Debate concerning the limits of judicial power over expert witnesses remains active and in its early stages. Commentators charting the course of judicial opinions observe that some of the modem regulatory proposals have yet to enlist official adoption. Part of the problem may relate to recognition of questions. Courts will adjudicate critical issues only when they are made aware of them. The burden of calling attention to an expert's flawed bases falls squarely on trial lawyers who must make astute and incisive objections.
In this formative period of legal development important decisions will be made. The future direction of courtroom control over the burgeoning onslaught of expert opinion will be shaped in the years immediately ahead. For this reason, it is vital that the aforementioned debate continue. Positions previously advanced need to be refined and reiterated. Courts should be alerted to the issues. As judges become aware of significant questions--questions which are sometimes subtly lodged in the tangle of an appellate record-information about how to resolve them needs to be readily at hand.
Into this uncertain world Professor Imwinkelried's article comes, and it makes a worthwhile contribution. Imwinkelried's focus on Federal Rule of Evidence 703 is rightly directed. That rule, like no other, will control most of the future development of expert witness law. Rule 703 is at the core of significant inquiries which confront our courts. Can the expert's proponent formally introduce the hearsay reports upon which an expert relies to supply his courtroom opinion? Is a trial judge precluded from testing the credibility of the underlying data the expert used to reach her conclusions? Imwinkelried raises these questions, and they will be the targets of this commentary as well.
Ronald L. Carlson, Experts, Judges, and Commentators: The Underlying Debate About an Expert's Underlying Data, 47 Mercer L. Rev. 481 (1996).