On Friday, December 1, 2023, the amended Federal Rule of Evidence (FRE) 702 goes into effect. The amendment reiterates the rule’s requirements, namely that the proponent of expert testimony must meet all of the rule’s substantive standards for admissibility by a preponderance of the evidence, and in particular that an adequate basis for such testimony is a prerequisite to admissibility. 

The amendment

Based on the Rules Committee’s unanimous approval, and the Supreme Court’s ultimate adoption, the amended FRE 702 will read as follows:

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:

1. 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
2. the testimony is based on sufficient facts or data
3. the testimony is the product of reliable principles and methods
4. the expert has reliably applied the expert’s opinion reflects a reliable application of the principles and methods to the facts of the case

The effects

The updated language will clarify that FRE 104(a)’s “preliminary question” requirement applies to expert opinions under FRE 702. In other words, the amended rule will more clearly distinguish between the court’s responsibility under FRE 104(a) (to decide the preliminary question of whether a witness is qualified and the evidence admissible) and the 104(b) standard (that allows the jury to determine how much weight to give the evidence after the court has ruled it admissible). 

While this amendment constitutes a clarification rather than outright change, the effects will be substantial based on the rule’s history of misapplication across federal courts.  As the Advisory Committee notes explain: “[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).”  This amendment will thus serve to safeguard against this error (as it has already in many courts). 

This amendment will emphasize the court’s gatekeeping responsibility by requiring the judge to assess reliability of both the expert’s conclusions and the underlying methodology, making it more difficult for unsound testimony to reach the jury. 

For more information, please contact the authors.