The following report appeared in the OSAC newsletter OSAC In Brief, July 2021, at 3-7 with the uninspired title "Proposed Changes to Federal Rule of Evidence 702." It was followed by an update in the June 2022 issue (about to be reproduced on this blog). Both are meant to be boringly factual. More opinionated remarks may appear later.
On April 30, the federal Advisory Committee on Evidence Rules unanimously proposed two changes to the wording of Federal Rule of Evidence 702. The rule, which many states have adopted in one form or another, provides for testimony by expert witnesses. The changes do not alter the meaning of the rule, but they can be seen as a course-correction signal telling courts to be more vigorous in ensuring that “forensic expert testimony is valid, reliable, and not overstated in court.”
The quoted words come from a report of the Advisory Committee. Facilitating such testimony also is part of OSAC’s raison d’être. This article for In Brief therefore describes the proposed amendment, a little bit of its history, the steps required for it to be enacted into law, and its significance for OSAC’s work.
The Proposer: An Advisory Committee to the Standing Committee of the Judicial Conference
The Judicial Conference of the United States is the policymaking organ of the judicial branch of the federal government. Composed of the Chief Justice of the U.S. Supreme Court, the chief judges of the 13 federal judicial circuits, and select federal district judges, it also is required by statute “to carry on a continuous study of the operation and effect of the general rules of practice and procedure" that apply in the federal courts (and, with some variations, in many state court systems as well). The Conference relies on a “Committee on Rules of Practice and Procedure, commonly referred to as the ‘Standing Committee.’" The Standing Committee, in turn, relies on advisory committees on appellate, bankruptcy, civil, criminal, and evidence rules. These advisory committees are comprised of “federal judges, practicing lawyers, law professors, state chief justices, and representatives of the Department of Justice.” (Quotations are from the Administrative Office of the U.S. Courts.) The Advisory Committee on Evidence Rules (which we can abbreviate as ACER) is one of these committees.
The Proposed Text: Two Wording Changes
Rule 702 went into effect in federal courts in 1975. It was one sentence long. The Supreme Court famously interpreted it in Daubert v. Merrell Dow Pharmaceuticals, 509 U.S. 579 (1993), a somewhat ambivalent and abstract opinion. The Court expounded further in cases in 1997 and 1999. The rule was rewritten to incorporate the teachings in these cases in 2000, leading to the version with the longer sentence in the right-hand side of Box 1.
| BOX 1. FEDERAL RULE OF EVIDENCE 702 THEN AND NOW |
| The Rule in 1975 |
The Rule in 2021 |
| If scientific, technical, or other 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 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:
(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 the principles and methods to the facts of the case. |
The proposed amendment makes two seemingly minor changes, shown in Box 2:
BOX 2. THE ADVISORY COMMITTEE’S PROPOSED AMENDMENT TO RULE 702
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 has demonstrated by a preponderance of the evidence 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 expert has reliably applied expert’s opinion reflects a reliable application of the principles and methods to the facts of the case.
Reading these words, one might well ask what is going on. The first change seems to state the obvious (to lawyers, anyway). A footnote in Daubert already indicates that in the “preliminary assessment of whether the reasoning or methodology” possesses “evidentiary reliability,” the trial court must be satisfied by “a preponderance of proof” because that is the threshold for all “[p]reliminary questions concerning the qualification of a person to be a witness, the existence of a privilege, or the admissibility of evidence.” It may not hurt to state this standard in the text of the rule (although including it after the opening clause about qualifications awkwardly fails to modify the qualifications part of the rule). But why bother?
Similarly, the change to Part (d) is potentially confusing because it limits the “reliable application” prong of the rule to expert “opinion” even though, as the Advisory Committee that drafted the original rule noted, it is “logically unfounded” to “assume[] that experts testify only in the form of opinions.” Instead, “[t]he rule … recognizes that an expert on the stand may give a dissertation or exposition of scientific or other principles relevant to the case, leaving the trier of fact to apply them to the facts.” But aside from the probably unintended limitation of the as-applied prong to opinions, why bother? What is the difference between testimony when an expert has “reasonably applied the principles and methods” and testimony that “reflects a reasonable application of the principles and methods”?
The answers lie in ACER’s official note prepared to accompany the rule, the minutes of its meetings, and its periodic reports to the Standing Committee on its progress in revising the rule.
The Purpose of the New Text
For OSAC, the most salient parts of the note of the Advisory Committee are in Boxes 3 and 4. As to the first change, regarding “preponderance,” ACER believed that
BOX 3. Part of ACER’s Proposed Note Explaining Its First Proposed Change
[M]any courts have held that the critical questions of the sufficiency of an expert’s basis, and the application of the expert’s methodology, are questions of weight and not admissibility. These rulings are an incorrect application of Rules 702 and 104(a). … The Committee concluded that emphasizing the preponderance standard in Rule 702 specifically was made necessary by the courts that have failed to apply correctly the reliability requirements of that rule. … [Explicitly incorporating the standard] means that once the court has found the admissibility requirement to be met by a preponderance of the evidence, any attack by the opponent will go only to the weight of the evidence.
