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Advanced Evidence Spring 2023 (4 credit)

New Amendment to Fed. R. of Evidence 702 and Committee Note

The Evidence Rules Committee recommended an amendment to Rule 702 in June 2022, that could go into effect in 2023 if approved by the Judicial Committee and the Supreme Court, and not vetoed by Congress. The Report (available here) introducing the amendment explains why the amendment was made (Note - you don't need to read this explanation, but please do read the amended rule and the committee notes):

The Committee has been researching and discussing the possibility of an amendment to
Rule 702 for five years. The project began with a Symposium on forensic experts and Daubert,
held at Boston College School of Law in October, 2017. That Symposium addressed, among other things, the challenges to forensic evidence raised in a report by the President’s Council of Advisors on Science and Technology. A Subcommittee on Rule 702 was appointed to consider possible treatment of forensic experts, as well as the weight/admissibility question discussed below. The Subcommittee, after extensive discussion, recommended against certain courses of action. The Subcommittee found that: 1) It would be difficult to draft a freestanding rule on forensic expert testimony, because any such amendment would have an inevitable and problematic overlap with Rule 702; and 2) It would not be advisable to set forth detailed requirements for forensic evidence either in text or Committee Note because such a project would require extensive input from the scientific community, and there is substantial debate about what requirements are appropriate.

The full Committee agreed with these suggestions. But the Subcommittee did express
interest in considering an amendment to Rule 702 that would focus on one important aspect of
forensic expert testimony --- the problem of overstating results (for example, an expert claiming
that her opinion has a “zero error rate”, where that conclusion is not supportable by the expert’s
methodology). The Committee heard extensively from DOJ on the important efforts it is now
employing to regulate the testimony of its forensic experts, and to limit possible overstatement.
The Committee considered a proposal to add a new subdivision (e) to Rule 702 that would
essentially prohibit any expert from drawing a conclusion overstating what could actually be
concluded from a reliable application of a reliable methodology. But a majority of the members
decided that the amendment would be problematic, because Rule 702(d) already requires that the
expert must reliably apply a reliable methodology. If an expert overstates what can be reliably concluded (such as a forensic expert saying the rate of error is zero) then the expert’s opinion
should be excluded under Rule 702(d). The Committee was also concerned about the possible
unintended consequences of adding an overstatement provision that would be applied to all
experts, not just forensic experts.

The Committee, however, unanimously favored a slight change to existing Rule 702(d)
that would emphasize that the court must focus on the expert’s opinion, and must find that the
opinion actually proceeds from a reliable application of the methodology. The Committee
unanimously approved a proposal—released for public comment in August, 2021--- that would
amend Rule 702(d) to require the court to find that “the expert’s opinion reflects a reliable
application of the principles and methods to the facts of the case.” As the Committee Note
elaborates: “A testifying expert’s opinion must stay within the bounds of what can be concluded
by a reliable application of the expert’s basis and methodology.” The language of the amendment
more clearly empowers the court to pass judgment on the conclusion that the expert has drawn
from the methodology. Thus the amendment is consistent with General Electric Co., v. Joiner,
522 U.S. 136 (1997), in which the Court declared that a trial court must consider not only the
expert’s methodology but also the expert’s conclusion; that is because the methodology must not
only be reliable, it must be reliably applied.

Finally, the Committee resolved to respond to the fact that many courts have declared that
the reliability requirements set forth in Rule 702(b) and (d) --- that the expert has relied on
sufficient facts or data and has reliably applied a reliable methodology --- are questions of weight
and not admissibility, and more broadly that expert testimony is presumed to be admissible. These statements misstate Rule 702, because its admissibility requirements must be established to a court by a preponderance of the evidence. The Committee concluded that in a fair number of cases, the courts have found expert testimony admissible even though the proponent has not satisfied the Rule 702(b) and (d) requirements by a preponderance of the evidence --- essentially treating these questions as ones of weight rather than admissibility, which is contrary to the Supreme Court’s holdings that under Rule 104(a), admissibility requirements are to be determined by court under the preponderance standard.

Initially, the Committee was reluctant to propose a change to the text of Rule 702 to address
these mistakes as to the proper standard of admissibility, in part because the preponderance of the evidence standard applies to almost all evidentiary determinations, and specifying that standard in one rule might raise negative inferences as to other rules. But ultimately the Committee unanimously agreed that explicitly weaving the Rule 104(a) standard into the text of Rule 702 would be a substantial improvement that would address an important conflict among the courts.

While it is true that the Rule 104(a) preponderance of the evidence standard applies to Rule 702
as well as other rules, it is with respect to the reliability requirements of expert testimony that many courts are misapplying that standard. Moreover, it takes some effort to determine the applicable standard of proof --- Rule 104(a) does not mention the applicable standard of proof, requiring a resort to case law. And while Daubert mentions the standard, Daubert does so only in a footnote in the midst of much discussion about the liberal standards of the Federal Rules of Evidence.

Consequently, the Committee unanimously approved an amendment for public comment that  would explicitly add the preponderance of the evidence standard to Rule 702(b)-(d). The language of the proposal released for public comment required that “the proponent has demonstrated by a preponderance of the evidence” that the reliability requirements of Rule 702 have been met. The Committee Note to the proposal made clear that there is no intent to raise any negative inference regarding the applicability of the Rule 104(a) standard of proof to other rules --- emphasizing that incorporating the preponderance standard into the text of Rule 702 was made necessary by the decisions that have failed to apply it to the reliability requirements of Rule 702.

More than 500 comments were received on the proposed amendments to Rule 702. In
addition, a number of comments were received at a public hearing held on the rule. Many of the
comments were opposed to the amendment, and almost all of the fire was directed toward the term “preponderance of the evidence.” Some thought that “preponderance of the evidence” would limit the court to considering only admissible evidence at the Daubert hearing. Others thought that the term represented a shift from the jury to the judge as factfinder. By contrast, commentators who supported the amendment argued that the amendment should go further and clarify that it is the court, not the jury, that decides admissibility.

The Committee carefully considered the public comments. The Committee does not agree
that the preponderance of the evidence standard would limit the court to considering only
admissible evidence; the plain language of Rule 104(a) allows the court deciding admissibility to
consider inadmissible evidence. Nor did the Committee believe that the use of the term
preponderance of the evidence would shift the factfinding role from the jury to the judge, for the
simple reason that, when it comes to making preliminary determinations about admissibility, the
judge is and always has been a factfinder. But while disagreeing with these comments, the Committee recognized that it would be possible to replace the term “preponderance of the evidence” with a term that would achieve the same purpose while not raising the concerns (valid or not) mentioned by many commentators. The Committee unanimously agreed to change the proposal as issued for public comment to provide that the proponent must establish that it is “more likely than not” that the reliability requirements are met. This standard is substantively identical to “preponderance of the evidence” but it avoids any reference to “evidence” and thus addresses the concern that the term “evidence” means only admissible evidence.

The Committee was also convinced by the suggestion in the public comment that the rule
should clarify that it is the court and not the jury that must decide whether it is more likely than
not that the reliability requirements of the rule have been met. Therefore, the Committee
unanimously agreed with a change requiring that the proponent establish “to the court” that it is
more likely than not that the reliability requirements have been met. The proposed Committee
Note was amended to clarify that nothing in amended Rule 702 requires a court to make any
findings about reliability in the absence of a proper objection. With those changes, and a few stylistic and corresponding changes to the Committee Note, the Committee unanimously voted in favor of adopting the amendments to Rule 702, for final approval.