This week, NJCJI filed its comment with the Judiciary Conference Advisory Committee in support of the proposed amendment to Federal Rule of Evidence 702 (“Proposed Amendment”). The Proposed Amendment will clarify that the proponent of expert testimony is required to demonstrate its admissibility by a preponderance of the evidence. This clarification will assist federal courts in carrying out their gatekeeping function and prevent unreliable junk science from being admitted as expert testimony.
NJCJI supports the Proposed Amendment, because many federal courts continue to misconstrue Rule 702. Despite the 2000 amendments to Rule 702, many federal courts still use outdated standards, apply a non-existent presumption of admissibility of proposed expert testimony, pass on the issue of admissibility by characterizing it as an issue of weight for the jury, and even hold that the reliability of an expert’s methodology is not subject to the gatekeeping function. These incorrect admissibility decisions result in the admission of untested, unreliable pseudoscientific notions before a jury who will rely on them as fact.
In addition to supporting the Proposed Amendment, NJCJI offered additional suggestions to ensure that the Proposed Amendment will remedy the federal courts’ misunderstanding of Rule 702:
- Adding language explicitly stating that the court decides admissibility – not the jury;
- Expanding the Committee Note to address a handful of outdated cases repeatedly, and incorrectly, cited as authority; and
- Emphasizing that Rule 702 does not favor a particular outcome.
NJCJI joins many other voices from the business community in supporting the Proposed Amendments and will update its membership when the Committee has completed its work on the issue.