Rule 702 Amendments: Holding Experts to a Higher Standard
On December 1, 2023, two major amendments were made to Federal Rule of Evidence (FRE) 702. Due to these changes, state courts, particularly Kentucky and Ohio, have also amended their respective rules.
FRE 702 is the evidence rule that pertains to admitting expert testimony. The entirety of the rule, including the changes, is provided below:
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. the
expert has reasonably appliedexpert’s opinion reflects a reliable application of the principles and methods to the facts of the case.
The first change to the rule establishes the burden of proof, preponderance of the evidence[1], and places that burden on the individual intending to introduce the evidence (the proponent). The proponent must satisfy this burden for each of the four prongs, (a)-(d), and failure to do so results in the expert opinion not being admitted into evidence.
The May 15, 2022, Report of the Advisory Committee on Evidence Rules shed some light on why this amendment was made.[2] The Committee explained that some courts have been applying a standard of weight, as opposed to the proper standard of admissibility by preponderance of the evidence. [3] This distinction is crucial because admissibility ensures that only relevant and reliable evidence is considered by the jury, while weight pertains to the persuasiveness of the evidence, which is a matter for the jury to decide after the evidence has been deemed admissible.
The second change is not as clear on its face. The Committee aimed to address the issue of experts overstating “what can be reliably concluded.”[4] “The language of the amendment more clearly empowers the court to pass judgment on the conclusion that the expert has drawn from the methodology.”[5] Previously, the rule essentially only required an assessment of the methodology’s reliability. Now the rule explicitly requires that (1) the methodology is reliable and (2) the methodology has been reliably applied to the conclusion.
As a result of these amendments, both Kentucky and Ohio have made similar amendments to their evidence rules. On July 1, 2024, Kentucky’s amendments to KRE 702- Testimony by Experts, became effective. These amendments mirrored the changes made to the Federal Rule. Also on July 1, 2024, Ohio amended its Rule 702 – Testimony by Experts, to comport with FRE 702. Although it remains to be seen how Kentucky and Ohio courts will apply these new rules, it is anticipated that they will clarify the admissibility standard and exclude unreliable expert testimony, as intended by the Federal Advisory Committee.
Authors:
Ashlee Taylor, Law Clerk and Rising 3L at NKU Chase College of Law
Scott Guenther, Member
[1] Interestingly, the Advisory Committee initially approved an amendment that explicitly stated, “preponderance of the evidence” but an influx of comments expressed concern about the phrase because of its potential to cause courts to only consider “admissible evidence.” Comm. on Rules of Prac. and Proc. of the Jud. Conf. of the United States, Washington, D.C. 20544 (Released on May 15, 2022) https://www.uscourts.gov/rules-policies/archives/committee-reports/advisory-committee-evidence-rules-may-2022. The Advisory Committee disagreed with these comments but nonetheless decided to change the language. Id.
[2] Id.
[3] Id.
[4] See id.
[5] Id.