Expert Witness Amendment to Federal Evidence Rule 702: What it means

As of December 1, 2023, changes to the Federal Rules of Evidence clarify and refine the expert witness criteria

Last Updated March 2024

Recent changes to Federal Rule of Evidence (FRE) 702 are pivotal in determining the admissibility of expert testimony in federal courts. These amendments, which were approved by the U.S. Supreme Court and took effect on December 1, 2023, aim to clarify and refine the criteria for expert witness qualifications and their testimony's admissibility.


The changes to the rule are below. Additions to the rule are indicated by underlines, and deletions by strikethrough text:


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:

  1. 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;
  2. the testimony is based on sufficient facts or data;
  3. the testimony is the product of reliable principles and methods; and
  4. the expert has reliably applied expert’s opinion reflects a reliable application of the principles and methods to the facts of the case.

Heightening Judicial Scrutiny

Perhaps most importantly, the modifications to FRE 702 underscore the court's responsibility to act as a gatekeeper, ensuring that expert opinions are grounded in reliable principles and methods. The amendment highlights the necessity for courts to scrutinize the methodology and basis underlying expert testimony, ensuring that it remains within the bounds of what can be reliably concluded from the available evidence. This aspect of the amendment aims to prevent experts from making unsupported or speculative claims and ensures that their testimony is firmly rooted in sound scientific, technical, or specialized knowledge. By strengthening judicial gatekeeping, the amendment enhances the overall credibility and trustworthiness of expert testimony, thus contributing to fair and just adjudication of cases in federal courts.

Additionally, The amendment clarifies that expert qualifications must meet the "more likely than not" standard, addressing past misapplications by courts. This change signifies that once a court determines an expert’s testimony meets the admissibility requirements, any further challenges will only affect the testimony's weight, not its admissibility.

Furthermore, the updated rule specifies that expert knowledge should assist the fact-finder in understanding evidence or resolving a disputed fact, countering any inclination toward imposing a stricter standard than necessary on expert testimony's helpfulness.


Updated Approach to Using Expert Testimony

Litigators are advised to incorporate these changes into their approach to using expert testimony, acknowledging that the amendments will likely influence how courts evaluate such testimony moving forward. Clarifications provided by the amendments will require litigators to carefully consider the preparation and presentation of expert witnesses, ensuring that their methodology and conclusions are defensibly applied to the case at hand.

The implications of these changes are significant, as they will potentially alter how expert testimony is presented and scrutinized in federal courts. 


Page Vault is a Self-Authenticating Solution

In light of the recent amendments to FRE 702, which raise the standards for expert testimony in court, it's crucial for litigation teams to be meticulous in their selection and preparation of experts. With expert testimony coming under more scrutiny, when the need for expert testimony can be feasibly avoided, litigators should take that path. 

When it comes to digital evidence collections, FRE 902(13) provides a valuable avenue. This rule allows evidence obtained through a reliable electronic process to be introduced via certification from a qualified individual, bypassing the need for in-person expert testimony. Page Vault offers a self-authenticating solution tailored to meet the standards outlined in FRE 902(13) - and can provide certifications (affidavits) in accordance with this rule. With Page Vault, litigation teams can confidently collect and preserve online content, either internally with our software or externally with our outsourced service, knowing that they are following all relevant rules of evidence. By leveraging Page Vault's capabilities, litigation teams can streamline their processes, save time and resources, and strengthen the admissibility of their digital evidence in court.


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