Proposed Amendments to FRE 702: The Court as the Guardian of Expert Evidence

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The Civil Rules Advisory Committee (“the Committee”) of the Federal Judicial Conference recently approved two significant changes to Rule 702 of the Federal Rules of Evidence relating to expert testimony. The proposed first amendment seeks to clarify and emphasize that existing law requires the expert’s sponsor to establish all the conditions for admissibility of Rule 702 by a preponderance of evidence. The proposed second amendment to Rule 702 (d) is intended to remind courts that, in exercising their custodial role, they must ensure that the expert’s opinion reflects a “reliable application” of the principles and methods to the facts. of the case. The public comment period for the proposed changes remains open until February 16, 2022 and is therefore subject to change. If passed as proposed, the role of the trial judge as custodian in determining the admissibility of expert evidence should be crystal clear.

History of Rule 702

In Daubert v. Merrell Dow Pharmaceuticals, 509 US 579 (1993), the United States Supreme Court held that Rule 702 and not the “general acceptance” standard of Frye v. United States, 293 F. 1013 (DC Cir. 1923), governed the admissibility of expert testimony in federal court. At this moment, Rule 702 provided: “If scientific, technical or other specialized knowledge helps the trier of fact to understand the evidence or to determine a fact in question, a witness qualified as an expert by his knowledge, skills, experience, training or education can attest to this in the form of an opinion or the like.

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