State Evidentiary Rule Reform

The Need for Reform in the States

State rules governing admissibility of expert evidence should be amended to ensure courts apply the appropriate standards to determine whether “expert testimony” is admissible. States should adopt changes similar to the federal 702 amendment to ensure the fair administration of justice in state courts.

States should update their evidence rules to ensure that unreliable science does not unjustly influence juries.

Progress By State

Many states are moving towards adoption of rule reforms in alignment with the federal  702 amendment.

Different states enact such changes in different ways – some through the judiciary and others through legislative action.

The Arizona Supreme Court issued an order on August 22 changing its Rule 702 to conform with the amended federal rule. The rule took effect on January 1, 2024.

https://www.azcourts.gov/rules/Rule-Amendments-from-Recent-Rules-Agenda-s

Legislation which includes an amendment to Alabama Rule of Evidence 702 has been introduced in both the State House and State Senate. Alabama Senate Bill 293 can be found here. Alabama House Bill 420 can be found here. Concurrently, material in support of a rule change has been submitted to the Supreme Court’s Evidentiary Rules Committee, which will meet again on April 16-18.

The Kentucky Supreme Court on February 5th approved an amendment to KRE 702 to make it essentially identical to amended FRE 702. The Supreme Court subsequently ordered a public comment period to run through April 15, coinciding with mandated state legislature review.  All comments received by the Court were in support.   The Kentucky Supreme Court also held a listening session on this and other rule changes at the Kentucky Bar Convention on May 9.  Action by the Kentucky Supreme Court finalizing the rule is anticipated by June.

David Schaefer, with Dinsmore Shohl in Louisville, made the initial presentation in support of amending KRE 702 in the summer of 2023 and has continued to lead advocacy efforts on behalf of the amendment.  The Kentucky Defense Counsel, joined by the DRI, IADC, FDCC, ADTA, and LCJ, submitted a public comment on April 11, 2024, in support of the rule change. See the Comment here.

Lloyd “Sonny” Shields (Irwin Fritchie Urquhart Moore & Daniels, LLC), a member of the Louisiana Law Institute Civil Procedure Committee, presented a proposed rule amendment to Committee to bring Louisiana Code of Evidence Article 702 into alignment with the amended federal rule. The Committee recommended and the Louisiana Supreme Court approved the amendment.   The rule change has been referred to the Louisiana State Legislature for approval.  Senate Bill 16 was introduced by Senator Pressley on February 25 on the recommendation of the Institute, It codifies the amendment as part of the Louisiana Code of Evidence effective August 1. Following consideration by the Senate Judiciary Committee, the bill was adopted by the Louisiana Senate by a vote of 38-0. The bill is now set for consideration in the House Judiciary Committee.

View the text of the legislation here.

The Louisiana House passed SB 16 by a vote of 90-0 on May 13. 

The bill implementing the amended expert evidence rule was signed into law by Louisiana’s Governor on May 21.  The rule change becomes effective on August 1.   Louisiana becomes the third state, joining Arizona and Michigan, to adopt the federal rule change.  

For additional information on the legislation, contact Dan Steen (Lawyers for Civil Justice), or Taylor Brett (Adams & Reese). For additional information on the legislation, contact Dan Steen (Lawyers for Civil Justice), or Taylor Brett (Adams & Reese).

Following public comment that closed on March 5, the Maryland Supreme Court without elaboration rejected the proposal of the state’s Standing Committee on Rules of Practice and Procedure to amend Maryland Rule of Evidence 5-702. The Supreme Court’s order is found here. LCJ’s comment in support of the rule change can be found here.

On March 27th, 2024, the Michigan Supreme Court adopted the amendment to Michigan Rule of Evidence 702 on expert evidence admissibility, which went into effect on May 1st. Michigan joined Arizona in bringing its expert evidence rule it into line with the amended federal rule.

LCJ thanks Mary Massaron, of Plunkett Cooney, and Mark Behrens, of Shook Hardy, for their advocacy on behalf of the amended rule. Mary and Mark prepared and filed the linked public comment filed with the Michigan Supreme Court.

https://www.courts.michigan.gov/49607b/siteassets/rules-instructions-administrative-orders/proposed-and-recently-adopted-orders-on-admin-matters/adopted-orders/2022-30_2024-03-27_formor_amdmre702-804.pdf  

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)-(c) [Unchanged.]

(d) the expert’s opinion reflects a reliable application of has reliably applied the principles and methods to the facts of the case.

Michigan lawyers are encouraged to file comments on the proposed amendment. 


Massaron and Behrens Comment on Proposed Michigan Rule of Evidence 702 Amendment

January 31, 2024
View Comment Letter

The Ohio Supreme Court published a notice on September 12 seeking comment on a proposed change to Ohio Rule of Evidence 702. This is the first of two comment periods, if the Court submits it early next year to the General Assembly, it will take effect on July 1, 2024, unless it is withdrawn or both houses vote to reject it. The proposed amendment adds a preponderance of the evidence standard for expert witness qualification. The rule currently states the criteria that must be satisfied for a witness to testify as an expert.

Jim McCrystal (Sutter O’Connell) is a point of contact for organizations planning to participate in the comment periods.

https://www.supremecourt.ohio.gov/ruleamendments/documents/2024%20Practice%20&%20Procedure%20Proposals.pdf


Comment of the Ohio Alliance for Civil Justice and others in aligning Ohio Rule of Evidence 702 with the amended federal rule

January 16, 2024
View Comment Letter
Website

RESOURCE

State Advocacy One-Pager

RESOURCE

IADC

RESOURCE

FDCC
Website

RESOURCE

DRI
Website