A major push for this change came from individuals and organizations concerned with civil litigation in which, they believed, courts have admitted expert opinions that a drug or chemical is harmful without adequately verifying that there is a body of scientific literature sufficient to let a reasonable expert conclude that the substance can cause the kind of harm claimed to have occurred under the conditions of the case. However, it also will remind judges in criminal cases that they must have proof that the scientific literature is sufficient to support the findings of forensic-science experts.
As Box 4 shows, the second part of the “amendment is especially pertinent to the testimony of forensic [science] experts in both criminal and civil cases”:
BOX 4. Part of ACER’s Proposed Note Explaining Its Second Proposed Change
Rule 702(d) has also been amended to emphasize that a trial judge must exercise gatekeeping authority with respect to the opinion ultimately expressed by a testifying expert. … The amendment is especially pertinent to the testimony of forensic experts in both criminal and civil cases. Forensic experts should avoid assertions of absolute or one hundred percent certainty—or to a reasonable degree of scientific certainty—if the methodology is subjective and thus potentially subject to error. In deciding whether to admit forensic expert testimony, 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. Expert opinion testimony regarding the weight of feature comparison evidence (i.e., evidence that a set of features corresponds between two examined items) must be limited to those inferences that can reasonably be drawn from a reliable application of the principles and methods. This amendment does not, however, bar testimony that comports with substantive law requiring opinions to a particular degree of certainty. … [N]othing in the amendment requires the court to nitpick an expert’s opinion in order to reach a perfect expression of what the basis and methodology can support. The … standard does not require perfection. On the other hand, it does not permit the expert to make extravagant claims that are unsupported by the expert’s basis and methodology.
It is the ACER note, much more than the revisions to the text of the rule, that has implications for forensic-science evidence. As the note indicates, the committee was especially concerned with forensic-science testimony. Its briefing materials included summaries of federal cases from across the spectrum of forensic sciences that raised the issue of “overstatement.” Furthermore, the idea of a new Advisory Committee Note came from the 2016 report of the President’s Council of Advisors on Science and Technology. PCAST called on “the Judicial Conference [to] prepare, with advice from the scientific community, a best practices manual and an Advisory Committee note, providing guidance to Federal judges concerning the admissibility under Rule 702 of expert testimony based on forensic feature-comparison methods.”
Apparently, PCAST did not realize that ACER is not empowered to write new notes to old rules. At a symposium convened by ACER in 2017, PCAST co-chair and newly appointed Presidential science advisor, Eric Lander, advised the committee as follows: “If an advisory note is a possibility, I’d favor it. If it’s not, change a comma in the rule and then write a new advisory note. Change one word, any word and write an advisory note.” Advisory Comm. on Evid. Rules Symposium on Forensic Expert Testimony, Daubert, and Rule 702, 86 Ford. L. Rev. 1463, 1523 (2018). This change-a-word artifice is more or less what is happening.
What Is Next in the Rulemaking Process?
The proposed amendment is just that—proposed. To become law, the ACER amendment and accompanying note must be approved by the Standing Committee after a six-month period for public comment and testimony (after which ACER reviews and can revise the proposed amendment and seek more comment). The Standing Committee then reviews the final drafts. It can revise and return the draft to ACER, or it can submit the amendment and note to the full Judicial Conference for its review. If the Judicial Conference approves, the drafts go to the Supreme Court, which normally transmits them to Congress with no substantive review. Congress then can adopt, reject, modify, or defer the rule change, but if Congress is silent for seven months, the amendment becomes effective at the end of the year.
Plainly, the proposal, which was four years in the making, still has a long way to go, but the very fact that ACER deliberated at length and expressed concern about forensic-science testimony, overstatement, and error probabilities could have more immediate impact in litigation.
Implications for OSAC
To help satisfy the proof requirements of Rule 702 (both as it stands and as it might be amended), subcommittees drafting standards for making findings and for reporting or testifying should specifically cite the scientific literature that supports each part of the standard. Valid estimates of potential error rates (or related statistics on the accuracy of results), or procedures to arrive at these estimates, should be part of such standards. Scientific and Technical Review Panels (STRPs) already are instructed to look for this content or for an explanation in the standard of why methods for ascertaining and expressing uncertainty in measurements, observations, or inferences are not present in the standards they review.
The repeated references to “overstatement” in ACER’s deliberations and materials should reinforce the desire of OSAC units to address the admittedly difficult problem of prescribing standards for testimony—and to use phrases in all standards that involve results that will satisfy the insistence on “those inferences that can reasonably be drawn from a reliable application of the principles and methods.” Cases on firearms-toolmark identifications (called “ballistics” cases in the ACER materials) suggest that judicial efforts are unlikely to produce the best solution. The Department of Justice has attempted to confront this issue with its Uniform Language for Testimony and Reports standards (ULTRs). It argued to ACER that these ULTRs help solve the problem of overclaiming, but one response was that because there are no such standards in laboratories generally, a new Advisory Committee Note is necessary. OSAC units still can help fill this gap if they act quickly.
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. The error rate associated with them is not known.
