United States v. Pablo

625 F.3d 1285 (10th Cir. 2010)



Fed. R. Evid. 703 authorizes an expert to testify to an opinion she formed even if she based that opinion on otherwise inadmissible facts or data, which at times may include out-of-court testimonial statements.  Such hearsay is admitted for the limited purpose of informing the jury of the basis of the expert's opinion, not for proving the truth of the matter asserted. Therefore, where an expert witness discloses otherwise inadmissible out-of-court testimonial statements on which she based her opinion, the admission of those testimonial statements under Rule 703 typically will not implicate a defendant's confrontation rights because the statements are not admitted for their substantive truth. 


This appeal arises out of Jonathan Pablo's conviction by a jury for vaginal rape, kidnapping, assault resulting in serious bodily injury, and carjacking. Pablo was tried with a codefendant, Isaac Gordo, whom the jury convicted on similar counts. On Pablo's appeal, he raised three challenges to his convictions: (1) that the district court deprived him of his confrontation rights under the Sixth Amendment by admitting testimony of a DNA expert, who relied on reports prepared by analysts not called to testify and conveyed the contents of those reports to the jury; (2) that the prosecutor and district court impermissibly interfered with his right to present a defense by raising the specter of self-incrimination to dissuade two defense witnesses from testifying; and (3) that the district court erred by excluding certain evidence under Federal Rule of Evidence 412.


Does Fed. R. Evid. 703 allow an expert to testify to an opinion that was formed on otherwise inadmissible data, which could include out-of-court testimonial statements?




The court of appeals found no plain error. Fed. R. Evid. 703 allowed an expert to testify to an opinion that was formed on otherwise inadmissible data, which could include out-of-court testimonial statements. Because the DNA and serology reports were not part of the record, it could not be determined that the testimony parroted the reports. The prosecution did not improperly dissuade two defense witnesses from testifying by raising the potential for self-incrimination, and the district court responded properly by informing the witnesses of the Fifth Amendment privilege, which they invoked after conferring with independent counsel. Evidence alleging that the victim was seen partially undressed with two other men on the night of the rape and made sexual advances toward the co-defendant was properly excluded under Fed. R. Evid. 412.

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