N.M. R. Evid. 11-703
An expert may base an opinion on facts or data in the case that the expert has been made aware of or personally observed. If experts in the particular field would reasonably rely on those kinds of facts or data in forming an opinion on the subject, they need not be admissible for the opinion to be admitted. But if the facts or data would otherwise be inadmissible, the proponent of the opinion may disclose them to the jury only if their probative value in helping the jury evaluate the opinion substantially outweighs their prejudicial effect.
N.M. R. Evid. 11-703
Committee commentary. - The language of Rule 11-703 NMRA was amended in 2012 to be consistent with the restyling of the Federal Rules of Evidence, effective December 1, 2011, to make them more easily understood and to make style and terminology consistent throughout the rules. These changes are intended to be stylistic only. There is no intent to change any result in any ruling on admissibility.
The committee deleted all reference to an "inference" on the grounds that the deletion made the rule flow better and easier to read, and because any "inference" is covered by the broader term "opinion." Courts have not made substantive decisions on the basis of any distinction between an opinion and an inference. No change in current practice is intended.
The 2006 amendment added clarifying language consistent with New Mexico and federal case law identical to language added to federal Rule 703 in 2000. It is intended to strike a balance between an expert's need to rely upon sources of information used in the expert's field in arriving at decisions, but at the same time to avoid using the expert witness as a conduit for inadmissible evidence to be transmitted to the jury and improperly used as substantive evidence. When information is reasonably relied upon by an expert and yet is admissible only for the purpose of assisting the jury in evaluating an expert's opinion, a trial court applying this rule must consider the information's probative value in assisting the jury to weigh the expert's opinion on the one hand, and the risk of prejudice resulting from the jury's potential misuse of the information for substantive purposes on the other. The information may be disclosed to the jury, upon objection, only if the trial court finds that the probative value of the information in assisting the jury to evaluate the expert's opinion substantially outweighs its prejudicial effect. If the otherwise inadmissible information is admitted for such a limited purpose under this balancing test, a limiting instruction under Rule 11-105 NMRA would be appropriate.
[As amended by Supreme Court Order No. 12-8300-015, effective for all cases pending or filed on or after June 16, 2012.]
ANNOTATIONS The 2012 amendment, approved by Supreme Court Order No. 12-8300-015, effective for all cases pending or filed on or after June 16, 2012, modified the title of the rule and rewrote the rule to make stylistic changes, including the deletion of references to "inference". The 2006 amendment, approved by Supreme Court Order No. 06-8300-025, effective December 18, 2006, amended the second sentence and added the last sentence of the rule. The 1993 amendment, effective December 1, 1993, substituted "the expert" for "him" near the end of the first sentence. Compiler's notes. - This rule is similar to Rule 703 of the Federal Rules of Evidence. Failure of expert witness to state independent opinion. - Where the autopsy report of the infant victim was admitted into evidence based on the testimony of the former supervisor of the medical examiner who prepared the autopsy report, and the supervisor testified that the supervisor was testifying for the medical examiner and did not state the supervisor's own independent opinions, the district court abused its discretion in admitting the autopsy report into evidence. State v. Jaramillo, 2012-NMCA-029, 272 P.3d 682, cert. denied, 2012-NMCERT-002. Sufficiency of objection that science underlying testimony is unreliable. - Where the science underlying an expert's testimony may properly be taken for granted because the reliability of the science has long been accepted, a defendant must make an affirmative showing that there is some reason to doubt the reliability of that science before a trial court is obligated to hold a reliability hearing. State v. Fuentes, 2010-NMCA-027, 147 N.M. 761, 228 P.3d 1181. Firearm forensic and tool mark analysis admissible. - Where a forensics scientist testified that a gun found in defendant's vehicle was the gun used to shoot the victim to the exclusion of all other guns based on markings on test-fired projectile casings and projectile casings recovered from the scene of the crime; the trial court ruled that the firearm forensics and tool mark analysis techniques employed by the scientist were reliable based solely on the trial court's finding that this type of science has generally been accepted; no evidence was submitted concerning the testability of the science, whether the science has been subjected to peer review and publication, and whether there was a known rate of error associated with using the science; and defendant merely asserted that the science underlying the techniques was unreliable without any basis to support defendant's claim, the trial court did not abuse its discretion in denying defendant's request for a reliability hearing. State v. Fuentes, 2010-NMCA-027, 147 N.M. 761, 228 P.3d 1181. Expert must give