aMendMentstofederalruleofevidence702takeeffectindeceMBer2023
Trial & litigation Section
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have incorrectly determined to be governed by the more permissive Rule 104 ( b ) standard . But it remains the case that other admissibility requirements in the rule ( such as that the expert must be qualified and the expert ’ s testimony must help the trier of fact ) are governed by the Rule 104 ( a ) standard as well .”
The second amendment pertains to subsection ( d ) and requires the proponent to demonstrate to the court that “ the expert ’ s opinion reflects a reliable application of the principles and methods to the facts of the case .” The Committee Note states that this amendment is “ to emphasize that each expert opinion must stay within the bounds of what can be concluded from a reliable application of the expert ’ s basis and methodology .” The Committee Note further states the amendment is especially pertinent to the testimony of forensic experts who “ should avoid assertions of absolute or one hundred percent certainty — or to a reasonable degree of scientific certainty — if the methodology is subjective and thus potentially subject to error .” In addition , the Committee Note states that “ in deciding whether to admit forensic expert testimony , the judge should ( where possible ) receive an estimate of the known or potential rate of error of the methodology employed , based ( where appropriate ) on studies that reflect how often the method produces accurate results . Expert opinion testimony regarding the weight of feature comparison evidence ( i . e ., evidence that a set of features corresponds between two examined items ) must be limited to those inferences that can reasonably be drawn from a reliable application of the principles and methods .” But it expressly notes that the amendment “ does not bar testimony that comports with substantive law requiring opinions to a particular degree of certainty .”
Finally , as the Committee Note states , “ Nothing in the amendment imposes any new , specific procedures . Rather , the amendment is simply intended to clarify that Rule 104 ( a )’ s requirement applies to expert opinions under Rule 702 .” n
Authors : Jaret J . Fuente & Andre A . Revaz – Carlton Fields
N O V - D E C 2 0 2 3 | H C B A L A W Y E R
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