'Floyd Y.': the Professional Reliability Basis for Expert Opinion

, New York Law Journal

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Michael J. Hutter

It is well settled that, to be admissible, expert opinion must be based upon facts. From where does the expert obtain those facts? New York law recognizes four sources: (1) facts personally known by the expert; (2) facts presented at trial and made known to the expert by means of a hypothetical question or the expert's attendance at the trial; (3) facts not presented at trial but obtained by the expert from a witness subject to cross-examination; and (4) facts obtained by the expert from out-of-court sources, provided such sources are of the kind accepted in the expert's profession as reliable in forming an opinion.1 The fourth source, properly called the "professional reliability" basis for expert opinion, was recognized by the Court of Appeals in People v. Sugden, 35 N.Y.2d 453 (1975), with the expressed goal of permitting an expert to base an opinion on evidentiary materials that were not admitted or even inadmissible at trial.2 Thus, an expert could rely on hearsay, unauthenticated documents or evidence barred by the character evidence rule, provided the facts so obtained were of a type reasonably relied upon by experts in the particular field.

Support for this basis was found in then proposed Federal Rule of Evidence 703 which contained such a basis. The drafters of FRE 703 justified it as nothing more than acceptance in the courtroom of what had long been the reality of what experts had been doing in their practice.3

Development of the professional reliability basis for expert opinion has had its ups and downs since Sugden, but mostly downs due to inconsistent and/or incomplete treatment by the courts.4 While the courts have sufficiently clarified the scope of the essential element of the basis, to wit, the material is "of the kind accepted in the profession as reliable in forming a professional opinion," and how that element is established,5 uncertainty existed as to the nature of the foundation requirement for it, to wit, reliability of the material relied upon, and the disclosure of the properly relied upon material. In a recent decision, Matter of State of New York v. Floyd Y., 2013 N.Y. Slip Op. 07653 (Nov. 19, 2013), the Court of Appeals in a decision written by Judge Jenny Rivera addressed these two issues, albeit indirectly. While Floyd Y. involved the presentation of expert opinion and its basis grounded in hearsay in the context of its admissibility against a due process challenge in a Mental Hygiene Law Article 10 proceeding,6 its discussion is clearly applicable to all trials where admissibility of expert opinion is predicated under New York common law. This column will address Floyd Y. in that context.

'Floyd Y.'

Floyd Y. was convicted of first degree sexual abuse and endangering the welfare of a child for molesting two children. After his sentence expired, the state filed a civil management petition under Article 10, alleging that he is a dangerous sex offender who should be confined in a secure treatment facility. At the Article 10 jury trial, the state called a psychologist, Dr. Mortiere, to testify that she had diagnosed Floyd with pedophilia and antisocial personality disorder and that she believed he had a high risk of offending. She also testified about the reports and records that formed the basis of her opinion, including hearsay statements from seven other victims of alleged sex offenses that were contained in affidavits or police reports.

Floyd pleaded guilty in three of those prior cases but four others, including an acquittal, did not result in a conviction. Dr. Mortiere testified that such reports and documents are heavily relied upon in her profession and are necessary to form an opinion as to whether a respondent suffers from a mental abnormality.7 The jury found that Floyd suffered from a mental abnormality and, after a dispositional hearing, Supreme Court determined that he is a dangerous sex offender requiring confinement.

The Appellate Division, First Department, affirmed in a comprehensive opinion written by Justice Rosalyn H. Richter, holding that most of Dr. Mortiere's testimony was properly admitted under the professional reliability basis rule. Matter of State of New York v. Floyd Y., 102 A.D.2d 80, 84-88 (1st Dept. 2012). According to the First Department, under that rule evidence that would otherwise be inadmissible as hearsay may nonetheless be considered by an expert in order to evaluate and reach a prognosis or opinion if it is the type of material "accepted in the profession as reliable in forming a professional opinion," so long as there is other evidence establishing the hearsay's reliability; and that disclosure of the basis is proper where barring the expert from discussing those materials in court "would significantly hinder the jury's ability to assess the expert testimony." Id. at 84, 85.

