The Judicial Conference on the Rules of Practice and Procedure Commission recently voted unanimously to approve two proposed amendments to Federal Evidence Rule 702, “Testimony of Expert Witnesses”. Rule 702 governs the admissibility of expert testimony in the process. The amendments emphasize the judge’s power to guard the door. That is, the amendments reinforce that the role of the judge, not the jury, is to keep the science of rubbish out of the courtroom. As long as the steps in the adoption process remain, if the amendments are finally approved, they will enter into force in December 2023.
- The amendments are aimed at limiting the inconsistent application of Rule 702.[I]in a decent number of cases, “the Committee notes,” the courts have found expert testimony admissible, although the petitioner has not complied with the requirements of Rule 702 (b) and (d) due to the predominance of evidence – essentially treating these issues as serious. and not on admissibility. “The amendments confirm that the judge, not the jury, is the goalkeeper.
- The First Amendment clarifies that the party proposing an expert opinion must prove to the court that all the conditions for admissibility are met by the supremacy of the standard of proof (“more likely than not”).
- The second amendment requires the expert’s opinion – not just the methodology – “reflects the reliable application of principles and methods to the facts of the case”. “If an expert overestimates what can be reliably concluded,” the Committee noted, “then the expert’s opinion should be excluded under Rule 702 (d).”
First Amendment: More likely than not standard.
The first amendment provides (the underlined part of the amendment):
“A witness who is qualified as an expert in knowledge, skills, experience, training or education may testify in the form of an opinion or otherwise, if the petitioner demonstrates to the court that it is more likely than not“Subparts (a) to (d) are fulfilled.
Rule 702, as currently written, does not specify the standard federal courts that must be applied in deciding whether to allow proposed expert opinions. As such, “many courts have accepted”, according to the Committee, “that the critical issues of the adequacy of the expert base and the application of the expert methodology are issues of gravity and not of admissibility. These decisions constitute an incorrect application of Rules 702 and 104 (a). “The amendment clarifies that the judge must act as a goalkeeper to prevent the introduction of garbage science. Experts with questionable qualifications or unreliable methodologies should no longer be allowed under the “burden of proof” approach.
Second Amendment: Reliable Opinions
The second amendment provides (deletions to be deleted)
“(D) the expert has applied reliably expert opinion reflects the reliable application of the principles and methods of the facts of the case. “
Under the current version of Rule 702 (d), expert opinion may be allowed if, among other things, the expert methodology is reliable. The amendment is significant in that the court must now assess not only the methodology of the expert, but also the opinion of the expert. According to the committee, the amendment “emphasizes[s] that any expert opinion should remain within the limits of what can be done from the reliable application of the expert base and methodology. ” In other words, courts should no longer allow the testimony of a proposed expert who sets out a reliable methodology but who reaches an unjustified or exaggerated conclusion.
The Judicial Conference will now review the amendments, followed by the Supreme Court. If finally approved, the amendments will take effect in December 2023. In the meantime, it will be interesting to see whether the federal courts (and perhaps even some state courts) align their future decisions with the proposed amendments, especially given the having regard to the committee’s comment.