Trial Magazine

Since 2017, the Advisory Committee on Evidence Rules, which is charged with updating the Federal Rules of Evidence (FRE), has been considering whether to update FRE 702 on testimony by expert witnesses. Now nearing the end of an informal comment period, the committee is considering two specific changes to FRE 702: amendments on “overstatements” by expert witnesses and on a preponderance of the evidence standard for admission of testimony.

While the text of the proposed amendments is not yet available, AAJ has a good idea of what the language could look like. In September 2020, AAJ filed comments expressing opposition to the proposed amendments. ­Meanwhile, the corporate defense bar has filed comments expressing support for the amendments.

‘Overstatement’ amendment. We anticipate that the overstatement amendment would add language to prevent an expert from overstating the results that can be reliably obtained from the scientific method that expert used. Originally couched as a prohibition on forensic experts whose testimony included a “zero-error rate” when discussing ballistics testimony or 100% accuracy in other criminal evidence contexts, the amendment as currently discussed by the committee is not limited to criminal cases or forensic testimony. Overstatement may be a problem that warrants attention in the criminal context because it can lead a jury to conclude that there is proof beyond a reasonable doubt resulting in wrongful conviction. However, in the civil context, the overstatement issue can result in juries concluding that the plaintiff has not met the burden of proof.

In toxic tort cases or other cases when scientific evidence is needed to show causation for the plaintiffs’ injuries, jurors may perceive an expert’s lack of certainty in such a way that results in unjustified defense verdicts. And an expert’s uncertainty can make it easier for the defense to poke holes in the expert’s opinion or rebut it with its own expert.

Evidentiary standard amendment. The committee also is considering adding a preponderance of the evidence standard to the rule. The purpose of this amendment is to clarify that when the sufficiency of facts and data or the reliability of application methods is in question, the court must evaluate the admissibility of evidence rather than its weight—and admissibility must be proven to the court by a preponderance of the evidence under FRE 104(a).

But the preponderance standard isn’t in the text of FRE 104(a). Rather it has been determined through case law—Daubert and its progeny—leading to several potential problems with a preponderance amendment. Could inserting a preponderance standard in one rule but not the others create a negative inference about the standard in the other rules? Is inserting a preponderance evidentiary standard for expert testimony in criminal cases going to result in confusion over the burden of proof for conviction? Would the ­amendment create confusion about the weight issue generally under FRE 104(a)? At a minimum, the amendment would likely result in additional litigation over how to apply the standard.

Next steps. The committee will use the next few months to consider how to refine these amendments—including getting feedback from a committee of judges that oversees the work of the advisory committees. The committee is scheduled to meet in Washington, D.C., in April to vote on whether to move proposed amendments forward to a formal comment period. That six-month comment period would begin in August 2021 and would include two public hearings when the committee could hear directly from practitioners regarding the impact on their practices of the proposed changes.

We encourage AAJ members to actively participate in this amendment process and consider the impact of the proposals on all practice areas. Even members who practice primarily in state court should stay informed—most states follow the federal rules and will modify their own rules accordingly.

For further information or to get involved, please contact Amy Brogioli (amy.brogioli@justice.org) or me (susan.steinman@justice.org).

Susan Steinman is AAJ’s senior director of policy and senior counsel and can be reached at susan.steinman@justice.org. To contact AAJ Public Affairs, email advocacy@justice.org.