Longtime readers will remember that I occasionally went on a “rant” about how many federal judges ignored the text of Federal Rule of Evidence 702, as amended in 2000. Instead, they relied on decisions prior to the rule, and it actually contradicted the rule. Some of these decisions were based on precedents dating back as far as the 1980s, before the so-called Supreme Court trials Daubert trilogy of cases on expert evidence substantially strengthened the admissibility rules, and of course before Rule 702 was amended to bring it into conformity (and indeed, resolve some existing ambiguities) with the trilogy. I even wrote an academic paper on the topic.
As a result of these writings, attorney Eric Lasker invited me to co-author an article calling for a new amendment to Rule 702, designed to call the attention of federal judges to the fact that the Rule, and not prior precedents, that’s what they should run for. I agreed, but warned Eric that professors often ask for rule changes and are almost as often ignored. Our article was published in the William and Mary Law Review.
To my surprise, about a year later, Professor Dan Capra, a reporter for the Federal Rules of Evidence, told me that he had read our article, agreed with its basic premise, and was planning to propose to the Rules Committee that it amend the rule. It took another seven years, but in December 2023 the new amendment to Rule 702 went into effect:
Rule 702. Testimony of Expert Witnesses
A witness 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:
(a) the expert’s scientific, technical or other specialized knowledge will help the judge to understand the evidence or determine a fact in issue;
(b) the testimony is based on sufficient facts or data;
(c) testimony is the product of reliable principles and methods; AND
(d) thethe expert applied reliablythe expert opinion reflects a reliable application of principles and methods to the facts of the case.
Crucially, the first change is to admonish the justices that the admissibility of expert testimony is a matter for the judge to decide under the preponderance standard of Rule 104(a), and not, as some justices have implicitly decided, a matter for the jury under Rule 104(b) provided that a reasonable juror could decide that the evidence is relevant. The second change is to clarify that judges should not treat an expert’s methodology as an abstract matter, but rather ensure that the opinion expressed by the expert reflects a reliable application of reliable principles and methods.
These changes are different than the ones Eric and I proposed, but I think the underlying message to judges that they need to stop shirking their responsibility to apply Rule 702 comes across loud and clear.