Changes are Coming to the Federal Rules of Evidence for Expert Testimony
Rule 702 of the Federal Rules of Evidence provides the ground rules for admissibility of expert witness testimony in Federal Court. The Rule has evolved since it was first adopted in 1975 with the most current revisions taking effect December 1, 2023.
Rule 702 was originally intended to codify the case Frye v. United States which at the time was widely used as the legal standard for the admission of expert witness testimony. Rule 702 defined the role of an expert witness as assisting the trier of fact with specialized knowledge. It also defined an expert as having knowledge, skill, experience, training, or education enabling them to provide an opinion. Even after the adoption of Rule 702, there was continued reliance on the Frye case because it was not clear whether 702 was to be thought of as entirely new or simply an extension or clarification of Frye itself.
Enter Daubert v. Merrel Dow Pharmaceuticals, Inc. which added additional context to the debate that lingered in the application of Frye and Rule 702. Daubert provided a list of factors that judges can consider when evaluating whether to allow expert testimony in a case. The five Daubert factors include:
- Has the method or approach been tested?
- Has the method or approach been published and peer reviewed?
- Is there an error rate associated with the method or approach?
- Are there standards in place for the application of the method or approach?
- Is the method or approach accepted in the expert community?
This approach seemingly solidified the judge as a “gatekeeper” when it comes to allowing expert testimony. It also seems to support Rule 104(a) which states that it is the court’s responsibility to determine whether an expert is qualified, or evidence is admissible.
The final round of notable cases related to expert testimony and Rule 702 came about in General Electric v. Joiner and Kumo Tire v. Carmichael which added further clarity and expanded the applicability of the standards. The important takeaways from Kumo included:
- The court’s gatekeeper role when it comes to expert witnesses
- The gatekeeper role applies to all expert testimony, not just testimony rooted in “science”
- The judge plays an important role in assessing the relevance and reliability of expert testimony
In 2000, Rule 702 was amended to include the results of Daubert and clarified or perhaps further solidified the court’s role as “gatekeeper” when it comes to expert testimony, or so it was thought.
As we fast forward 23 years later, Rule 702 and Daubert are widely cited in the expert witness community, academia, and legal proceedings. Interestingly, outside of the Federal Court system some states still apply the concepts of Frey. It continues to be argued that courts interpret the rules related to expert witnesses differently particularly when it comes to its role as “gatekeeper”. Enter the 2023 Amendment to Rule 702. The 2023 Amendment adds additional clarity to the “gatekeeper” role.
In letters to the House of Representatives and Senate dated April 24, 2023, Chief Justice John Roberts set forth the amendment to Rule 702. The letter stated the following.
Rule 702.Testimony by Expert Witness
“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:
- 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;
- the testimony is based on sufficient facts or data;
- the testimony is the product of reliable principles and methods; and
- the expert has reliably applied expert’s opinion reflects a reliable application of the principles and methods to the facts of the case.”
*The relevant text has been made bold, italicized & in red font for reference purposes only in identifying the amendments.
Most notably, the amended verbiage adds a hurdle regarding expert testimony essentially allowing testimony if it is more likely than not that it will help the trier of fact and the other three stated elements. The new verbiage also specifically provides that the court assesses the application of the expert’s methods to the facts in the case. Again, the amendment does add clarity to the assessment of the expert witness and particularly their work but does not materially change the Rule.
From an expert witness perspective, North American Forensic Accounting does not believe that the amendments to Rule 702 will impact our expert witness testimony. Credible expert witnesses are already applying the concepts set forth in the 2023 amendment to Rule 702. We believe that the amendment does further clarify the court’s role in assessing expert witness testimony and can result in the exclusion of expert witness testimony that does not help further a case thus enhancing the quality of the US federal judicial system. Our interpretation is quite straightforward in that this has been the role of the court in its oversight of expert witness testimony.