Longtime readers will recall that every so often, I would go on a "rant" about how many federal judges were ignoring the text of Federal Rule of Evidence 702, as amended in 2000. Instead, they were relying on decisions that predated the rule, and indeed contradicted the rule. Some of these decisions relied on precedents dating back as far as the 1980s, before the Supreme Court's so-called Daubert trilogy of cases on expert evidence tightened the admissibility rules substantially, and of course before Rule 702 was amended to make it conform (and indeed, settle some existing ambiguities) with the trilogy. I also wrote an academic article on the subject.
As a result of these writings, attorney Eric Lasker invited me to co-author an article calling for a new amendment to Rule 702, one designed to call federal judges' attention to the fact that the Rule, and not preceding precedents, is what they are supposed to be applying. I agreed, but I warned Eric that professors often call for rules to be amended, and are almost just as often ignored. Our article was published in the William and Mary Law Review.
To my surprise, about a year later Professor Dan Capra, reporter for the Federal Rules of Evidence, told me that he 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 took effect:
Rule 702. Testimony by Expert Witnesses
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:
(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) theexpert has reliably appliedexpert's opinion reflects a reliable application of the principles and methods to the facts of the case.
Basically, the first change is admonishing judges that the admissibility of expert testimony is an issue for the judge to decide under the preponderance standard of Rule 104(a), and not, as some judges has been implicitly deciding, an issue for the jury under Rule 104(b) so long as a reasonable juror could decide the evidence is relevant. The second change is to clarify that judges should not look at an expert's methodology as an abstract matter, but rather ensure that the expert's stated opinion reflect a reliable application of reliable principles and methods.
These changes are different from what 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 through loud and clear.
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