After five years of discussion, a proposed amendment to Federal Rule of Evidence 702 on testimony by expert witnesses has progressed to the Judicial Conference of the United States—the policy-making arm of the federal judiciary. If the Judicial Conference accepts the unanimous recommendations of both its Advisory Committee on Evidence Rules, which drafted the amendment, and its standing Committee on Rules of Practice and Procedure, which endorsed it this month, the amendment will be delivered to the Supreme Court for transmittal to Congress. Then, unless Congress intervenes, it will become effective by the end of next year.
But what effect would it have? According to the Advisory Committee chair, U.S. District Court Judge Patrick Schiltz, the amendment does not alter the meaning of the rule in the slightest. “It simply makes it clearer, makes it easier for people to understand, so that fewer mistakes will be made” (as reported June 7, in Bloomberg Law). Box 1 shows the proposed changes, which differ slightly from those discussed in the OSAC In Brief article of July 2021.
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) the
On the face of it, the amendment does little, if anything, to alter the substance of the existing rule. It adds the words “if the proponent demonstrates to the court that it is more likely than not” in front of the criteria for admitting expert testimony, but the Supreme Court had already noted that in exercising a longstanding “gatekeeping” role, the district court needs to determine whether the conditions for admitting expert testimony are “established by a preponderance of proof.” (Daubert v. Merrell Dow Pharmaceuticals, 509 U.S. 579, 592 n.10 (1993) (citing Fed. Evid. 104(a); as a result of public comments, the Advisory Committee substituted “more likely than not” for the “preponderance of evidence” to describe the proponent’s burden of persuasion on the issue of admissibility).
The other wording change concerns the well entrenched reliability-as-applied requirement (“the expert has reliably applied” in part (d)). The amendment uses an alternative phrase—“the expert's opinion reflects a reliable application.” Although one could argue that the specific reference to “opinion” limits the requirement to personal opinions, that is not the intent. An explanatory note that will accompany the revised rule (if and when it is adopted) makes it plain that it still must appear that the expert has applied a valid and reliable method proficiently and appropriately in making any and all findings and inferences. The only purpose of the change is “to emphasize that each expert opinion must stay within the bounds of what can be concluded from a reliable application” of a reliable method to the facts of the case. And, this Advisory Committee Note (ACN) adds that this directive is “is especially pertinent to the testimony of forensic experts,” for which “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” rather than “assertions of absolute or one hundred percent certainty—or to a reasonable degree of scientific certainty ... .”
During the six-month comment period that ended in February, the draft received well over 500 comments. The Reporter to the Advisory Committee found the public reaction “somewhat surprising, because the proposed amendment essentially seeks only to clarify the application of Rule 702 as it was amended in 2000—and that amendment received [only] 179 comments.” Lawyers from the plaintiffs’ side of the civil bar opposed the latest amendment, while defendants’ lawyers supported it.
There were relatively few comments about the implications of the additional words and the accompanying note for the areas of forensic science covered by OSAC. These too were (predictably) divided. The National District Attorneys Association (NDAA) objected to the ACN’s singling out forensic-science testimony as a problem and saw the amendments as “a solution in search of a problem.” But the New York City Bar Association expressed “particular concern [with] criminal prosecutions” and “the scientific validity of many types of ‘feature-comparison’ methods of identification, such as those involving fingerprints, footwear and hair.” The New York State Crime Laboratory Advisory Committee (NYSCLAC) objected to “changes limiting forensic science testimony” but then maintained that its laboratories already complied with the guidance in the ACN. The Union of Concerned Scientists questioned parts of the NDAA and NYSCLAC statements and insisted that “forensic evidence should be required to present courts with estimates of error rates relevant to their methodologies.” The Innocence Project and other organizations and individuals submitted a joint statement praising the changes and pressing for more. They wanted the text of the rule to contain a requirement that testimony is not only “the product of reliable principles and methods” (the current wording), but also to specify that it “includes the limitations and uncertainty of those principles and methods.”
The conflicting comments regarding forensic science produced no modifications. If the amendment is adopted, it will implement, to some extent, the 2016 recommendation of the President’s Council of Advisors on Science and Technology that “the Judicial Conference of the United States ... should prepare ... an Advisory Committee note, providing guidance to Federal judges concerning the admissibility under Rule 702 of expert testimony based on forensic feature-comparison methods.”
Author’s disclaimer: This report presents the views of the author. Their publication in In Brief is not an endorsement by NIST or OSAC, and they are not intended to represent the views of any OSAC unit. No estimate of the known or potential rate of error is available.
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