satisfactory explanation as to how opinion reached. - An expert witness must, of course, be able to give a satisfactory explanation as to how he arrives at his opinion. If his opinion is based on erroneous factors, it is subject to being stricken. Dahl v. Turner, 1969-NMCA-075, 80 N.M. 564, 458 P.2d 816, cert. denied, 80 N.M. 608, 458 P.2d 860; Smith v. Klebanoff, 1972-NMCA-075, 84 N.M. 50, 499 P.2d 368, cert. denied, 84 N.M. 37, 499 P.2d 355. An expert witness must be able to give a satisfactory explanation as to how he arrives at his opinion, and without such an explanation the opinion is not competent evidence. Galvan v. City of Albuquerque, 1973-NMCA-049, 85 N.M. 42, 508 P.2d 1339. Testing basis of expert's opinion. - An expert is not to be sheltered from a testing of the basis of his opinion; rather, such a testing is expressly authorized. Jaramillo v. Fisher Controls Co., 1985-NMCA-008, 102 N.M. 614, 698 P.2d 887. Expert may rely upon hearsay information. - In forming an expert opinion it may be necessary to rely upon information - hearsay though it be - which in part is derived from persons charged with the supervision of the one whose conduct is involved. The information is winnowed through the mental processes of the expert, and is by him either accepted or rejected. If information is accepted as useable by the expert-doctor it is not so liable to be untrustworthy as to require the court to rule that his opinion is unworthy of consideration by the jury. State v. Chambers, 1972-NMSC-069, 84 N.M. 309, 502 P.2d 999. Because basis of expert opinion is required to be made known before the expert opinion is admissible, this court is unwilling to exclude from consideration that information upon which the expert himself relies and will allow an expert to rely on hearsay evidence. Herrera v. Springer Corp., 1976-NMCA-015, 89 N.M. 45, 546 P.2d 1202, cert. denied, 89 N.M. 206, 549 P.2d 284. Hearsay itself not admissible though relied upon by expert. - Even if physicians relied on hearsay in forming their opinions, that would not make the hearsay itself admissible. Wilson v. Leonard Tire Co., 1976-NMCA-111, 90 N.M. 74, 559 P.2d 1201, cert. denied, 90 N.M. 9, 558 P.2d 621. While experts may rely on hearsay under this rule, the hearsay itself is not admissible. Coulter v. Stewart, 1982-NMSC-035, 97 N.M. 616, 642 P.2d 602. Applicability to worker's compensation cases. - Although Rule 92.3.2 of the Workers' Compensation Administration Rules, Oct. 1992, addresses the procedures for admitting medical records, this rule still applies in workers' compensation cases because it governs the basis for expert opinion testimony. Lopez v. City of Albuquerque, 1994-NMCA-122, 118 N.M. 682, 884 P.2d 838. DNA evidence admissible. - The probative value of the DNA typing evidence outweighs its prejudicial effect. This evidence and the testimony will be probative because it links defendant to the crimes for which he has been charged. Any debate over the resulting probabilities that the "match" is random goes to the weight of the evidence and is properly left for the jury to determine. State v. Duran, 1994-NMSC-090, 118 N.M. 303, 881 P.2d 48. DNA experts must base opinion on scientifically valid and generally accepted procedures. - Because the FBI's theory and procedures for DNA testing are "scientifically valid" and "generally accepted" in the pertinent scientific community, pursuant to Rule 702 NMRA the experts testified about scientific knowledge based on sound methodology. The experts also based their opinions on data and facts reasonably relied upon by experts in molecular biology and population genetics. Therefore, the DNA typing evidence met the standard for admissibility. State v. Anderson, 1994-NMSC-089, 118 N.M. 284, 881 P.2d 29; State v. Duran, 1994-NMSC-090, 118 N.M. 303, 881 P.2d 48. Cannot have admitted in evidence opinions of absent doctors. - In personal injury case, where plaintiff, in cross-examination of defendant's doctors, got admitted in evidence the medical opinions of two absent doctors, and there was no evidence that defendant's doctors had relied on those opinions, and the argument that the opinions were admissible because they could bring out the fact that defendant's doctors had rejected the opinions was without merit and was considered a back door ruse to introduce inadmissible testimony. Wilson v. Leonard Tire Co., 1976-NMCA-111, 90 N.M. 74, 559 P.2d 1201, cert. denied, 90 N.M. 9, 558 P.2d 621 (1977). Admission in evidence of hearsay medical opinion of nontestifying physician is prejudicial error. O'Kelly v. State, 1980-NMSC-023, 94 N.M. 74, 607 P.2d 612. Reliance upon other doctor's reports not in evidence permissible. - When a doctor appears to have relied on medical reports prepared by other doctors, the objection that these reports were an impermissible basis for his opinion because they were not in evidence, is not a sufficient objection. There was no objection that these reports were not of the sort reasonably relied on by such experts. Higgins v. Hermes, 1976-NMCA-066, 89 N.M. 379, 552 P.2d 1227, cert. denied, 90 N.M. 8, 558 P.2d 620. Testimony about the victim's death based on an autopsy report prepared by a non-testifying medical examiner. - Allowing an expert to testify based on information in the autopsy report of another analyst, assuming the autopsy report itself is not introduced into evidence is not a per se violation of the Confrontation Clause. Until the expert testimony crosses the line from the formation of