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December 21, 2005

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Michael Hutter

The Court was wrong when it stated that the NY courts have not discussed the issue whether the facts/statements properly relied upon by an expert in rendering an opinion can be disclosed to the jury. The ADs have consistently and uniformly held that, at least in civil cases, they may not. See, Neumire, 291 ad2d 784;Schwartz v. Gerson, 246 ad2d 589. What is really an open issue is to what extent if any may the facts be disclosed and the courts' discretion on this issue. As Goldstein notes, this was decided by the amendment to FRE 703.

Nicole Black

Thanks for the information, Professor Hutter. I found it hard to believe that that NY courts had not yet addressed that issue, and almost said as much in my post, but decided to be a bit more judicious, since I hadn't actually researched the issue myself.

slickdpdxslickdpdx

Isn't it generally viewed as dangerous to mount a psych defense for this very reason (opening the door to counter-testimony that includes this kind of evidence)? That was my (apparently erroneous) understanding. Lucky thing I never had to face a real not guilty/insanity defense at trial, it seems I might have flubbed it!

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