Rule 702 of the Federal Rules of Evidence governs expert witness testimony in federal courts. On April 24, 2023, the United States Supreme Court approved an amendment to Rule 702 (the “Amendment”), which will go into effect on December 1, 2023. The amended version of Rule 702 is below; crossed out language has been deleted from the Rule, and bold language represents new language.
The Amendment contains two key revisions. First, the Amendment clarifies that the admissibility of expert testimony under Rule 702 is governed by the preponderance of the evidence standard. The Advisory Committee noted that the Amendment was prompted by “many courts” adopting an “incorrect application” of Rule 702. Under the “incorrect application,” Courts ignored the preponderance standard and incorrectly declared subsections (b), (c), and (d) as questions of weight, not admissibility, thus leaving the critical question of reliability to the jury. The Amendment addresses the “incorrect application” issue by clarifying the preponderance standard under Rule 702—expert testimony is admissible only if the proponent “demonstrates to the court that it is more likely than not that” the proffered expert testimony is reliable.
Second, the Amendment clarifies that expert opinions are confined to only those conclusions that may be drawn from a “reliable application of the principles and methods to the facts of the case.” This revision reinforces the “gatekeeping” function of trial judges. As “gatekeepers,” trial judges have a duty to ensure that expert testimony is both relevant and reliable before it reaches the jury, because jurors often lack the specialized knowledge necessary to evaluate the merit of an expert opinion. By reinforcing the “gatekeeping” role of trial judges, the Amendment ensures that expert witness admissibility requirements are determined by the trial judge under a preponderance standard.
The Amendment to Rule 702 will have a significant impact on the legal landscape. Speculative and unreliable expert testimony that previously bypassed the court’s gatekeeping function based on a misapplication of Rule 702 will no longer be admissible. Litigants should be aware of the Amendment and approach expert witness testimony accordingly, especially when challenging admissibility.
