Family Law Forensic Evaluations & The Hearsay Exception

Attorneys May Request Psychological Evaluations 

In addition to the Court’s prerogative, attorneys may retain psychologists to educate the court about the professional literature on a particular issue affecting the family or about practice methods of a proposed treatment remedy. Attorneys may also retain psychologists to conduct evaluations of their clients that may be used in court or that may help the attorney make more informed case decisions. Likewise, it is not uncommon for an attorney to retain a non-testifying psychologist (a consulting-only expert) for the purposes of refuting either a Court appointed psychologist or a testifying psychologist retained by an opposing counsel. A consulting-only psychologist can often help plan for jury selections, and for the examination of witnesses. In summary, psychologists in family law will find themselves testifying or working with lawyers generally in the following circumstances: i) Court Appointed Testifying Expert; ii) Attorney Selected Testifying Expert; or iii) Attorney Selected Consulting-Only Non-Testifying Expert.

Hearsay Exception And The Family Law Psychologists/Therapists

The family law practitioner can sometimes use what would normally be excluded as “hearsay evidence”. As example, the plaintiff in Sosa v. Koshy, 961 S.W.2d 420, 423 (Tex.App.–Houston [1st Dist.] 1997, pet. denied), was hit by a car in a restaurant parking lot. Litigation was brought against McDonald’s for her injuries as well as the driver. Id. Pasadena police officer Steven Null was called as a witness, the officer who investigated the accident, to testify in an expert capacity as to accident reconstruction. During the trial, the officer testified concerning reports given to him by unidentified declarants at the scene of the accident.  Although the plaintiff objected to the testimony as hearsay, the evidence was admitted over such objection. The Appellate Court concluded that the testimony of Officer Null was in the capacity of an expert on accident reconstruction. It further opined that “the Rules of Civil Evidence provide that an expert may rely on inadmissible evidence, and may disclose the basis for his opinion.”

“The facts or data in the particular case upon which an expert bases an opinion or inference may be those perceived by, reviewed by, or made known to the expert at or before the hearing. If of a type reasonably relied upon by experts in a particular field in forming opinions or inference upon the subject, the facts or data need not be admissible in evidence.” TEX. R. EVID. 703. (emphasis added).

Use Of An Expert Opinion in Court

An expert may form opinions or make inferences on facts that are not otherwise admissible into evidence if those facts are of the kind reasonably relied upon by experts in the field. TEX. R. EVID. 703; Stam v. Mack, 984 S.W.2d 747, 750 (Tex. App.--Texarkana 1999, no pet.); Sosa ex rel. Grant v. Koshy, 961 S.W.2d 420, 427 (Tex. App.--Houston [1st Dist.] 1997, no pet.).

An expert may testify regarding the underlying facts and data supporting an expert opinion. Stam, 984 S.W.2d at 750; Sosa, 961 S.W.2d at 427.  And the expert may testify in terms of opinion or inference and give the expert’s reasons therefore without prior disclosure of the underlying facts or data, unless the court requires otherwise.

The expert may in any event disclose on direct examination, or be required to disclose on cross-examination, the underlying facts or data. TEX. R. EVID. 705(a) (emphasis added). The court held that under rules 703 and 705 an expert witness could: rely on hearsay evidence to reach a conclusion and testify about the basis for his conclusions.

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