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Likely Changes to Federal Rules of Evidence Governing Expert Testimony

By Robert H. Alexander, CPA/ABV/CFF, ASA

Enactment of the Amendment to Rule 702

The proposed change to the Federal Rules of Evidence (“FRE”) impacting the admissibility of expert testimony moved one step closer to adoption in June when it was approved by the Judicial Conference Committee on Rules of Practice and Procedure (“Standing Committee”). The rule still needs approval from the Judicial Conference, the United States Supreme Court, and Congress. If approved, which many think it will be, it would likely take effect on December 1, 2023.


What is the Change to the Rule?

The change to FRE Rule 702 is made to the lead paragraph of Rule 702 and section (d). The amended Rule 702 would read as follows (new language is in red, and the language to be omitted is black lined.):

A witness who is qualified as an expert by knowledge, skill, experience, training, or education may testify in the form of an opinion or otherwise, if the proponent demonstrations to the court that it is more likely than not that:

(a) the expert’s scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine  a fact in issue;

(b) the testimony is based on sufficient facts or data;

(c) the testimony is the product of reliable principles and methods; and

(d) the expert has reliably applied the expert’s opinion reflects a reliable application of the principles and methods to the facts of the case.

These changes address two key areas the Standing Committee believed needed overdue attention. First, before expert testimony is presented to a jury, the proponent must show the court that it is admissible by a preponderance of the evidence. Second, an expert cannot express a level of confidence in an opinion that is not supported by facts and credible research.

Reasons Behind the Change

The Advisory Committee on Evidence Rules (“Advisory Committee”) is charged with developing the changes to Rule 702. As noted above, it focused on two areas of concern regarding the current Rule 702. First were the widely misunderstood requirements regarding the admissibility of expert testimony—namely that expert testimony is presumed to be admissible (it is not) and that the standard for admissibility for expert testimony is that the proponent must show the court, by a preponderance of the evidence, that the expert testimony meets the requirements to be admissible.

The second area of focus for the Advisory Committee was on the opinions of forensic experts and “the problem of overstating results (for example, an expert claiming that her opinion has a ‘zero error rate,’ where that conclusion is not supportable by the expert’s methodology.…”[1] or the case’s facts).

While the current Rule 702, adopted in 2000, does not incorporate the preponderance standard, it was discussed in the Committee Notes accompanying its adoption. The first paragraph of the Committee Notes states:

[T]he admissibility of all expert testimony is governed by the principles of Rule 104(a). Under that Rule, the proponent has the burden of establishing that the applicable admissibility requirements are met by a preponderance of the evidence.[2]

Even with that seeming clarity, the Committee Notes to the new proposed amendment explain that “many courts” incorrectly apply Rules 702 and 104(a) by holding that “the critical questions of the sufficiency of an expert’s basis, and the application of the expert’s methodology, are questions of weight and not admissibility.”

U.S. District Judge Patrick J. Schiltz of Minnesota, who chairs the Advisory Committee on Evidence Rules, said regarding the rule change, “This does not change the law at all. It simply makes it clearer.”[3] He added that many federal judges had misinterpreted the current rule, interpreting it to mean that evidence may be admitted if a jury could find it reliable rather than that evidence may be admitted only after a judge has determined that it was reliable as the rule required.


What Will Be the Impact of the Change

This is based on my speculations, something I never do in my expert work.

  • Since the Committee does not believe this represents a change to what was always the law, attorneys will likely conform their Daubert challenges to reflect the proposed revisions to Rule 702.
  • Courts will spend more time on expert testimony admissibility. It could mean that before expert testimony can be given, it must first be heard and deemed admissible by the judge.
  • The proposed changes tighten the rules that have been in practice governing the admissibility of expert testimony. Undoubtedly, more testimony will be ruled inadmissible, and more experts will be disqualified.

 

[1] Report of Committee on Rules of Practice and Procedure. United States Courts, 7 June 2022, p. 870, http://www.tinyurl.com/2hx2r3xt

[2] Cornell Law School. “Rule 702. Testimony by Expert Witnesses, Committee Notes on Rules—2000 Amendment.” Legal Information Institute, 2011, www.law.cornell.edu/rules/fre/rule_702.

[3] Pierson, Brendan. “Judicial Committee Adopts Controversial Change to Expert Witness Rule.” Reuters, 7 June 2022, www.reuters.com/legal/government/judicial-committee-adopts-controversial-change-expert-witness-rule-2022-06-07/.