Concluding that the improper cross-examination of an expert witness probably contributed to Jimi James Hamilton’s conviction, the Washington Court of Appeals granted Hamilton a new trial. The conviction was Hamilton’s “third strike” under Washington law and therefore resulted in a life sentence.

Expert’s Testimony

Hamilton was charged with assaulting a corrections officer. His defense was based on the claim that he suffered from a mental disease or defect that diminished his capacity to form an intent to commit the crime. In support of that defense, Hamilton called Dr. Stuart Grassian as an expert witness.

Grassian’s testimony covered two issues. First, Grassian testified about the effect that solitary confinement has on prisoners, particularly when it is prolonged or repeated. In that regard, Grassian testified about the inadequate mental health services that are provided to prisoners in the Washington prison system.

Second, Grassian testified about mental illnesses from which Hamilton was suffering at the time he assaulted the prison guard. In particular, he opined that Hamilton suffered from a bipolar disorder with episodic periods of psychosis. He also testified about the impact those illnesses have on the decision-making process. Finally, he expressed the opinion that Hamilton was in a dissociative state at the time of the assault and lacked the capacity to form an intent to injure the guard.

Grassian formed his opinions about Hamilton’s mental health by interviewing Hamilton and his family members. Grassian also reviewed certain medical records, but he testified that the records were not well maintained and were not always coherent. He noted that certain opinions expressed in the records had no basis or were inadequately explained.

Cross-Examination of Expert

The prosecutor asked Grassian whether he relied on Hamilton’s medical records in forming his opinions. Grassian testified that he considered the records but did not rely upon them.

The prosecutor then used the records to impeach Grassian’s testimony. Over the objection of Hamilton’s attorney, the prosecutor repeatedly pointed to a medical opinion in the records that contradicted Grassian’s opinion, asked Grassian to read it aloud, asked Grassian to identify the professional who rendered that opinion, and asked Grassian to respond to it. The prosecutor also asked Grassian if he was more qualified than the professionals who rendered those opinions.

At least three of the professionals who prepared medical records expressed the opinion that Hamilton was faking a mental illness. Another expressed the opinion that he did not suffer from a bipolar disorder. Grassian testified that the opinions suggesting that Hamilton was faking a mental illness were not supported by facts that justified that opinion. Grassian also observed that some of the opinions were expressed several years before the assault for which Hamilton was on trial and might not reflect Hamilton’s current condition.

The defense objected that the prosecution was relying on hearsay statements made by medical experts who were not testifying, but the trial court ruled that the prosecutor was entitled to impeach Grassian with those statements. In the end, the jury rejected the diminished capacity defense and convicted Hamilton. He appealed.

Court of Appeals’ Decision

The Washington Court of Appeals reversed Hamilton’s conviction. The Court agreed with the defense that the medical records were inadmissible hearsay. The prosecutor’s use of the records to impeach Grassian’s opinions did not render those opinions admissible.

The Court of Appeals observed that the prosecution’s cross-examination tactics elicited the expert opinions stated in the medical records without calling the medical experts as witnesses. The Court noted that the medical records were never admitted into evidence and therefore could not be used as substantive evidence of Hamilton’s mental health.

The Court agreed with the prosecution that an expert witness may be impeached with information that the professional relied upon in forming an opinion, but held that Grassian could not be impeached with Hamilton’s medical records because Grassian did not rely upon them.

At trial, the prosecutor argued that Grassian should have relied upon the records. The Court of Appeals noted that the opinions only had value to Grassian if they were accurate. That meant that the prosecution wanted the jury to accept the truth of the opinions in the medical records. But statements made outside of court that are offered for their truth are hearsay, and the prosecution cited no exception to the hearsay rule that applied to expert opinions expressed in medical records when the records were not admitted as evidence. If the prosecutor wanted to impeach Grassian with medical opinions that Grassian did not rely upon, the prosecution was required to call its own expert.

Apparently realizing that the medical records were hearsay if the opinions in the records were represented as being true, the prosecution contended on appeal that the opinions in the records were not meant to be taken as true. The Court of Appeals concluded that untrue medical opinions have no value and are therefore not relevant. Either way, any opinions in the medical records were inadmissible.

Lessons Learned

Washington law, like the law of most states, allows an expert to be cross-examined about the basis of his or her opinion. And like the law of most states, Washington allows hearsay into evidence for the limited purpose of establishing the basis for an expert’s opinion.

The Hamilton decision should remind lawyers who use expert witnesses that they need to know exactly what facts an expert relied upon. Documents might be used against the expert at trial if the expert relied upon them, even if those documents would otherwise be hearsay. On the other hand, if the expert did not rely upon the documents, the lawyer will usually be entitled to object to cross-examination of the expert based on those documents because the documents themselves are hearsay.

The rule that the Court of Appeals relied upon is simple and clear: “Cross-examination that attempts to impeach by slipping in unrelied on opinions and conclusions without calling the experts to testify is improper.” Excluding medical opinions that are hearsay forces the other side to call its own expert, providing an opportunity to cross-examine that expert about the validity of his or her opinion.