IN THE PROFESSION
( 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 of the facts to the case . 1
What does this mean ?
To understand the possible ramifications of the change , it helps to step back and review the legal battles that led courts from Frye , Daubert , and the enactment of the current iteration of Rule 702 to the pending amendments .
As law students will immediately remember and seasoned practitioners will dimly recall , the Court in Frye v . United States established the “ general acceptance ” test for admissibility . Essentially , the Frye Court held that , “[ t ] he evidence relating to a scientific principle or discovery is admissible when the principle is established sufficiently to have gained general acceptance in a particular field .” 2
Fifty years later , the Supreme Court adopted the Federal Rules of Evidence and the following language for Rule 702 : “ If scientific , technical or otherwise specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue , a witness qualified as an expert by knowledge , skill , experience , training , or education , may testify thereto in the form of an opinion or otherwise .”
A period of controversy followed the adoption of Rule 702 as courts and litigants were left to parse whether Rule 702 adopted Frye or created a new and different standard of admissibility . The Supreme Court settled this question in Daubert v . Merrell Dow Pharmaceuticals , Inc .
In Daubert , the Court made explicit the “ gatekeeping ” function of the courts and set out factors for courts to consider when ruling on the admissibility of evidence .
Among these factors was whether the reliability of the expert ’ s technique could be tested and whether the theory or technique had been peer reviewed . General acceptance in the scientific community was an additional consideration , but it was not the only consideration .
Although the Daubert opinion succeeded in convincing the legal community the basic standard for admission was not Frye , legal battles raged over exactly what Rule 702 required — both from the courts and from the proponents of expert testimony . This led to an amendment of Rule 702 to adopt the language in Daubert . The uneven application of the amended Rule 702 leads directly to the amendments put forth today .
What do lawyers say ?
Although approximately 80 % of public comments were against the changes , 3 many experts feel that the amendments represent an appropriate clarification of the court ’ s role in admitting or rejecting evidence , and a corrective measure necessary to ensure that courts perform the gatekeeping function Rule 702 requires of them .
For years courts have - whether through a willful misreading of the law or an honest mistake - left juries to perform their own gatekeeping by ruling that questions about the reliability of expert testimony go to “ weight ” rather than “ admissibility .” In his support for the amendment , Senior Attorney Mark Loudon-Brown ( Southern Center for Human Rights ), points to the importance of having judges keep not just poor science but poorly applied science away from juries .
“ The need to determine whether the [ scientific ] discipline was reliably applied in a given case is , to me , particularly important as that is a factor judges often believe goes to weight ,” argues Loudon- Brown . “ This amendment makes clear that the ‘ as applied ’ reliability determination does indeed go to admissibility .”
Loudon-Brown , who has taught forensic evidence at Georgia State Univeristy , College of Law , argues that the amendment ’ s clarification on the point of admissibility is “ crucial ” because , “ as courts have recognized , jurors can succumb to the ‘ talismanic ’ quality of expert testimony .” So , for Loudon-Brown and defense attorneys like him , the amendment represents a step forward in keeping bad experts from improperly influencing a jury . He points to the Innocence Project comment on the amendment that he cosigned , which reads : “ Forensic evidence has played an outsized role in convicting the innocent , which demonstrates that even baseless ‘ scientific ’ evidence has a uniquely persuasive impact on juries .”
Many objections to the amendments come from the plaintiff ’ s bar . Some plaintiff ’ s attorneys worry about an onslaught of time-consuming “ mini-trials ” to determine the admissibility of expert testimony . Supporters of the amendment counter that this concern is misplaced and that , especially in a criminal context where life and liberty may be at stake , having a serious evaluation of the reliability of expert testimony is a small price to pay to prevent juries from being persuaded by unreliable experts .
Additionally , by re-emphasizing the correct standard of admissibility as set out in Federal Rule of Evidence 104 ( a ) ( the preponderance standard ) these amendments may correct courts that have erroneously treated Rule 702 as a rule favoring admissibility , treating exclusion of expert testimony as the exception rather than the rule . These mistakes are not scattered between a few poorly informed district courts ; rather , error applying the preponderance standard to expert testimony seems to be the rule rather than the exception to it .
The organization Lawyers for Civil Justice conducted a research study examining all federal cases decided in 2020 that addressed the admissibility of expert testimony under Rule 702 . In nearly two-thirds of cases , courts did not mention the preponderance standard . In 13 % of cases judges went further in the wrong direction , describing Rule 702 as favoring admission . 4
These statistics seem to suggest that some change is appropriate , if not long overdue . However , the changes will not matter unless courts give them force . Indeed , some studies suggest that , whether Rule 702 is changed , courts may still find ways
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