By Duncan Brown1 

On December 1st, 2000, Congress modified the language of Federal Rule of Evidence 702, the rule that governs the standard for allowing expert testimony. The new rule reads identical to the old rule except for an added clause at the end:

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, if (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 to the facts of the case.2

This additional language, noted above in bold, has two important implications. First, it codifies the position that FRE 702 applies to all expert testimony, not just testimony from the "hard" sciences.3 Second, the new language defines the role of the court as gatekeeper based on criteria of reliable methodology. Although there are currently only three civil cases4 that discuss the application of the new language, the changes have the potential import of making it easier for prosecutors to keep out expert testimony about "junk" science or theories based on suspect methods.

The new language expands 702 analysis to all experts

The first implication of the change in language in 702 is that is now formally includes all experts from all disciplines. While Kumho Tire5 adopted this standard in 1999, the Federal Rules now formally recognize that 702's reach extends into the realm of all hard and soft sciences.6 The Notes to the new rule specifically extend the rule to all experts in order to ensure that "an expert who is not a scientist ... receive[s] the same degree of scrutiny for reliability as an opinion from an expert who purports to be a scientist."7

What this means for prosecutors

Essentially this part of the new 702 will become a useful arrow in the quiver of prosecutors because it requires any defense expert who proposes to testify about issues such as memory and suggestibility, eyewitness testimony, or police coercion to be subjected to the same scrutiny as medical experts such as radiologists, pathologists and pediatricians. With the new language, motions to exclude or limit testimony become all the more important since the court must hold soft science experts to the same standard as hard science experts.

Prosecutors should be encouraged to file pre-trial motions challenging the use of defense experts because the new 702 maintains that the proponent of the expert has the burden of proof by the preponderance of the evidence that the expert is properly qualified to testify.8 Thus, not only can any expert be challenged on grounds of reliability; the proponent must affirmatively prove the reliability of the information offered before being allowed to testify. Therefore, the new language exposes the entire universe of experts to the same degree of scrutiny that was once reserved only for scientific experts. The second implication of the new language is that 702 now codifies and clearly defines the degree of scrutiny paid to all experts by the court in its role as gatekeeper.

The new 702 defines the standards for reliability required for expert testimony

The new language concretely defines the court's role as gatekeeper, focusing on the methodology of the expert's basis for testimony, not on the content of the testimony itself.9 Conceptually, the only difficult art of the new language is understanding exactly what courts must examine when determining whether an expert's methodology is reliable. Fortunately, that analysis is not fundamentally different from traditional Daubert analysis. Therefore, relying on the newly created three-part test for judging the reliability of the expert's testimony, courts are explicitly given the direction for determining what information is a result of reliable methods of research, and what information results from unreliable methods of study and is therefore inadmissible.

What this means for prosecutors

The three criteria set forth in the new 702 have been crafted specifically to address the need for permitting testimony obtained through reliable methology.10 The courts must determine if:

(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 to the facts of the case.11

Courts interpreting this new explicit duty have recognized that "experts need not possess a special key or invoke a magic incantation before the gates of the courtroom are opened to them."12 However, the party proposing the testimony must offer some showing of the reliability of the testimony through books, experience, other witnesses, specific evidence of the practice in the field, or other demonstrable proof.13  Thus, a party offering an expert must show through some sort of evidence from the expert's general field that the methods he or she relied upon are used by others in that field. to aid courts in this decision, the new 702 continues the use of the non-exclusive checklist originally set forth in Daubert.14 As with the former 702, the new 702 merely offer the factors in this checklist as possible points for the court to examine.15

While the new language emphasizes the importance of methodology, it is also aware that to an extent, the conclusions offered by the expert must be considered when determining reliability.16 Although the reviewing court must not determine whether the conclusion itself is reliable, it must examine whether the conclusion was the result of a proper or usual application of a reliable method. The distinction between the court permissibly ruling that a method is reliable versus an improper court ruling on the reliability of the conclusion itself is best described in the second prong of the new three-prong test.

Rule 702 requires that the testimony is the product (emphasis added) of reliable principles and methods. thus, when conclusions are examined it is always in the context of what process was used to reach them. The ruling does not serve to endorse or reject a particular result, only approve or disapprove of the method applied to form those conclusions. The Notes of Advisory Committee on Rules have summed up the scope of the court's examination of stating that:

[t]he trial judge in all cases of proffered expert testimony must find that it is properly grounded, well-reasoned, and not speculative before it can be admitted. The expert's testimony must be grounded in an accepted body of learning or experience in the expert's field, and the expert must explain how the conclusion is so grounded.17

Therefore, by requiring the court to look at the methodology used by the expert, and not the content of the conclusion offered by the expert, it strives to "limit the use, but increase the utility and reliability, of party-initiated opinion testimony bearing on scientific and technical issues."18

What the changes do not mean for prosecutors

The change in 702 has two additional important implications. First, the new language does not crate a tacit or implied acceptance or rejection of an expert's testimony. The new test for reliability in 702 does not serve as a way for a judge to endorse or condemn a party's expert, it merely serves as a way to perform a gatekeeping function to ensure that all testifying experts used reliable methods when reaching their conclusions. The rule does not function as a way to bypass a battle of experts. A court can properly and reasonably approve experts with competing or contradictory conclusions.19 Therefore, a court's ruling on an expert's testimony is based on the reliability of the methodology used, not on the content of the testimony.

