Amended Federal Rule of Evidence 702 became effective on December 1,
2023 after years of consideration and debate. The Advisory Committee’s
internal research, as well as information conveyed in written comments and
public hearings, established that changes were needed because federal judges
were not uniformly following the preponderance standard at the root of the
judicial gatekeeping requirement. Additionally, some courts were overlooking
Rule 702 subsections (b) and (d) and improperly treating experts’ factual basis
and methodological application as credibility considerations, rather than
admissibility matters that the judge must decide. Also, some experts were
allowed to express an exaggerated degree of confidence or precision in their
opinions that their analysis could not support. These practices were erroneous,
and the amendment sought to render these misunderstandings incompatible
with the language of the rule.
Now that amended Rule 702 has been in place for a full year, decisions
applying the new rule show how the courts have adjusted course to account for
the changes. Ten themes signaling recognition of the corrective purposes of the
amendment have emerged.
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