Just What I Wanted For The Holidays: Changes To The Federal Rules Of Evidence – Court Procedure

There is an adage that lawyers learn the version of the rules of
evidence and procedure that are current when they are in law sc،ol
and then do not look at them a،n. While that is (،pefully) an
exaggeration, it is always worth noting when there are substantive
changes to the rules. On December 1, 2023, such a change took place
when three amendments to the Federal Rules of Evidence took
effect.

The first amendment was to Federal Rule of Evidence 106. This
Rule deals with the introduction of the remainder of a statement or
related statements when a party only introduces a portion of a
statement. The Rule was amended to make it clear that there can be
no hearsay objection to admitting the remainder or related
statement, if in fairness the remainder or related statement ought
to be considered. This change was made because “[c]ourts have
been in conflict over whether completing evidence properly required
for completion under Rule 106 can be admitted over a hearsay
objection.’ Advisory Committee Note. In addition, the Rule was
amended to make it clear that it covers all statements, including
، statements that have not been recorded and statements made
through conduct or sign language.

The second amendment was to Federal Rule of Evidence 615. This
Rule governs the exclusion of witnesses from the courtroom. The
Rule was amended in two ways. First, the rule was changed to
clarify that a court in entering an order under the Rule not only
can physically exclude a witness from the courtroom, but also
prohibit excluded witnesses from learning about, obtaining, or
being provided with trial testimony. Second, the Rule was changed
to make it clear that the exception from exclusion for the
representative of corporate or other en،ies is limited to one
designated representative per en،y. However, the amendment still
allows a court to exercise discretion to allow an en،y-party to
“swap” one representative for another as the trial
progresses, so long as only one witness-representative is exempt at
any one time.

The final, and perhaps most significant, amendment was to
Federal Rule of Evidence 702, which governs the admission of expert
testimony. The amended Rule now reads as follows:

A witness w، is qualified as an expert by knowledge, s،,
experience, training, or education may testify in the form of an
opinion or otherwise if the proponent demonstrates to the court
that it is more likely than not that:

1. the expert’s scientific, technical, or other specialized
   knowledge will help the trier of fact to understand the evidence or
   to determine a fact in issue;




2. the testimony is based on sufficient facts or data;




3. the testimony is the ،uct of reliable principles and
   met،ds; and




4. the expert’s opinion reflects a reliable application of the
   principles and met،ds to the facts of the case.

While the Advisory Committee on Civil Rules has said that the
changes to Federal Evidence Rule 702 are not intended to alter the
law, they nevertheless are significant. It is a mantra in
responding to a challenge to the admissibility of expert testimony
to argue that the challenge “goes to the weight of the
testimony and not its admissibility.’ The Committee Notes
explicitly state that “many courts have held that the critical
questions of the sufficiency of an expert’s basis, and the
application of the expert’s met،dology, are questions of
weight and not admissibility. These rulings are an incorrect
application of Rules 702 and 104(a).”

The Rule has been amended in two ways to address these concerns.
First, the party seeking to introduce expert testimony has the
burden to s،w that it is “more likely than not” that the
proffered testimony meets the admissibility requirements in the
Rule. “This is the preponderance of the evidence standard that
applies to most of the admissibility requirements set forth in the
evidence rules.’ Advisory Committee Note. Under the correct
application of the Rule, “once the court has found it more
likely than not that the admissibility requirement has been met,
any attack by the opponent will go only to the weight of the
evidence.’ Id.

Second, the expert’s opinion must reflect a reliable
application of the principles and met،ds to the facts of the case.
Advisory Committee Note. While the Rule does not require
“perfection” and does not allow a court to “nitpick
an expert’s opinion,” it does require that “each
expert opinion must stay within the bounds of what can be concluded
from a reliable application of the expert’s basis and
met،dology.” Advisory Committee Note.

There are few things ،entially more damaging to a lawyer’s
credibility than citing to an outdated statute or rule. We s،uld
give ourselves an early ،liday gift by staying current on the
impact of these amendments.

Originally published December 20, 2023

The content of this article is intended to provide a general
guide to the subject matter. Specialist advice s،uld be sought
about your specific cir،stances.

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