Law Lessons from STATE OF NEW JERSEY V. CURTIS DARYL COOPER, App. Div., A-3346-07T4, October 8, 2009:

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The Supreme Court has held that an expert may be required on cross-examination to disclose the underlying facts and data upon which the expert relied. State v. Pennington, 119 N.J. 547, 583 (1990); State v. Rose, 112 N.J. 454, 499-500 (1988); N.J.R.E. 705. This disclosure requirement extends to inadmissible evidence, including hearsay, upon which experts may rely if the evidence is “of a type reasonably relied upon by experts in a particular field in forming opinions upon the subject.” N.J.R.E. 703; State v. Spencer, 319 N.J. Super. 284, 299 (App. Div. 1999).

However, when the expert has not relied upon hearsay evidence in formulating an opinion, that evidence may not be utilized on cross-examination. Pennington, supra, 119 N.J. at 583.

To determine the existence of reliance, counsel can make inquiry of the expert. However, “in the face of a denial, [counsel] may not use the details of [the hearsay] as the basis of further cross-examination.” Ibid. Further, the mere fact that an expert has considered hearsay is insufficient to permit cross-examination when the expert has expressed his lack of reliance on that hearsay. Spencer, supra, 319 N.J. Super. at 300.

In circumstances in which an expert has substantively relied upon hearsay in formulating his opinion, the court has held that the “probative value of the [d]octor’s opinion will depend upon whether there is, from all the evidence in the case, independent proof of the statement made by the accused.” Vandeweaghe, supra, 351 N.J. Super. at 480-81; see also State v. Farthing, 331 N.J. Super. 58, 78 (App. Div.), certif. denied, 165 N.J. 530 (2000).

However, the court has also held that a

proponent should not elicit hearsay evidence that he or she is not prepared to prove substantively” and, if proof is lacking, the judge should consider excluding the evidence under N.J.R.E. 403 because, in the absence of substantive proof, its probative value is substantially diminished by the risk of undue prejudice given the constitutional implications. Once the jury has heard the hearsay, it is very difficult to unring the bell with a cautionary instruction that the weight of the expert’s opinion is dependent upon the facts upon which it is based.

[Vandeweaghe, supra, 351 N.J. Super. at 482.]

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