an independent opinion based on underlying raw data to a reliance on the conclusions and opinions of the author of the autopsy report or a mere parroting of the report's findings, the testimony is admissible subject to the rules of evidence. State v. Gonzales, 2012-NMCA-034, 274 P.3d 151. Where the state called an expert witness to testify about the circumstances of the victim's death; the witness did not perform the autopsy on the victim or prepare the autopsy report; and the state told the court that the state did not intend to offer the autopsy report into evidence, that the witness would not rely on the conclusions or opinions of the forensic pathologist who prepared the autopsy report, and that the witness would rely on the witness's review of photographs of the body and other raw data, if the witness offered the witness' own opinions and conclusion as an expert witness and avoided parroting the testimonial statements of the forensic pathologist who prepared the autopsy report, then the witness' testimony would not run afoul of defendant's right to confrontation. State v. Gonzales, 2012-NMCA-034, 274 P.3d 151. Where expert did not adopt hearsay evidence as necessarily true statement of what occurred, the court did not agree that reversible error was committed by admitting the hearsay evidence of factory procedures and the expert's recital of his basis for refusing to make a conclusion which he did not feel was justified. Herrera v. Springer Corp., 1976-NMCA-015, 89 N.M. 45, 546 P.2d 1202, cert. denied, 89 N.M. 206, 549 P.2d 284. Expert testimony concerning tests done at accident site is admissible and competent. Harrison v. ICX, Illinois-California Express, Inc., 1982-NMCA-089, 98 N.M. 247, 647 P.2d 880. Testimony of duly qualified expert as to speed, based on skid marks, is admissible. Alford v. Drum, 1961-NMSC-048, 68 N.M. 298, 361 P.2d 451. New Mexico law sanctions expert testimony regarding vehicle speed when such testimony is based on an interpretation of skid marks. Roberts v. Sparks, 1982-NMCA-171, 99 N.M. 152, 655 P.2d 539. Mathematical odds are not admissible as evidence to identify defendant in a criminal proceeding so long as the odds are based on estimates, the validity of which have not been demonstrated. State v. Sneed, 1966-NMSC-104, 76 N.M. 349, 414 P.2d 858. Medical opinion letter should not have been admitted to show basis of expert's opinion where expert testified, not that he relied on the letter, but that he had already formed his opinion before he read the letter. Sewell v. Wilson, 1984-NMCA-022, 101 N.M. 486, 684 P.2d 1151. Discussion of article admissible. - A biomechanical engineer who qualified as an expert witness could discuss a medical article related to his testimony on the causation of temporomandibular injuries. Baerwald v. Flores, 1997-NMCA-002, 122 N.M. 679, 930 P.2d 816. Inadmissibility of polygraph tests without stipulation violates due process. - The rule that polygraph test results are inadmissible except when, inter alia, the tests are stipulated to by both parties to the case and no objection is offered at trial is: (1) mechanistic in nature; (2) inconsistent with the concept to due process; (3) repugnant to the announced purpose and construction of the Rules of Evidence; and (4) particularly incompatible with the purposes and scope of Rules 11-401, 11-402, 11-702 and 11-703 NMRA. State v. Dorsey, 1975-NMSC-040, 88 N.M. 184, 539 P.2d 204. Law reviews. - For article, "The Admissibility of Scientific Evidence Under the New Mexico and Federal Rules of Evidence," see 6 N.M.L. Rev. 187 (1976). For article, "Survey of New Mexico Law, 1979-80: Evidence," see 11 N.M.L. Rev. 159 (1981). Am. Jur. 2d, A.L.R. and C.J.S. references. - 31A Am. Jur. 2d Expert and Opinion Evidence § 1 et seq. Admissibility of X-ray report made by physician taking or interpreting X-ray pictures, 6 A.L.R.2d 406. Admissibility of hearsay evidence as to comparable sales of other land as basis for expert's opinion as to land value, 12 A.L.R.3d 1064. Air pollution: evidence as to Ringelmann chart observations, 51 A.L.R.3d 1026. Admissibility on issue of sanity of expert opinion based partly on medical, psychological, or hospital reports, 55 A.L.R.3d 551. Admissibility and weight of voiceprint evidence, 97 A.L.R.3d 294. Admissibility, in criminal case, of results of residue detection test to determine whether accused or victim handled or fired gun, 1 A.L.R.4th 1072. Necessity of expert testimony to show malpractice of architect, 3 A.L.R.4th 1023. Admissibility at criminal prosecution of expert testimony on battering parent syndrome, 43 A.L.R.4th 1203. Admissibility, in criminal prosecution, of expert opinion allegedly stating whether drugs were possessed with intent to distribute - state cases, 83 A.L.R.4th 629. Admissibility of expert opinion stating whether a particular knife was, or could have been, the weapon used in a crime, 83 A.L.R.4th 660. Admissibility of testimony of expert as to basis of his opinion, to matters otherwise excludible as hearsay - State cases, 89 A.L.R.4th 456. What information is of type "reasonably relied upon by experts" within Rule 703, Federal Rules of Evidence, permitting expert opinion based on information not admissible in evidence, 49 A.L.R. Fed. 363. Necessity and admissibility, in federal trial, of expert or opinion testimony regarding use or reliability of hypnotically refreshed recollection, 50 A.L.R. Fed. 602. 23 C.J.S. Criminal Law § 1050 et seq.; 32 C.J.S. Evidence §§ 513, 528 et seq.