By Lee Mickus, a partner in the Denver, CO office of Evans Fears & Schuttert LLP.
On December 1, 2023, amended Federal Rule of Evidence 702 became effective. The Advisory Committee’s Note declares that the amendments were put into place to “clarify and emphasize” the applicable burden of proof and the admissibility criteria, and not to change the standard. Put more directly, the Rule 702 amendments have a corrective purpose: before the amendments, some courts had “failed to apply correctly the reliability requirements of that rule.” In its final report to the Judicial Conference Committee on Rules of Practice and Procedure prior to adoption of the proposed amendments, the Advisory Committee identified two frequent errors that courts had been
making, and that the amendments sought to remedy:
the Committee resolved to respond to the fact that many courts have declared that the reliability requirements set forth in Rule 702(b) and (d) – that the expert has relied on sufficient facts or data and has reliably applied a reliable methodology – are questions of weight and not admissibility, and more broadly that expert testimony is presumed to be admissible. These statements misstate Rule 702, because its admissibility requirements must be established to a court by a preponderance of the evidence.
Report of the Advisory Committee on Evidence Rules to the Standing Committee on Rules of Practice and Procedure, May 15, 2022, at 6.
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