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 is set to become effective on January 1, 2024.
The Kentucky Supreme Court approved an amendment to KRE 702 to make it essentially identical to amended FRE 702, in action taken on February 5. The Chief Justice will report the amendment to the Kentucky General Assembly and the rule is expected to go into effect upon the legislature’s adjournment, on or after April 15.
Lloyd “Sonny” Shields (Irwin Fritchie Urquhart Moore & Daniels, LLC) is presenting for consideration a proposed rule amendment to the Louisiana Law Institute Civil Procedure Committee, where rule changes are proposed. Sonny Shields is a member of the Committee.
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if the Court submits it early next year to the General Assembly, it will take effect on July 1, 2024, unless it is withdrawn or both houses vote to reject it.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.
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
The Michigan Supreme Court has published a proposed amendment to Michigan Rule of Evidence 702 and announced a public comment period that will run through February 1, 2024. The Court has also announced it will hold a public hearing. The amendment would bring Michigan into substantial conformity with FRE 702.
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:
(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. Comments can be filed via the following link:
Massaron and Behrens Comment on Proposed Michigan Rule of Evidence 702 Amendment
January 31, 2024
View Comment Letter