New Jersey was one of the first jurisdictions to recognize the increasing importance of expert testimony in modern litigation, one of the first to stress the importance of judicial gate keeping, and one of the first to adopt a more structured multi-factor test for examining the validity of expert testimony. Unfortunately, New Jersey can no longer claim it is on the cutting edge when it comes to ensuring bad science is barred from the courtroom.
New Jersey is one of only a handful of states that have not yet adopted some form of the federal Daubert standard for expert testimony. Under the Daubert standard, before a witness offers expert testimony the judge must:
- Determine whether the offered evidence is based on sufficient facts or data;
- Confirm that the evidence is the product of reliable principles and methods; and
- Ensure the evidence is based on the application of those principles and methods to the facts of the case.
This three-part screening process keeps junk science out of the courtroom, ensuring justice is not thwarted by a scientific charlatan.
In contrast, New Jersey’s evidentiary rules allow for any testimony that “will assist the trier of fact to understand the evidence or to determine a fact in issue.” Under this much weaker standard, state court judges often allow testimony which might be barred as unreliable in federal court and in the majority of other state’s state courts. As a result, the New Jersey courts are an attractive forum for litigation based on “junk science.”
Our rules regarding the admissibility and review of expert testimony have remained unchanged since 1991. In this same period the Federal Rules of Evidence, the Uniform Rules of Evidence, numerous state evidence rules, and our own jurisprudence have all changed to reflect the increased importance and use of expert testimony.
At NJCJI’s request, the NJ Supreme Court asked its Committee on the Rules of Evidence to consider this issue. If you believe as we do that our state must amend its evidentiary rules if it hopes to keep junk science out of the courtroom and stem the tide of out-of-state plaintiffs flooding into the state, now is the time to speak up.
Comments on this issue can be directed to the chair and co-chair of the committee considering the evidentiary changes:
The Honorable Carmen Messano
Superior Court of NJ
583 Newark Ave.
Jersey City, NJ 07306-2395
The Honorable Jamie D. Happas, P.V.Cv.
Middlesex County Courthouse
56 Paterson Street
New Brunswick, 08903-0964
At a time when our state is working to create jobs and improve our economic outlook, it is imperative that our judicial system not add to the challenges our employers face by permitting unreliable opinion testimony that is soundly rejected in many competing states in the courtroom.
Additional information on expert opinion evidence in New Jersey is available on the NJCJI website. If you have questions or comments about the effort to modernize New Jersey’s rules of evidence, please contact Marcus Rayner or Alida Kass.
 “Rule 702. Testimony by Experts If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education may testify thereto in the form of an opinion or otherwise.” Available at http://www.judiciary.state.nj.us/mcs/rules/part7/part701.html.
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