If you’re planning to use an expert witness in your next case, it’s critical that they pass the reliability test outlined in an amendment proposed by the Advisory Committee on Evidence Rules (ACER) (Valid as of December 2023.)
Evidence Rule 702 As It Stands Now.
Expert testimony, typically assumed reliable and admissible in court, must be based on sound principles and methods that are applied to the facts of the case. If the Supreme Court passes the amendment, ensuring such will become more stringent as of December 1, 2023. Currently, Rule 702 does not specify the standard of proof for expert testimony.
Purpose of the Amendment.
ACER’s proposal is intended to make it clearer that the party who wants to use an expert must show, by a preponderance of evidence, that the expert’s knowledge, facts, methods, and opinions are, more likely than not, reliable, and relevant. This means that judges will have more power to exclude experts who make claims that go beyond what their methods can support. The end goal is to help reject junk science and unreliable forensic evidence.
The Amendment’s Impact on Litigation.
It is the hope of ACER that the amendment will prevent experts from making unsupported or exaggerated claims that go beyond their basis and methodology. Trial judges may find themselves with a greater role in determining the authenticity of expert opinions by challenging expert opinions with more scrutiny. Consequently, litigators will need to do more homework as they may have to defend the admissibility of evidence and opinions brought forth by their experts.