The First Department then examined the hearsay relied upon by Dr. Mortiere to determine whether it was reliable based on other evidence. Initially, it concluded that reliance upon victim statements contained in affidavits or incorporated into police reports was proper as well as reliance upon other information which came from police reports, guilty pleas, and conviction certificates as this type of material is deemed reliable. Id. at 85-86. The First Department then focused upon four acts referenced by Dr. Mortiere that did not result in a charge or conviction. Two of the uncharged accusations were found reliable because Floyd Y. admitted that one of the events happened, and the other was not prosecuted because, as a condition of dropping the charges against him, he signed a parole document promising to stay away from the young girl involved. Id. at 87. However, two of the unproven offenses were held to have been improperly relied upon by Dr. Mortiere "due to reliability issues and a need to put some limit on the hearsay information put before the factfinder," because Floyd Y. was acquitted in one case and was not charged in the other due to lack of sufficient evidence. Id. at 87.

With these reliability findings, the First Department then ruled that as to the materials deemed reliable Dr. Mortiere could inform the jury that she used them as a basis of her expert opinion, Id. at 86-89. As to the accusations of questionable reliability it was error to allow her to testify about them, but harmless error because the jury was told the allegations were unproven and they "represented only a small fraction of the evidence considered by the expert." Id. at 88.

The Court of Appeals reversed and ordered a new trial. Floyd Y., 2013 N.Y. Slip Op. 07653. The reversal was predicated on the court's view that as Floyd Y.'s liberty interests were at stake in his Article 10 proceedings, he was entitled to certain due process rights and one of those rights was a "requirement that evidence meet a test of reliability and substantial relevance." Id. at *8-9. Here, those rights were violated as Dr. Mortiere's testimony about uncharged allegations of sexual abuse committed by Floyd Y., which were not supported by extrinsic evidence or his own admissions and charged allegations of sexual abuse of which he was acquitted, was unreliable hearsay, the admission of which did not constitute harmless error. Id. at *11-12.

While the court in reversing did not rely on the common law professional reliability basis rule, which was the focus of the first Department's opinion, and in fact says little about that rule,8 the opinion nonetheless provides some guidance as to the application of the rule as its due process comments about unreliable hearsay are readily transferable to the rule.

Reliability Foundation

Court of Appeals' decisions following Sugden have held that the foundation for expert opinion relying on out-of-court material requires proof establishing that the material is reliable.9 Notably, there is no such foundation requirement under FRE 703. As has been observed: "All that must be shown [under FRE 703] is that the expert is relying on information that other experts would rely on; from this reliability is presumed."10 In this connection, New York's adoption of a strict foundation requirement has been criticized.11 Nonetheless, the requirement, based on the Court's view that "[r]eliability of the material is the touchstone," as evidenced by the court's reliance on Justice Paul Yesawich's concurring opinion in Borden v. Brady, 92 A.D.3d 983, 984 (3d Dept. 1983), in which he penned that phrase, has not been rejected.

While the lower courts have consistently enforced this foundation requirement,12 they have not provided much guidance as to how reliability is to be determined.13Floyd Y. provides some answers. Adopting in large part the analysis and conclusions of the First Department, the court emphasized the determination requires some independent basis establishing the reliability of the relied-upon material. Such basis can come from additional testimony, adjudications, admissions of a party or even an affidavit of a witness with knowledge. Id. at *11. The reliability factors to consider include whether the circumstances surrounding the making of the material bear some indicia of reliability such as whether the maker was under oath or acting under a duty to accurately report, record or convey information or the presence of corroborating proof circumstantial in nature. Id. at *11-12.14 Overall, the reliability proof need not be overwhelming as a "patina" of reliability may be sufficient. Id. at *11-12.

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