N.M. R. Evid. 11-705
Unless the court orders otherwise, an expert may state an opinion - and give the reasons for it - without first testifying to the underlying facts or data. But the expert may be required to disclose those facts or data on cross-examination.
N.M. R. Evid. 11-705
Committee commentary. - The language of Rule 11-705 NMRA was amended in 2012 to be consistent with the restyling of the Federal Rules of Evidence, effective December 1, 2011, to make them more easily understood and to make style and terminology consistent throughout the rules. These changes are intended to be stylistic only. There is no intent to change any result in any ruling on admissibility.
The committee deleted all reference to an "inference" on the grounds that the deletion made the rule flow better and easier to read, and because any "inference" is covered by the broader term "opinion." Courts have not made substantive decisions on the basis of any distinction between an opinion and an inference. No change in current practice is intended.
[Adopted by Supreme Court Order No. 12-8300-015, effective for all cases pending or filed on or after June 16, 2012.]
ANNOTATIONS The 2012 amendment, approved by Supreme Court Order No. 12-8300-015, effective for all cases pending or filed on or after June 16, 2012, modified the title of the rule and rewrote the rule to make stylistic changes, including the deletion of references to "inference". The 1993 amendment, effective December 1, 1993, in the first sentence, substituted "give reasons" for "give his reasons" near the beginning, substituted "first testifying to" for "prior disclosure of" near the middle, and substituted "court" for "judge" near the end. Compiler's notes. - This rule is similar to Rule 705 of the Federal Rules of Evidence. Outside opinions inadmissible when expert does not rely thereon. - In personal injury case, where plaintiff, in cross-examination of defendant's doctors, got admitted in evidence the medical opinions of two absent doctors, there was no evidence that defendant's doctors had relied on the opinions, and the argument that the opinions were admissible because they could bring out that defendant's doctors had rejected the opinions was without merit and was considered a back door ruse to introduce inadmissible testimony. Wilson v. Leonard Tire Co., 1976-NMCA-111, 90 N.M. 74, 559 P.2d 1201, cert. denied, 90 N.M. 9, 558 P.2d 621. Facts not relied upon by expert. - The trial court did not err in disallowing the defendant's cross-examination of pathologist regarding the victim's blood alcohol content, where the pathologist testified that she had arrived at her conclusions and completed the victim's death certificate without waiting for a toxicology report. State v. Wildgrube, 2003-NMCA-108, 134 N.M. 262, 75 P.3d 862, cert. denied, 134 N.M. 179, 74 P.3d 1071. Experts must satisfactorily explain steps followed in reaching conclusion; without such an explanation the opinion is not competent evidence. Four Hills Country Club v. Bernalillo Cnty. Prop. Tax Protest Bd., 1979-NMCA-141, 94 N.M. 709, 616 P.2d 422. An expert is not incompetent and impermissibly speculative as lacking a factual basis where the expert gives a satisfactory explanation as to how he arrived at his opinion. Harrison v. ICX, Illinois-California Express, Inc., 1982-NMCA-089, 98 N.M. 247, 647 P.2d 880. Testing basis of expert's opinion. - An expert is not to be sheltered from a testing of the basis of his opinion; rather, such a testing is expressly authorized. Jaramillo v. Fisher Controls Co., 1985-NMCA-008, 102 N.M. 614, 698 P.2d 887. Expert's failures of consideration destroy weight of opinions. - An expert appraiser's blanket acceptance of hearsay information and his failure to consider influencing facts in so-called "comparable sales" all but destroys any weight that might be given to his opinions. Four Hills Country Club v. Bernalillo Cnty. Prop. Tax Protest Bd., 1979-NMCA-141, 94 N.M. 709, 616 P.2d 422. Could ask experts whether they used collateral offenses in evaluation. - Prior to enactment of rules of evidence, it was not error to allow prosecution to ask experts who administered certain deception tests (polygraph, hypnosis, sodium amytol) whether they had been informed of certain collateral offenses committed by defendant and how they had evaluated such information in reaching their conclusions concerning defendant's guilt or innocence. State v. Turner, 1970-NMCA-054, 81 N.M. 571, 469 P.2d 720. Permitting hypothetical question, and admitting answer, within court's discretion. - Permitting a hypothetical question to an expert witness and admitting the answer, pursuant to this rule, is within the discretion of the trial court. State v. Johnson, 1983-NMSC-043, 99 N.M. 682, 662 P.2d 1349. As a general rule, hypothetical questions must be based on facts in evidence or upon evidence which the propounding attorney assures the court will be admitted into evidence. Sutherlin v. Fenenga, 1991-NMCA-011, 111 N.M. 767, 810 P.2d 353. Physician's testimony that future medical treatment "fairly likely" admissible as to damages. - Where physician testified that future medical treatment was "fairly likely," his testimony was properly admitted on damages issue and would support, when taken as a whole, a finding that such treatment was medically probable. Regenold v. Rutherford, 1984-NMCA-021, 101 N.M. 165, 679 P.2d 833. Preservation of error. - If an attorney does not present evidence to support a hypothetical question, the opposing party must move to strike the answer in order to preserve the error for review. Sutherlin v. Fenenga, 1991-NMCA-011, 111 N.M. 767, 810 P.2d 353. Issue waived for appeal. - Where defendant's expert witness relied on defendant's custodial statement in forming his opinion and, without objecting, defendant conceded that the state could cross-examine his expert witness with the custodial statement and defendant did not object when the state proceeded with the cross examination as previously agreed, and defendant relied on portions of the statement in cross-examining the state's expert witness, defendant waived this issue for purposes of appeal. State v. Mireles, 2004-NMCA-100, 136 N.M. 337, 98 P.3d 727, cert. denied, 2004-NMCERT-008. Law reviews. - For article, "The Admissibility of Scientific Evidence Under the New Mexico and Federal Rules of Evidence," see 6 N.M.L. Rev. 187 (1976). For article, "Evidence," see 12 N.M.L. Rev. 379 (1982). Am. Jur. 2d, A.L.R. and C.J.S. references. - 31A Am. Jur. 2d Expert and Opinion Evidence § 1 et seq. Presumption and burden of proof of accuracy of scientific and mechanical instruments for measuring speed, temperature, time, and the like, 21 A.L.R.2d 1200. Modern status of rules regarding use of hypothetical questions in eliciting opinion of expert witness, 56 A.L.R.3d 300. Necessity of expert testimony to show malpractice of architect, 3 A.L.R.4th 1023. Products liability: admissibility of expert or opinion evidence that product is or is not defective, dangerous, or unreasonably dangerous, 4 A.L.R.4th 651. Admissibility at criminal prosecution of expert testimony on battering parent syndrome, 43 A.L.R.4th 1203. Right of independent expert to refuse to testify as to expert opinion, 50 A.L.R.4th 680. Admissibility, in criminal prosecution, of expert opinion allegedly stating whether drugs were possessed with intent to distribute - state cases, 83 A.L.R.4th 629. Admissibility of expert opinion stating whether a particular knife was, or could have been, the weapon used in a crime, 83 A.L.R.4th 660. Necessity and admissibility, in federal trial, of expert or opinion testimony regarding use or reliability of hypnotically refreshed recollections, 50 A.L.R. Fed. 602. 23 C.J.S. Criminal Law § 1050 et seq.; 32 C.J.S. Evidence §§ 528 et seq., 696.