An Expert's Opinion Based Upon Hearsay Is Allowable in an Article 10 Mental Health Hearing

Key Takeaways

• In Matter of State of New York v Wilkes, the Fourth Department allowed two psychologists to testify to limited amounts of hearsay at an Article 10 (Mental Hygiene Law) trial.
• The hearsay was admissible for one purpose only: to inform the jury of the basis of the expert opinion, not for the truth of the matters related.
• The court acknowledged People v Goldstein’s warning that letting an expert repeat all underlying hearsay rests on a “questionable assumption,” but found no error where the purpose was limited and probative value outweighed prejudice.
• The ruling aligns the Fourth Department with the Appellate Term, Second Department’s reasoning in Urban v. Tristate on expert opinions built on hearsay.
• The same basis-versus-truth distinction drives fights over peer review and IME testimony in New York no-fault litigation.

The Decision

Matter of State of New York v Wilkes, 2010 NY Slip Op 07006 (4th Dept. 2010)

“Insofar as respondent preserved for our review his further contention that the court erred in permitting two psychologists to testify to limited amounts of hearsay information at trial in order to explain their opinions, we conclude that respondent’s contention lacks merit. Although it is a “questionable assumption” that a psychologist may “not only … express her opinion but repeat to the jury all the hearsay information on which it was based” (People v Goldstein, 6 NY3d 119, 126, cert denied 547 US 1159), it is well settled that “hearsay testimony given by experts is admissible for the limited purpose of informing the jury of the basis of the expert opinion and not for the truth of the matters related” (People v Campbell, 197 AD2d 930, 932, lv denied 83 NY2d 850; see People v Wlasiuk, 32 AD3d 674, 680, lv dismissed 7 NY3d 871; Shahram v Horwitz, M.D., 5 AD3d 1034, 1035). We thus conclude that the testimony was properly admitted after the court determined that its purpose was to explain the basis for the experts’ opinions, not to establish the truth of the hearsay material, and that any prejudice to respondent from the testimony was outweighed by its probative value in assisting the jury in understanding the basis for each expert’s opinion.”

The Fourth Department seems to agree with the Appellate Term, Second Department’s rationale in Urban v. Tristate as it relates to expert opinions based upon hearsay.

The Legal Framework: Basis Evidence vs. Truth Evidence

New York expert practice has long permitted an expert to form an opinion on material not in evidence, provided the material is of a kind accepted in the profession as reliable — the familiar professional-reliability route. The harder question, and the one Wilkes addresses, is how much of that out-of-court material the expert may repeat to the factfinder.

The doctrinal compromise is the limited-purpose rule: the expert may relay hearsay “for the limited purpose of informing the jury of the basis of the expert opinion and not for the truth of the matters related.” The jury hears why the expert believes what she believes; it is instructed not to treat the underlying statements as proof of the facts asserted. People v Goldstein exposed the strain in that fiction — the Court of Appeals called it a “questionable assumption” that jurors can absorb the basis without crediting the content — yet, as Wilkes shows, the rule survives where the trial court polices purpose and balances probative value against prejudice.

Article 10 proceedings (sex offender civil management under the Mental Hygiene Law) put unusual pressure on this rule. The State’s psychologists typically build their diagnoses and risk assessments on records and accounts they did not witness — institutional files, prior evaluations, accusations underlying past charges. Wilkes confirms that limited recitation of that material, screened by the trial court, is permissible basis evidence.

Why This Matters Beyond Article 10

The basis-versus-truth distinction is not an Article 10 curiosity; it is the everyday battlefield of expert testimony in civil litigation. In personal injury trials, treating and examining physicians routinely rely on histories, imaging reports, and records authored by others. In no-fault litigation, the same fight appears as the “peer hearsay” problem: a peer review doctor opines on medical necessity based on another provider’s records, and the question becomes what foundation is required and how much of the underlying material the witness may recount. The firm’s later coverage of Article 10 evidentiary issues traces how courts kept adjusting the line.

Two practical limits emerge from the case law. First, the hearsay must be genuinely limited — an expert who becomes a conduit for wholesale repetition of accusations or records invites reversal under Goldstein. Second, the trial court must make the screening determination: purpose (basis, not truth) and balance (probative value against prejudice). In Wilkes, both findings were made, and both mattered to affirmance.

Practice Pointers

• Proponents should front-load the foundation: establish that the materials relied upon are of a type accepted as reliable in the expert’s field before eliciting any of their content.
• Ask for the limiting instruction in advance and have the expert frame recitations as basis (“in forming my opinion, I considered…”) rather than as narrative fact.
• Opponents should object to volume, not just admissibility — Goldstein’s “questionable assumption” language is the lever when basis testimony becomes a hearsay conduit.
• Request the on-the-record balancing: purpose and prejudice findings, as made in Wilkes, are what sustain (or doom) the ruling on appeal.
• In no-fault and PI practice, scrutinize whether the reviewing or examining expert actually possessed the records relied upon; the basis rule does not excuse a missing foundation.

Frequently Asked Questions

Can an expert witness rely on hearsay in New York?

Yes, within limits. An expert may base an opinion on out-of-court material if it is of a kind accepted in the profession as reliable, and may relay limited amounts of that hearsay to explain the basis of the opinion — but not as proof of the facts asserted.

What is an Article 10 mental health hearing?

A civil management proceeding under Article 10 of New York’s Mental Hygiene Law to determine whether a detained sex offender suffers from a mental abnormality requiring civil management. The State typically presents psychiatric and psychological expert testimony at trial.

Why does it matter whether hearsay comes in for its “truth”?

Because the limited purpose controls how the factfinder may use it. Basis hearsay only explains the expert’s reasoning; it is not evidence that the underlying events occurred. When an expert repeats extensive hearsay, courts — following People v Goldstein — may find the limited-purpose theory a fiction and exclude or reverse.

Related Resources

• Peer review in New York no-fault — cluster hub
• The firm’s Legal Encyclopedia
• Personal injury practice
• Understanding Article 10 Evidentiary Issues: Expert Witness Testimony and Hearsay Rules in New York Courts
• Another Article 10 case wittles away peer hearsay
• The absence of an expert is fatal to prove causation
• Civil Court Decisions in No-Fault Insurance: When Legal Reasoning Goes Wrong
• New York No-Fault Insurance Law