Contributor, The Volokh Conspiracy

Regular readers of this blog know that I’ve written a series of blog posts and a couple of law review articles decrying the way many federal courts, including and especially the courts of appeals, have ignored the language of amended Federal Rule of Evidence 702, the primary rule governing the admissibility of expert testimony. Instead, appellate courts cite their own circuit precedents — precedents that often predate, and directly conflict with, the Rule as amended in 2000. They insist that based on those precedents, Rule 702 establishes a “liberal” standard of admissibility that requires bending over backwards to allow the admission of dubious expert testimony. Indeed, contrary to unambiguous Supreme Court dictate, some courts have held that district court decisions excluding expert evidence should be judged by something other than the abuse of discretion standard dictated by the Supreme Court, because such lower-court decisions conflict with the Rule 702’s liberality.

Eric Lasker, a partner at Hollingsworth, LLP, and I have written an article just published in the William and Mary Law Review that (a) documents what the amendment to Rule 702 was trying to accomplish, with a focus on the largely-ignored legislative history of the amendment; (b) shows how recent judicial decisions have violated both the explicit text and intent of the Rule as amended; and (c) suggests new wording for the Rule to try to force recalcitrant judges to properly apply the reliability test (additions in italics, deletion in strikethrough).

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 testimony satisfies each of the following requirements:
(a) the expert’s scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue;
(b) the testimony is based on sufficient facts or data that reliably support the expert’s opinion;
(c) the testimony is the product of reliable and objectively reasonable principles and methods; and
(d) the expert has reliably applied the principles and methods to the facts of the case and reached his conclusions without resort to unsupported speculation.

Appeals of district court decisions under this Rule are considered under the abuse-of-discretion standard. Such decisions are evaluated with the same level of rigor regardless of whether the district court admitted or excluded the testimony in question. 

This Rule supersedes any preexisting precedent that conflicts with any or all sections of this Rule.

While we don’t believe that the existing language of the Rule (or Supreme Court precedent requiring application of the abuse of discretion standard, or the principle that statutes override prior precedents) is ambiguous, we do think that our proposal would serve to put guilty courts on notice that their consistent evasion of Rule 702’s reliability standard is unacceptable.