Second, the multiple factors mentioned in Daubert,20 and expanded upon by many courts21 when determining the reliability of methodology remain the same. Thus, there is no new conceptual or empirical way to determine the reliability of methodology. The new 702 language merely reinforces that the judge must use all of the Daubert factors to examine the methodology used by the expert.22 Additionally, the expert need not show that his or her methods are the most widely accepted or used, only that they are reliable as determined by the standards of the field. Therefore, any argument that 702 changes the way reliability is determined is improper; 702 explicitly states that the court's focus during an admissibility hearing for an expert must be on the reliability of the methodology that the expert used to reach their conclusions, not on the conclusions themselves.

Conclusion

The newly amended 702 provides prosecutors definite standards to challenge defense experts. The new Rule 702 is inclusive of all types of experts, still includes the Daubert criteria for reliability, and most importantly, focuses the court's examination on the methodologies relied upon by the expert. This refocusing is important because defense experts in child abuse cases often rely on faulty methods of examination that can easily be challenged on grounds that they tend to produce unreliable or extraordinary testimony. Prosecutors should aggressively use the new 702 language to their benefit through motions to exclude experts, limit testimony or allow for voire dire of the expert.

Prosecutors should also consider the new Rule 702 a valuable tool when using experts for their own cases. Because the new language explicitly sets the same standard of scrutiny for all experts, prosecutors should aggressively use testimony from soft science experts in their cases. Experts on interviewing techniques, memory and suggestibility or other psychological topics should be seriously considered because now there is a demonstrable, definite standard against which to demonstrate to the courts that their testimony is reliable and beneficial. For more information on 702, or strategies on how to best capitalize on the changes in the law, please contact the Center.

1 Staff Attorney, APRI's National Center for Prosecution of Child Abuse.
2 Federal Rule of Evidence 702, (2000)
3 The inclusion of all experts was first accepted in Kumho Tire Company Ltd. v. Carmichael, 526 US 137, 158 (1999). The Notes of Advisory Committee on Rules reflects this expansion by stating that "within the scope of the rule are not only experts in the strictest sense of the word, e.g., physicians, physicists, and architects, but also the large group sometimes called "skilled" witnesses.
4 Spearman Industries, Inc. v. St. Paul Fire and Marine Insurance, 2001 U.S. Dist LEXIS 687 (N.D. I1, January 23, 2001); Rudd v. General Motors Corporation, 2001 U.S. Dist. LEXIS 702 (E.D. Ala. January 19, 2001); Pappas v. Sony Electronics, Inc. 2000 U.S. dist. LEXIS 19531 (W.D. Pa., December 27, 2000).
5 Kumho Tire v. Carmichael, 526 US at 158
6 Hard sciences are traditionally considered disciplines such as biology, physics, chemistry, etc. Soft sciences are fields such as psychology, psychiatry, economics, anthropology or sociology.
7 See Notes of Advisory Committee on Rules; see also Watkins v. Telsmith, Inc., 121 F.3d 984, 991 (5th Cir., 1997).
8 See Rudd v. General Motors Corporation, 2001 U.S. Dist. LEXIS at 711.
9 See Spearman Industries, Inc. v. St. Paul Fire and Marine Insurance, 2001 U.S. Dist. LEXIS 687, 691 (N.D. I11. 2001); see also Smith v. Ford Motor Company, 215 F.3d 713, 718 (7th Cir., 2000).
10 "The amendment requires that expert testimony be based on sufficient underlying 'facts or data.'" Notes of Advisory Committee on Rules.
11 Federal Rule of Evidence 702.
12 Pappas v. Sony Electronics, 2000 U.S. Dist. LEXIS 19531, 19556 (W.D. Penn. 2000).
13 Id.
14 Some of the factors a court can consider are: whether the theory can be, or has been tested; whether the theory has been subjected to peer review; whether the rate of error is known at the time of testing; whether there are standards used by others in the field; and whether the theory enjoys general acceptance in the field. Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 US 579, 593 (1993).
15 Notes of Advisory Committee on Rules.
16 The Notes recognize that "conclusions and methodology are not entirely distinct from one another."  General Electric v. Joiner, 522 US 136, 146 (1997).
17 Notes of Advisory Committee on Rules.
18 Id.
19 The Notes are explicit that a court's ruling on whether an expert satisfies the requirements of 702 does not dispositively mean that the court embraces or rejects a party's argument, rather it is meant to ensure that all testimony allowed is reliable. Notes of Advisory committee on Rules.
20 See Id.
21 For example, see Daubert v. Merrill Dow Pharmaceuticals, Inc., 43 F.3d 1311, 1317 (9th Cir., 1995); General Electric v. Joiner, 522 US 136, 146 (1997); Claar v. Burlington N.R.R., 29 F.3d 499 (9th Cir. 1994); Ambrosini v. Labarraque, 101 F.3d 129 (D.C. Cir. 1996); and Sheehan v. Daily Racing Form, Inc. 104 F.3d 940. 942 (7th Cir. 1997).
22 The Notes state that "all of these factors remain relevant to the determination of the reliability of expert testimony under the Rule as amended."