dissenting:
I disagree with the majority’s conclusion that the trial court committed reversible error by failing to allow the defendant’s expert, Dr. Rabin, an opportunity during rebuttal to attack the reliability of Dr. Hartman’s report, which was relied upon by the State’s experts, Drs. Hardy and Lahmeyer, as the basis of their opinions that there was no evidence that the defendant was insane. The defendant did not object to the State’s experts’ reliance on Dr. Hartman’s report and did not challenge the reliability of the underlying report when it was first mentioned by the State’s witnesses as a basis for their opinions. In fact, the defendant’s own expert, Dr. Kuncel, utilized the data from Dr. Hartman’s report in rendering her opinion in the defendant’s case in chief. I believe that the defendant waived the right to challenge the reliability of Dr. Hartman’s report by not challenging the State’s experts’ opinions on foundational grounds. In Wilson v. Clark, 84 Ill. 2d 186, 192-96 (1981), the Illinois Supreme Court adopted Federal Rules of Evidence 703 and 705 (Fed. Rs. Evid. 703, 705) and held that an expert witness may base his opinion on information that has not been admitted into evidence so long as that information is reliable and is of the type reasonably relied upon by experts in that field. Modelski v. Navistar International Transportation Corp., 302 Ill. App. 3d 879, 885 (1999). An expert’s opinion is only as valid as the basis for the opinion. Modelski, 302 Ill. App. 3d at 885. The admission of an expert’s testimony requires the proponent to lay an adequate foundation for the evidence, i.e., to establish the reliability of the evidence, and if the proponent fails to do so, it is the responsibility of the opponent to challenge the reliability of the basis on cross-examination. People v. Contreras, 246 Ill. App. 3d 502, 510-11 (1993). Moreover, it is for the trial court, in the exercise of its discretion, and not the jury, to determine whether the foundational requirements have been met. Aguinaga v. City of Chicago, 243 Ill. App. 3d 552, 562 (1993).
In its simplest terms, the defendant, in choosing not to object to Dr. Hartman’s report as a sufficient basis for the State’s experts’ opinions and choosing rather to elicit testimony from his own expert on rebuttal as to the reliability of the report, attempted to convert a question of law to be determined by the trial judge (i.e., was the report a sufficient basis for the State’s experts’ opinions) into a question of fact for the jury (i.e., would the jury believe that Dr. Hartman’s report was fraught with errors, and therefore, the jury rather than the judge would decide whether to reject the State’s experts’ opinions based on an inadequate basis for those opinions).
Here, the defendant did not challenge the reliability of the report when he was required to do so. Instead, the defendant prejudiced the State by waiting until the State’s witnesses had already rendered their opinions and were unable to defend their reliance on the report. The majority claims that allowing Dr. Rabin to testify in rebuttal about the reliability of Dr. Hartman’s report was proper to impeach Drs. Hardy and Lahmeyer. I disagree. If Dr. Hartman’s report was unreliable as the basis for the experts’ opinions, as the defendant now claims, then the State’s experts’ opinions lacked a proper foundation for admissibility. In that case, the defendant should have objected initially and, at the very least, cross-examined the State’s experts on the reliability of the report. By failing to do so, the defendant waived the matter.
I agree with the State that People v. Scott, 148 Ill. 2d 479 (1992), strongly supports its position that the defendant should have challenged the reliability of the report when the State’s witnesses first mentioned their use of it. In Scott, as in the present case, the defendant argued that the reports were inherently unreliable. The supreme court noted that “[i]f, as the defendant argues, the reports were unreliable, he should have objected on this ground when the reports were first discussed at trial.” Scott, 148 Ill. 2d at 526. Thus, Scott stands for the proposition that a defendant can and must object to a report as unreliable when the report is first discussed at trial by the expert relying upon it.
It is important to note that, pursuant to Wilson, Dr. Hartman’s report was never introduced as evidence in this case. It was only presented to the jurors as a basis for the State’s experts’ opinions. Dr. Rabin never testified in rebuttal as to his opinions in this case but, rather, chose to testify only as to the inaccuracy of the Hartman report. The only conceivable purpose of the defendant in this was to attack the foundation of the State’s experts’ opinions and, through this tactic, cast doubt in the minds of the jurors as to the legitimacy of those opinions. However, the foundation of the experts’ opinions was a matter solely within the province of the trial judge.
I believe that the defendant was required to give the trial court an opportunity to consider the reliability of the report as a matter of law. At that point, the State would have had an opportunity to present evidence that favored the reliability of the report. Because the defendant failed to object to the reliability of the report, I would hold that the trial court properly refused the defendant’s rebuttal testimony from Dr. Rabin to attack the report. Accordingly, I dissent.