March 28, 2002


1999-10                                      

Proposed Amendments of
Rules 703 and 1101 of the 
Michigan Rules of Evidence
__________________________

          On order of the Court, this is to advise that the Court
is considering amendments of Rules 703 and 1101 of the Michigan
Rules of Evidence.  Before determining whether the proposals
should be adopted, changed before adoption, or rejected, this
notice is given to afford interested persons the opportunity to
comment.  The Court welcomes the views of all who wish to address
the form or the merits of the proposals or to suggest
alternatives.  Before adoption or rejection, the proposals will
be considered by the Court at a public hearing.  Notice of future
public hearings will be provided by the Court and posted on the
Court's website, www.courts.michigan.gov/supremecourt.

          Publication of these proposals does not mean that the
Court will issue an order on the subject, nor does it imply
probable adoption of the proposals in their present form.

           [The present language of Rules 703 and 1101
 would be amended as indicated below.]

Rule 703  Bases of Opinion Testimony by Experts

                      [Alternative A]

     The facts or data in the particular case upon which an
expert bases an opinion or inference [may be those perceived
by or made known to the expert at or before the hearing]
shall be in evidence. [The court may require that
underlying facts or data essential to an opinion or inference be
in evidence.] This rule does not restrict the discretion
of the court to receive expert opinion testimony subject to the
condition that the factual bases of the opinion be admitted in
evidence thereafter.


                      [Alternative B]

     [The facts or data in the particular case upon which an
expert bases an opinion or inference may be those perceived by or
made known to the expert at or before the hearing.  The court may
require that underlying facts or data essential to an opinion or
inference be in evidence.]

(a)     Except as otherwise provided in subrule (b),
the facts or data in the particular case upon which an expert
bases an opinion or inference must be admissible and admitted in
evidence.

(b)     If the court finds that the proponent of an
expert opinion or inference has shown that there is no good-faith
basis for contesting the truth or accuracy of specified
inadmissible or unadmitted facts or data in the particular case,
the court may admit an expert opinion or inference that is based
on those facts or data.  The proponent may not disclose the
inadmissible or unadmitted facts or data to a jury.  If the court
is the finder of fact, the court may consider those facts or data
only for the purpose of determining whether the required
threshold is established.


Staff Comment:  Alternative A was published for comment
previously on October 10, 2000.  It was recommended by the
Advisory Committee on the Rules of Evidence, which envisioned it
as a stand-alone rule.  Alternative B and the proposed amendment
of MRE 1101 that follows this comment were drafted in response to
comments that the Court received following that first
publication.  The proposed amendment of MRE 1101 is designed to
complement either proposal for MRE 703.

Both alternatives for MRE 703 would correct a common misreading
of the current rule.  As adopted in 1978, MRE 703 said, "The
court may require that the underlying facts or data essential to
an opinion or inference be in evidence."  That language was
designed to give courts the discretion to exclude opinions that
are not based on admissible evidence.  However, the rule came to
be understood as allowing an expert to testify about inadmissible
hearsay that was part of the basis for the expert's opinion.

Alternative A would allow the introduction of an expert's opinion
only if that opinion is based exclusively on evidence that has
been introduced into evidence in some way other than through the
expert's hearsay testimony.  That was the pre-MRE common-law
rule.  Much of the inconvenience that accompanied the common-law
rule has been ameliorated by newer hearsay exceptions, including
MRE 803(6) and (24), MRE 804(b)(6), and MRE 902(11).  

Alternatives A and B retain the current rule's reference to the
facts or data "in the particular case," i.e., neither the current
rule nor these proposed amendments require independent proof of
the sources of knowledge that qualify the witness as an expert. 

Alternative B's first paragraph states the general principle that
the expert's opinion may not be admitted unless it is based on
facts or data that have been properly introduced into evidence. 
The second paragraph creates a limited exception that allows
admitting an opinion that is based on hearsay, provided there is
no good-faith basis for contesting the truth or accuracy of the
hearsay.  However, even when the exception allows the opinion to
be introduced, the proponent of the opinion may not disclose the
unadmitted supporting facts or data to a jury.  In a case tried
without a jury, the court may consider the facts or data only to
determine whether the proponent has made the required threshold
showing.

Whenever possible, decisions about whether an opinion will be
admitted pursuant to subrule (b) of Alternative B should be made
in pretrial rulings.  The court may require the parties to file
motions, responses, and supporting affidavits in which the
proponent discloses the factual basis for an opinion and the
opponent states any challenges to the truth of that factual
basis.  MCR 2.114 applies to the documents that are filed to
disclose or challenge an opinion's factual basis.



Rule 1101   Applicability

(a)  [Unchanged.]

(b)  Rules inapplicable.  The rules other than those with respect
to privileges do not apply in the following situations and
proceedings:

     (1)-(8)  [Unchanged.]

     (9)     Domestic Relations Matters.  The court's
consideration of a report or recommendation submitted by the
friend of the court pursuant to MCL 552.505(d) or (e).

    (10)     Mental Health Hearings.  In preliminary
hearings under Chapters 4, 4A, 5 and 6 of the Mental Health Code,
MCL 330.1400 et seq., the court may consider hearsay data that
are part of the basis for the diagnosis presented by a testifying
mental health expert.


Staff Comment:  The proposed new subrules (b)(9) and (10)
would complement either of the MRE 703 proposals published in
this order.  When the MRE 703 (Alternative A) proposal was
published previously, family law practitioners commented that
mental health experts who perform custody evaluations must base
their opinions, to some extent, on hearsay information.  Several
probate judges commented that statutory deadlines for conducting
preliminary mental health commitment proceedings require judges
to rely on expert opinions that are based on some hearsay.  This
proposal addresses those concerns.  Proposed Subrule (b)(9) would
allow a trial judge to consider the Friend of the Court report
prepared pursuant to MCL 552.505(d) or (e).  Those reports "may
include reports and evaluations by outside persons or agencies if
requested by the parties or the court . . . ."  Proposed subrule
(b)(10) allows probate judges who are conducting preliminary
mental health hearings to consider expert opinions that otherwise
would be excluded by Rule 703 because the opinions are based on
hearsay information.

Although these proposals may be modified before adoption, it is
anticipated that MRE 1101(b) will be amended if the Court adopts
either proposed alternative amendment of Rule 703.

The staff comment is published only for the benefit of the bench
and bar and is not an authoritative construction by the Court.  


          A copy of this order will be given to the secretary of
the State Bar and to the State Court Administrator so that they can
make the notifications specified in MCR 1.201.  Comments on these
proposals may be sent to the Supreme Court clerk in writing or
electronically by July 1, 2002.  P.O. Box 30052, Lansing, MI 48909,
or MSC_clerk@jud.state.mi.us.  When filing a comment, please refer
to file 1999-10.