An intelligent evaluation of facts is difficult or impossible without scientific, technical, or other specialized knowledge. In the courtroom, the most common source of this knowledge is the expert witness, but what governs the admissibility of expert evidence in the federal courts?
Rule 702 of the Federal Rules of Evidence governs this issue. In 2000, Rule 702 was amended to clarify that questions of the admissibility of expert evidence should be decided by a preponderance of the available evidence. The U.S. Supreme Court has also deputized trial courts as gatekeepers over the reliability of expert testimony and provided guidance to judges on how to fulfill that critical role.
However, various courts have missed the mark. And when courts misinterpret or misunderstand the standard of Rule 702, it has an outsized impact on the development of a case, followed by real-work impact.
On November 9, ILR submitted comments to the Advisory Committee on Evidence Rules regarding possible amendments to Rule 702. The letter, linked here, stressed two main points:
1) That the admission of expert evidence should not vary by jurisdiction; and
2) That evidence used in class certification proceedings should also be governed by the standard laid out in Rule 702.
ILR and others in the defense community have been urging the Committee to focus on the need for clarity about the courts’ “gatekeeping” role in evaluating the admissibility of expert testimony. While currently under consideration, the Committee’s decision to amend Rule 702 could help address this issue by obliging courts to prioritize that gatekeeping role.