After posting a description of the changes to the proposed amendment to Federal Rule of Evidence 702, I received the following inquiry:
Which one is actually the proposal? "More likely than not" or "by a preponderance of the evidence"? The former seems to be a weakening, the latter (even if it is redundant for lawyers) puts forensic scientists on notice. Use of the word "evidence" in the latter is, however, potentially confusing. "Evidential reliability" is about the "reliability" [sic] of the "evidence", i.e., the "scientific validity" of the methods applied to arrive at the "opinion". The proposed change (if it is the proposed change) seems to refer to "evidence" about the "reliability" of the "evidence" (in which the first and second instance of the word "evidence" do not refer to the same thing).
The first iteration of the amendment used "preponderance." It read, "[a]n [expert] witness ... may testify ... if the proponent has demonstrated by a preponderance of the evidence that" the proposed evidence satisfies various requirements regarding what the Supreme Court in Daubert v. Merrell Dow Pharmaceuticals, 509 U.S. 579 (1993), called "evidentiary reliability." Now the proposed text is, "An [expert] witness ... may testify ... if the proponent demonstrates to the court that it is more likely than not that" the proposed evidence satisfies these requirements.
Why the change? Partly because of the elliptical nature of the original formulation and partly because of the awkwardness of the construction "evidence that the evidence." As the rest of this posting explains, the new (green) version is better drafted, but the idea was never in doubt.
The governing principle comes from Federal Rule of Evidence 104(a) as interpreted in Bourjaily v. United States, 483 U.S. 171 (1987). The rule begins with a general observation that
The court must decide any preliminary question about whether a witness is qualified, a privilege exists, or evidence is admissible. In so deciding, the court is not bound by evidence rules, except those on privilege.
Fed. R. Evid. 104(a). So to decide whether proffered evidence is admissible at trial, the court can consider all pertinent, non-privileged information presented to it, whether or not the information about admissibility would be admissible in a trial.
But Rule 104 is silent on how confident the judge should be that the proposed evidence satisfies the requirements for admissibility. That is where Bourjaily comes in. In that case, the government wanted to introduce out-of-court statements of a coconspirator as evidence against the defendant. To avoid the rule against hearsay, it sought to persuade the court to apply the rule that certain statements of conspirators are admissible against everyone in the conspiracy. Defendant's membership in the conspiracy was thus a preliminary question for the court, and the Bourjaily Court explained that
We are ... guided by our prior decisions regarding admissibility determinations that hinge on preliminary factual questions. We have traditionally required that these matters be established by a preponderance of proof. Evidence is placed before the jury when it satisfies the technical requirements of the evidentiary Rules, which embody certain legal and policy determinations. The inquiry made by a court concerned with these matters is not whether the proponent of the evidence wins or loses his case on the merits, but whether the evidentiary Rules have been satisfied. Thus, the evidentiary standard is unrelated to the burden of proof on the substantive issues, be it a criminal case ... or a civil case. ... The preponderance standard ensures that, before admitting evidence, the court will have found it more likely than not that the technical issues and policy concerns addressed by the Federal Rules of Evidence have been afforded due consideration. ... Therefore, we hold that, when the preliminary facts relevant to Rule 801(d)(2)(E) are disputed, the offering party must prove them by a preponderance of the evidence.
483 U.S. at 175-76 (note omitted).
Applying Bourjaily to the preliminary questions in Rule 702, it is quite clear that the trial court has to find that "evidentiary reliability" under Rule 702 is more probable than not. To foreclose any debate about it, in Daubert itself, the Court pointed to the preponderance standard, writing that "[f]aced with a proffer of expert scientific testimony, then, the trial judge must determine at the outset, pursuant to Rule 104(a), whether the expert is proposing to testify to (1) scientific knowledge that (2) will assist the trier of fact to understand or determine a fact in issue." 509 U.S. at 592.
Yet, many public commenters did not see this. Some comments claimed that the word "evidence" in "preponderance of the evidence" would constrain the court to considering only such evidence as would be admissible at trial in deciding whether the proposed expert testimony is admissible. Other comments claimed that the phrase would keep previously admissible evidence from juries. Indeed, "almost all of the fire was directed toward the term 'preponderance of the evidence.'” Advisory Comm. on Evid. Rules, Report to the Standing Committee, May 15, 2022, at 7.
The Advisory Committee unabashedly rejected both these claims. In its report to the Standing Committee, it wrote that:
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.
Id. Nevertheless,
[T]he 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.
Id. Finally,
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.
Id. Overlooked in this debate over the niceties of the phrase "preponderance of the evidence" is a different drafting point. The proposed amendment makes it explicit that the standard pertains to the court's role in considering scientific validity, but it does not do the same for the other requirements of Rule 702--namely, that the witness be "qualified as an expert by knowledge, skill, experience, training, or education." That a witness is qualified to testify also must be established as more probable than not. For a rare case excluding testimony from a latent fingerprint examiner because she ran into problems in demonstrating proficiency, see United States v. Cloud, No. 1:19-cr-02032-SMJ-1, 2021 WL 7184484 (E.D. Wash. Dec. 17, 2021) (false exclusion in casework, a false exclusion on a proficiency test, and receiving help from her supervisor on a follow-up proficiency test).
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