Federal Rule of Evidence 703: The Back Door and the Confrontation Clause, Ten Years Later

Federal Rule of Evidence 703 allows experts to form opinions using information that is not admitted at trial, and even on evidence that is inadmissible. In 2000, Rule 703 was amended to emphasize that it did not serve as an exception to the other rules of evidence. When experts rely on inadmissible evidence, the evidence can only be disclosed for the limited purpose of assisting the jury to evaluate the expert’s opinion, and only if the probative value of the evidence substantially outweighs its prejudicial effect. This Note reviews the application of Rule 703 before and after the 2000 amendment. It finds that disclosure of inadmissible evidence should still be expected in a substantial number of cases, but nevertheless concludes that the compromise approach struck by amended Rule 703 is largely correct. Courts should, however, weigh the strong possibility that limiting instructions under Rule 703 will often be ineffective (and logically impossible), and reduce disclosure accordingly.