## Facts

- Sayiden Hussein Mohamed was charged with assault arising from an incident in which he was highly intoxicated.
- At trial, Mohamed did not testify.
- Mohamed presented Dr. Robert Julien, a pharmacologist, as his only witness to support a diminished capacity theory that Mohamed experienced an alcohol-induced blackout and therefore could not form the intent required for assault.
- Dr. Julien’s opinion relied in part on a conversation with Mohamed about the night in question.
- In describing the basis for his opinion, Dr. Julien testified that Mohamed told him how many drinks he consumed that night.
- On cross-examination, the State sought to attack Mohamed’s credibility (as the out-of-court declarant) by introducing evidence of Mohamed’s prior convictions under Washington Evidence Rule (ER) 806.
- The trial court permitted the impeachment, and the jury convicted Mohamed.
- After the verdict, the trial court granted Mohamed’s motion for a new trial, reasoning that Mohamed’s statements to Dr. Julien were presented to show the basis for Julien’s opinion, not to prove the truth of what Mohamed said about his alcohol consumption; therefore, ER 806 did not allow impeachment with prior convictions.
- The State appealed the order granting a new trial.

## Issues

1. When an expert witness recounts a defendant’s out-of-court statements as part of the basis for an opinion, are those statements admitted “as hearsay” for purposes of ER 806?
2. If the statements are admitted only to explain the basis of the expert’s opinion (and not for their truth), did the trial court correctly conclude that ER 806 impeachment with the defendant’s prior convictions was improper and warranted a new trial?

## Decision

- The Court of Appeals affirmed the trial court’s order granting a new trial.
- The court agreed that, under the circumstances presented, Mohamed’s statements relayed through Dr. Julien were admitted to explain the foundation of the expert’s opinion rather than as substantive proof of the amount Mohamed drank.
- Because ER 806 applies only when a hearsay statement (or certain specified nonhearsay statements under ER 801(d)(2)(iii)-(v)) has been admitted, ER 806 did not authorize the State to impeach Mohamed with prior convictions based solely on those basis disclosures.
- The trial court’s decision to grant a new trial to remedy the evidentiary error was not based on an incorrect interpretation of the law and was within the trial court’s discretion.

## Legal Principles

- A statement is hearsay only if it is offered to prove the truth of the matter asserted; statements offered for a limited purpose (such as explaining why an expert formed an opinion) are not hearsay for that limited use.
- ER 806 permits a party to attack the credibility of a declarant only after a hearsay statement (or a statement specifically listed in ER 806 by reference to ER 801(d)(2)(iii)-(v)) has been admitted into evidence.
- When otherwise inadmissible out-of-court information is disclosed to show the basis of an expert’s opinion, the disclosure does not automatically make the underlying statement substantive evidence.
- If the predicate condition for ER 806 is not met (admission of hearsay or a covered ER 801(d)(2) statement), impeachment tools such as prior convictions cannot be used to attack the declarant through ER 806 as though the declarant had testified.
- A trial court may grant a new trial when it concludes that an evidentiary ruling rested on an error of law and that the error affected the fairness of the trial.

## Conclusion

The Court of Appeals held that Mohamed’s statements to Dr. Julien were presented to explain the basis of Julien’s alcohol-blackout opinion rather than to prove the truth of Mohamed’s account of his drinking, so ER 806 did not permit the State to impeach Mohamed with prior convictions. Because the impeachment was admitted in error, the trial court properly granted a new trial, and the Court of Appeals affirmed that order.


State v. Mohamed, 358 P.3d 442 (2015)