As readers of the Blog undoubtedly know, the amendments toughening up Fed. R. Evid. 702 became effective on December 1, 2023. Here are the precise changes again:
Rule 702. Testimony by expert witnesses.
“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:”
“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;”
“b) the testimony is based on sufficient facts or data;”
“c) the testimony is the product of reliable principles and methods; and”
“d) the expert has reliably applied the expert’s opinion reflects a reliable application of the principles and methods to the facts of the case.”
New language in italics; deleted language struck out.
The three changes that the amended rule makes are: (1) putting the proponent’s burden of proof (preponderance) into the black letter of Rule 702; (2) specifying that “the court” – not a jury – must decide that all four of the substantive criteria for expert admissibility have been met; and (3), the court’s gatekeeping obligation is to ensure that all expert testimony satisfies Rule 702’s four requirements, especially that the expert’s “principles and methods” are reliably applied to the case-specific facts.