Hey, did you know that amendments to FRE 702 are going into effect in 10 days? Here’s what you need to know about the changes.

Federal Rule of Evidence (FRE) 702, which governs expert testimony in federal court, is being amended and those amendments will be effective on December 1st. Here are the amendments to FRE 702 via the 2023 congressional package here (FRE 702 amendments are shown on page 209), with underlined text to represent new language bolded and strike through text to represent removed language:

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 demonstrates 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 expert’s opinion reflects a reliable application of the principles and methods to the facts of the case.

As noted in the committee note, “the rule has been amended to clarify and emphasize that expert testimony may not be admitted unless the proponent demonstrates to the court that it is more likely than not that the proffered testimony meets the admissibility requirements set forth in the rule.” The change is needed because “many courts have held 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”, which “are an incorrect application of Rules 702 and 104(a).”

It also notes “Judicial gatekeeping is essential because just as jurors may be unable, due to lack of specialized knowledge, to evaluate meaningfully the reliability of scientific and other methods underlying expert opinion, jurors may also lack the specialized knowledge to determine whether the conclusions of an expert go beyond what the expert’s basis and methodology may reliably support.” So, judges will be more important than ever in limiting an expert’s opinion to the bounds of what can be concluded from a reliable application of the expert’s basis and methodology.

Jennifer L. Mnookin, chancellor of the University of Wisconsin–Madison and one of the most cited evidence law scholars in the nation, goes further. She authored an editorial in the journal Science last week calling for “a national commission that includes leading judges, scientists, legal academics, and forensic practitioners to jointly develop a framework to ensure that forensic science used in the courtroom is valid and reliable.”

As part of that editorial, Mnookin references the FRE 702 changes and landmark case Daubert v Merrell Dow Pharmaceuticals, Inc., which marked a shift 30 years ago in how the legal system considers scientific evidence. While on the civil side, Mnookin says “Daubert has generally raised the bar”, legal actions based on Daubert have been less frequent in criminal cases.

As Mnookin stated: “Many kinds of forensic evidence, from fingerprints to bloodstain pattern analysis to firearms identification, continue to enter court with remarkably little scientific scrutiny or proof of accuracy and validity.” Too often, judges in criminal cases have taken “a lightweight approach” to assessing forensic science, relying on outdated precedents or failing to seriously address scientific validity.

As technology continues to evolve, the importance of expert testimony will only continue to grow. It will be interesting to see how the FRE 702 changes and other efforts will impact that.

Hat tip to Greg Bufithis for the heads up on the story on Mnookin’s editorial!

So, what do you think? How do you think the amendments to FRE 702 will impact expert testimony? Will they be enough? Please share any comments you might have or if you’d like to know more about a particular topic.

Image created using Microsoft Bing’s Image Creator Powered by DALL-E, using the term “electronic evidence in a courtroom”.

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