Supplementary material to Rule 702 reliability discussion at pages 231-249
In 2021, the Advisory Committee proposed minor modifications to Rule 702 that, among other things, make explicit that the prerequisites in the rule must be established by a preponderance of the evidence. The seemingly superfluous textual changes provide a hook for a new Advisory Committee Note, which includes some notable language regarding the screening of forensic expert testimony. Specifically, the proposed Advisory Committee Note states:
“The amendment is especially pertinent to the testimony of forensic experts…. Forensic experts should avoid assertions of absolute or one hundred percent certainty—or to a reasonable degree of scientific certainty—if the methodology is subjective and thus potentially subject to error. In deciding whether to admit forensic expert testimony, the judge should (where possible) receive an estimate of the known or potential rate of error of the methodology employed, based (where appropriate) on studies that reflect how often the method produces accurate results. Expert opinion testimony regarding the weight of feature comparison evidence (i.e., evidence that a set of features corresponds between two examined items) must be limited to those inferences that can reasonably be drawn from a reliable application of the principles and methods….”
The proposed amendment and committee note can be found at this link. The changes are noted in the image below in red. The amendment took effect on December 1, 2023.
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