Judicial Conference Approves Changes to Federal Rules of Evidence

The Judicial Conference of the United States met on September 15 and, among other things, approved changes to Federal Rules of Evidence 701, 702, 703 - all affecting expert testimony in federal courts.

The Rule 701 change will narrow the scope of a lay witness's opinion evidence, to assure that such an opinion cannot be based upon any scientific, technical or other specialized knowledge. This change is Daubert/Kumho inspired, eliminating the possibility that the reliability standard for admissibility required by those decisions is not circumvented by allowing lay testimony to be put into evidence as a substitute for expert testimony.

A more direct acknowledgment of the Daubert/Kumho requirement is expressed in the change the Conference accepted to Rule 702. That change would add three conditions for admissibility to the existing qualifications and assist-the-trier-of-fact requirements: "1) the testimony is based upon sufficient facts or data, 2) the testimony is the product of reliable principles and methods, and 3) the witness has applied the principles and methods reliably tot he facts of the case.

Rule 703 would be amended to add language stating explicitly that facts or data relied upon by an expert witness are not rendered automatically admissible - simply because they happen to be relied upon by the expert. This change will preserve the spirit of the rule that permits a District Court to admit expert testimony only when its probative value on a particular point outweighs any prejudicial effect regarding a larger question. Should Congress fail to act on the changes, they will become effective by Dec. 1, 2000. " [LRP Publications, Vol. 7, Iss. 11, 11/99:8]