State v. Henze

WOLLE, Justice

(dissenting).

In my view the record does not satisfactorily demonstrate the admissibility of the proffered medical testimony.

Defendant was the proponent of Dr. Ber-stler’s opinion testimony. When the trial court refused to admit a portion of that testimony, defendant had the burden to demonstrate the substance of that evidence by an offer of proof. Iowa R.Evid. 103(a)(2). Because defendant was relying on Iowa Rule of Evidence 703 to avoid the State’s hearsay objection, defendant also had the obligation to show that the proffered evidence satisfied each of the requirements of that rule. Pertinent here, defendant was required to show precisely what medical records Dr. Berstler wished to use as a basis for his opinion. Defendant was further required to prove that those specific medical reports were “of a type reasonably relied upon by experts in the particular field in forming opinions or inferences upon the subject.” Iowa R.Evid. 703. Finally, defendant should have had the trial court make a preliminary factual determination that the hearsay medical records were of that type.

Preliminary questions concerning ... the admissibility of evidence shall be determined by the court.... In making its determination it is not bound by the rules of evidence except those with respect to privileges.

Iowa R.Evid. 104(a); see 3 J. Weinstein & M. Beyer, Weinstein’s Evidence 11703[01], at 703-4 (1982) (“In situations falling within the second sentence, the trial judge in his discretion will have to determine whether the facts or data could be reasonably relied upon.”) The State would also have had the opportunity to present evidence before the judge made that preliminary factual determination.

Defendant made an offer of proof, but I believe it was inadequate. The offer of proof did not disclose when the hearsay medical records were prepared, what were *541the specific circumstances surrounding their preparation, or what was their specific content. More importantly, Dr. Berstler did not say, and no other evidence suggests, that the specific medical records on which he was basing his opinion were of the type usually relied upon by medical experts in forming the specific type of opinion defendant wished Dr. Berstler to present to the jury.

I do not doubt that medical doctors often rely upon medical records prepared by other persons in forming their own opinions or drawing some kinds of inferences. I am unwilling to stretch that general observation into a judicially noticed fact that would satisfy rule 703 whenever a medical doctor wishes to give opinion testimony based in part on another doctor’s medical records, regardless of the type of record, type of medical specialty, and type of opinion or inference to be drawn. The admissibility of opinion testimony based on hearsay should depend on the circumstances of each specific case, not on judicial notice of what doctors routinely rely upon in general.

The party seeking reversal has the burden to provide a record demonstrating error. Schroeder v. Fuller, 354 N.W.2d 780 (Iowa 1984). Defendant has not provided us with a record showing that the proffered opinion testimony of Dr. Berstler, which was based in large measure on the hearsay records of others, satisfied the prerequisites of rule 703. I would uphold the trial court’s evidentiary ruling and affirm defendant’s conviction of OWI, first offense.

CARTER, J., joins this dissent.