Lab Reports Testimonial Hearsay?

• A current issue is whether business and laboratory reports (which are a
form of business record) are considered testimonial hearsay under
Crawford. There are both Texas and Federal cases holding that
traditional business records, not prepared for the purpose of litigation,
are nontestimonial. There are other cases holding that public records

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are nontestimonial. And there are cases holding that lab reports may
not be testimonial if they are based upon objective analysis. But those
cases must be read in light of Melendez-Diaz, infra.


4.

In Melendez-Diaz v. Massachusetts, 129 S.Ct. 2527 (2009), the
Supreme Court (by a five to four vote) held that sworn "certificates of
analysis" demonstrating the results of lab tests on suspected drugs,
were within the core definition of testimonial hearsay. The certificates
had been sworn to before a notary public. The Supreme Court noted
that although the documents were called certificates, they were clearly
affidavits, which had been prepared specifically for the purpose of
litigation. In a footnote, the Court noted that "documents prepared in
regular course of equipment maintenance may well qualify as
nontestimonial records." 129 S.Ct. at 2532, n.l. The Court apparently
adopted the reasoning used by lower federal courts - that is, if the
record is admissible under 803(6) or 803(8) it is nontestimonial
because it is not prepared for the purpose of litigation. It is important
to note that in Melendez, Justice Thomas was the crucial swing vote.
He believed that the reports in the case clearly fell within the Crawford
definition of testimonial, because they were "sworn" statements. It is
not clear what Justice Thomas would say if the document was simply a
lab report.

Getting Around the Testimonial Hearsay Problem-Tex. R.
Evidence 703?
RULE 705. DISCLOSURE OF FACTS OR DATA UNDERLYING
EXPERT OPINION

(a)

Disclosure of Facts or Data. The expert may testify in terms of opinion or
inference and give the expert's reasons therefor without prior disclosure of the
underlying facts or data, unless the court requires otherwise. The expert may in
any event disclose on direct examination, or be required to disclose on crossexamination, the underlying facts or data.

(b)

Voir dire. Prior to the expert giving the expert's opinion or disclosing the
underlying facts or data, a party against whom the opinion is offered upon request
in a criminal case shall, or in a civil case may, be permitted to conduct a voir dire
examination directed to the underlying facts or data upon which the opinion is
based. This examination shall be conducted out of the hearing of the jury.

(c)

Admissibility of opinion. If the court determines that the underlying facts or data
do not provide a sufficient basis for the expert's opinion under Rule 702 or 703,
the opinion is inadmissible.

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(d)

22

Balancing test; limiting instructions. When the underlying facts or data would
be inadmissible in evidence, the court shall exclude the underlying facts or data if
the danger that they will be used for a purpose other than as explanation or support
for the expert's opinion outweighs their value as explanation or support or are
unfairly prejudicial. If otherwise inadmissible facts or data are disclosed before
the jury, a limiting instruction by the court shall be given upon request.

Wood v. State, 299 S.W.3d 200, 213 (Tex. App.-Austin 2009,
reh'g overruled}-At trial, the prosecutor called an expert medical
examiner to testify as to the cause of the murder victim's death.
The witness had not conducted the autopsy, but referred to the
findings in the autopsy and then offered his opinion that the victim
had died from blunt force trauma. The court concluded that first,
the autopsy report was testimonial hearsay, based upon its ready of
Melendez-Diaz, supra. The court distinguished contrary rulings
from other Courts of Appeals that autopsy reports are not
testimonial, because those cases preceded Melendez-Diaz. Second,
citing Rules 703 and 706, the court held that the expert could rely
on otherwise inadmissible testimonial hearsay to support his
opinion. But the expert in this case, however, did more than merely
offer his expert opinions. The expert also disclosed to the jury the
testimonial statements in the autopsy report on which his opinions
were based. That violated Rule 705(d)'s requirement that such
disclosure must only be offered as explanation and support for the
opinion -not as substantive evidence - and that its probative
value is not outweighed by the danger that the facts and data will
be used for another, impermissible purpose. Further, no limiting
instruction was given.

-

-

But the error was harmless because the only testimonial hearsay
disclosed to the jury that was of any value to the State's case was
the statement that the victim had suffered twenty-one rib fractures,
and the jury already knew that the victim had been beaten to death
and was already aware of the severity of that beating from the
autopsy photographs. The Confrontation Clause is not violated
merely because an expert bases an opinion on inadmissible
testimonial hearsay. Though other report was cumulative of and
added nothing to expert's testimony, it did not contribute to
appellant's conviction or punishment.

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IV.

23

CONCLUSION

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V.

ADDITIONAL RESOURCES


SCHLUETER & BARTON, TEXAS RULES OF EVIDENCE MANUAL (8th ed.
2009, Juris Pub.)



SCHLUETER, ONION, BARROW & IMWlNKELRIED, TEXAS EVIDENTIARY
FOUNDATIONS (3rd ed. 2005, Matt. Bender) (sample foundation for
expert testimony)



SCHLUETER & BARTON, TEXAS RULES OF EVIDENCE TRIAL BOOK
(Lexis Law Pub. 2000) (sample rulings and limiting instructions)



SALTZBURG, MARTIN & CAPRA, FEDERAL RULES OF EVIDENCE
MANUAL (9th ed. 2006. LexisNxis)

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Files

Collection

Citation

David A. Schlueter, “CLE: 2010: Evidence Update: Opinions Hearsay and Confrontation,” St. Mary's Law Digital Repository, accessed June 28, 2017, http://lawspace.stmarytx.edu/item/STMU_HomecomingCLE2010Schlueter.

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