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Rule 703 embodies a tension between letting experts do their jobs of gathering information and forming opinions and limiting disclosure of what<\/em> information the experts gathered.<\/p>\n Experts who are good go to lots and lots of sources before they reach a conclusion.\u00a0 And this is encouraged under Rule 703, as long as those sources are ones \u201cexperts in the particular field would reasonably rely on those kinds of facts or data in forming an opinion on the subject\u2026\u201d\u00a0 Rule 703, Fed.R.Evid.<\/p>\n So in part this is a \u2018trust the expert\u2019 rule.\u00a0 Experts help educate judges as to what sources of information are reasonably <\/em>relied upon in the particular field; and judges then decide whether to accept that claim.\u00a0 Judges do so under their Rule 104(a) decision-making authority.<\/p>\n But what an expert may rely upon is different from what an expert may repeat in court when explaining the opinion.\u00a0 Here is where Rule 703\u2019s language, and the Amendment to the Rule in 2000, becomes important.\u00a0 703 first provides language about reliance:<\/p>\n 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.<\/em><\/p>\n Rule 703 (emphasis added).\u00a0 In other words, in most<\/em> instances, the side opposing an expert can\u2019t object and seek to exclude an opinion because the expert used inadmissible evidence to reach the conclusion.\u00a0\u00a0 The opinion <\/em>\u00a0is still admissible.\u00a0 Thus, the opinion that \u201cthe patient suffered from a form of cancer that could have been treated\u201d or \u201cthe conditions in the store were unsafe for young children\u201d is admissible even if the expert relied to some extent on evidence that itself is not admissible at trial.<\/p>\n [The rare instance in which the entire opinion will be excluded occurs when the only information relied upon is inadmissible hearsay and that inadmissible evidence is the sole proof of the underlying fact.\u00a0 For example, in Turner v. Burlington N. Santa Fe R.R.<\/u>, 338 F.3d 1058, 1060 (9th Cir. 2003) an arson investigator was prepared to opine that a fire was intentionally started based upon a report that debris from the fire had gasoline in it.\u00a0 The lab analysis however was not admitted into the record and thus was inadmissible hearsay.\u00a0 The exclusion of the expert opinion<\/em> was upheld because the opinion had relevance only if the lab report was true.]<\/p>\n What is an example of evidence that may be relied upon but might not be admissible at trial?\u00a0 Suppose a psychologist was trying to learn whether a person had a severe learning disability.\u00a0 The expert might conduct tests on the subject, and because the expert personally administered those tests the expert would have personal knowledge and could describe them.\u00a0 But the same expert might also have interviewed former teachers and relatives of the subject.\u00a0 What each interviewee told the expert is information of a type \u201creasonably relied upon\u201d in the field of psychology, but each statement is inadmissible hearsay.\u00a0 The overall opinion \u2013 that the person did or did not have a disability \u2013 would be permissible even though it was based in part on hearsay interviews that themselves would be inadmissible at a trial.\u00a0 [Of course, if the teachers and relatives came to court and testified to their observations, there would be no inadmissible evidence.]<\/p>\n 703 also addresses whether the trier of fact \u2013 for all intents and purposes the jury \u2013 may hear\/read the inadmissible evidence.\u00a0 It provides that<\/p>\n 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.<\/p>\n Stated more simply, the expert may give the opinion but not the inadmissible evidence behind it unless giving the jury that information is necessary to understand how the expert reached the conclusion and<\/em> if doing so substantially<\/em> outweighs the prejudice of letting the jury hear or read assertions that cannot be cross-examined or otherwise tested for truth and accuracy.<\/p>\n The NOTE to the 2000 Amendment to Rule 703 makes this clear \u2013 \u201cRule 703 has been amended to emphasize that when an expert reasonably relies on inadmissible information to form an opinion or inference, the underlying information is not admissible simply because the opinion or inference is admitted.\u201d<\/p>\n So how does is this intended to work?\u00a0 Using the psychologist example above, the expert may testify as follows:<\/p>\n Q:\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 Did you form an opinion as to whether X has a learning disability?<\/p>\n A:\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 Yes.<\/p>\n Q:\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 And does X have that disability?<\/p>\n A:\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 Yes.\u00a0 A severe one.<\/p>\n Q:\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 Tell us what information you relied on to form that opinion?<\/p>\n A:\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 I administered two intelligence tests, and the results were\u2026<\/p>\n Q:\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 Is that the only information you relied on?<\/p>\n A:\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 No.<\/p>\n Q:\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 What else did you consider?<\/p>\n A:\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 I interviewed teachers and relatives of X.<\/p>\n Q:\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 And based on all of those sources, the two tests and the interviews, what is the conclusion?<\/p>\n A:\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 X has a severe learning disability.<\/p>\n This examination conforms with Rule 703.\u00a0 The inadmissible evidence may be disclosed only if a judge determines that the jury must hear\/see what information relied on to make the direct examination and opinion comprehensible, and then only with a jury instruction that the evidence is not being introduced for the jury to treat as a true fact in the case but only to explain that this information is what this expert used for formulating the opinion.<\/p>\n This would look like the following:<\/p>\n Q:\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 What else did you consider?<\/p>\n A:\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 I interviewed teachers and relatives of X.<\/p>\n Q:\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 What did they tell you?<\/p>\n BY THE COURT:\u00a0 Members of the jury, what other people told the psychologist is what we call hearsay.\u00a0 There is no proof that what they said is in fact accurate \u2013 it may be, it may not be, we just don\u2019t know.\u00a0 They are not here to be asked questions.\u00a0\u00a0 So you can\u2019t assume that what they said is true \u2013 but you may hear it now just to understand what information the psychologist relied on and how the psychologist made this conclusion.\u00a0 Now, you may answer the question.<\/p>\n A:\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 The teachers told me about difficulties with reading and remembering, and relatives told me stories about how the subject often could not perform basic tasks like addition or subtraction.<\/p>\n