Predicate Perplexity: The Case of 'Floyd Y.'
Whenever an expert testifies one of the most crucial issues is whether his or her opinion rests upon a permissible basis. Evidence law permits certain types of bases and disallows others. If the expert runs afoul of the rules, the opinion is inadmissible. One permissible basis is the so-called "professional hearsay" predicate. Hearsay reliance presents two issues: First, does the reliance on hearsay render the opinion inadmissible? Second, assuming that the opinion is admissible can the expert inform the fact-finder of the content of the out-of-court statements upon which the witness relied? The matrimonial practitioner confronts these issues at every turn when such experts as business valuators and forensic custody evaluators take the stand.
A bit over seven years ago it was suggested in this column that the Court of Appeals seemed to be inviting a case that would offer them the opportunity to address the second of these issues.1 In State v. Floyd Y.2 the court found such a case. The judges rolled up their sleeves and went to work in an effort to unravel what might well be called the Gordian knot of evidence doctrine. The complexity of the issues presented finds testament in the fact that the court was unable to speak in a single voice. There is a five-judge majority opinion and a two-judge concurrence. The opinions are lengthy and labyrinthine. As will be seen, the majority opinion is particularly opaque and does more to confuse than to clarify the issues. The concurrence comes closer to the mark but itself comes up a bit short.
This is not the first article to address the Floyd Y. decision3 and, given its importance, it is not likely to be the last.4 Indeed, given the length and density of the opinions at hand, analysis here will be broken into two articles. This article will set forth the relevant facts of the case, the legal context of the issues, and provide a bird's eye view of the court's work product. A future article will delve more deeply into the inherent conundrum created by the professional hearsay predicate itself.
Facts of the Case
Floyd Y., hereafter referred to as "respondent," was sentenced to imprisonment upon conviction of multiple counts of sexual abuse and child endangerment. While incarcerated, he was transferred to a psychiatric facility where he was diagnosed and treated for various mental disorders, including pedophilia. Prior to his release date, the state filed a civil management petition pursuant to Article 10 of the Mental Hygiene Law,5 a procedure that can result in an order of involuntary and indefinite confinement.6
At a jury trial the state presented, over objection,7 the testimony of two mental health experts. Both relied on out-of-court statements by declarants who did not testify at the trial. These out-of-court statements included nine victim accusations of sexual abuse, some of which resulted in convictions or admissions of guilt, one of which did not lead to a formal charge, and one of which resulted in acquittal.8
Given the experts' reliance on out-of-court statements the court had two questions before it: (1) should the expert's opinion itself have been ruled inadmissible because of that reliance, and (2) if the opinion were deemed admissible, to what extent, if at all, should the experts have been permitted to inform the fact-finder of the content of the out-of-court statements upon which they relied?
The Legal Context
To appreciate fully the import of the Floyd Y. decision requires an understanding of the history underlying the professional hearsay predicate.9 Here, two core principles of evidence doctrine intersect and potentially conflict. The first evidentiary principle is as long-established as it is axiomatic: The fact-finder must know all of the predicate "facts" that the expert assumed to be true if the fact-finder is to evaluate the expert's opinion intelligently.10 The second evidentiary principle relevant to analysis is the iconic hearsay rule: Evidence should not be placed before the fact-finder unless its reliability can be tested through cross-examination or otherwise falls within an established hearsay exception.
Common law accommodated both precepts quite effectively by confining the expert to reliance on only two types of predicate facts: (1) facts that reposed in the expert's personal knowledge; and/or (2) facts in evidence.11 In New York, this is known as the Keough Rule.12 Indeed, under the Keough rule there was really only one permissible predicate, namely facts in evidence, because the law required that where the witness relied upon personal knowledge, that knowledge had to be spread upon the record before the resulting opinion would be allowed.13 Accordingly, if the expert's opinion rested on anything other than record evidence the opinion was not admissible. The expert could not base the opinion on hearsay unless that hearsay qualified for independent admission under an established hearsay exception.
The common law mechanism that enforced this hearsay ban was the hypothetical question. The proponent of the opinion was required to feed the predicate "facts" to the expert in hypothetical form: "Doctor, please assume facts A, B, C, D and E." If any one of those predicate facts were not in evidence, the question was objectionable.14 The virtue of the hypothetical question was that it afforded the opportunity to make timely objection to prevent the trier of fact from hearing an opinion that rested on hearsay. Critics, however, saw its vice in the fact that it was at times cumbersome and time-consuming in execution and because skilled trial lawyers could use it as something of a "free" mid-trial summation.
In the mid-1970s, the Federal Rules of Evidence expanded the bases upon which an expert might permissibly rely to include inadmissible out-of-court material if "experts in the particular field would reasonably rely on those kinds of facts or data in forming an opinion on the subject."15 Perhaps swept up in the liberalizing zeitgeist of the era New York set upon a similar path. In People v. Sugden16 the court relaxed the Keough rule in criminal cases. Ten years later, in Hambsch v. New York City Transit Authority,17 the court brought the liberalized approach to civil cases as well.
Hambsch, however, made clear that there were two foundational requirements to the professional hearsay predicate. The out-of-court material (1) must be "of a kind accepted in the profession as reliable in forming a professional opinion" and (2) "there must be evidence establishing the reliability of the out of court material."18 If the expert relies upon hearsay that is not deemed professionally reliable, the opinion is inadmissible unless the court, under the authority of People v. Stone,19 finds that the expert had a legally competent basis apart from the offending hearsay.
Significantly, the Hambsch court specifically cited Borden v. Brady,20 an Appellate Division decision which also made explicit that the professional reliability predicate is an exception only to the Keough rule; it is not an exception to the rule against hearsay. Even if the expert's reliance is customary in the field and even if there is independent evidence of reliability, the total effect of the professional hearsay predicate is that the expert's opinion is not rendered inadmissible. The expert's reliance on out-of-court material does not, however, render that material admissible; it remains inadmissible hearsay.
The Majority Opinion
In Floyd Y., all seven judges of the court agreed that reversal was required, though different rationales were proffered. The majority neither analyzed nor even cited the touchstone precedents found in Sugden, Hambsch, and their progeny. Instead, it held that even in a civil proceeding the constitutional guarantee of due process requires that all evidence meet "a minimum standard of reliability."
The majority found it acceptable to inform the jury of the content of the out-of-court statements with respect to charges that had resulted in a criminal adjudication of guilt. The allegation that was supported by respondent's admissions was likewise deemed sufficiently reliable to comport with due process. The accusation that had resulted in acquittal and the one that had not resulted in formal charges, however, did not carry sufficient indicia of reliability and, therefore, their disclosure to the jury by the experts was a denial of due process requiring reversal.