04/27/2023 - US Article: Changes to the Federal Expert Witness Rule 702


It is essential to have a thorough understanding of the rules governing expert testimony and to stay up-to-date with any changes.

In December 2023, two significant amendments are expected to take effect for Federal Rule of Evidence 702.

What to Expect with Changes to the Federal Expert Witness Rule

FRE 702 Today

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:
1. 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;
2. b) the testimony is based on sufficient facts or data;
3. c) the testimony is the product of reliable principles and methods; and
4. d) the expert has reliably applied the principles and methods to the facts of the case.

The Pending Amended Rule Displaying the Changes

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:
1. 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;
2. b) the testimony is based on sufficient facts or data;
3. c) the testimony is the product of reliable principles and methods; and
the expert’s opinion reflects a reliable application of the principles and methods to the facts of the case.

The amendments aim to ensure uniformity in the application of the rule across the federal circuits. Under the amended rule, expert opinions must stay within the bounds of what can be concluded from a reliable application of the expert’s basis and methodology.

The amendments pertain to forensic experts' testimony in both criminal and civil cases and require judicial gatekeeping to evaluate the reliability of scientific and other methods underlying expert opinions.

It is clear nothing in the amendment imposes any new, specific procedures. The amendments are intended to clarify that Rule 104(a)’s requirement applies to expert opinions under Rule 702. Likewise, nothing in the amendment requires the court to overly sift an expert’s opinion in order to reach a perfect expression of what the basis and methodology can support.

The Rule 104(a) standard does not require perfection. Conversely, it does not permit the expert to make claims that are unsupported by the expert’s basis and methodology.
The proposed amendments are not without criticism. For example, numerous questions arise as to the future of Daubert hearings. Only time will tell their impact.

Plus, Maryland Rule 2-402(g) has been amended, effective Jan. 1, 2023, to align with its federal counterpart, protecting communications among another party’s attorney and expert witnesses and making draft expert reports not discoverable.

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