In the last few months, five states have adopted amendments to their expert evidence admissibility rules to conform with an recently amended federal rule.
On December 1, 2023, changes to Federal Rule 702 took effect. A group called Lawyer for Civil Justice said the changes were meant to make clear that judges bear the gatekeeping responsibility for ensuring expert testimony is based on reliable facts and methods – and that the testimony is correctly applied to the case – before it is presented in a courtroom.
Other states also have started the amendment process or are expected to begin consideration of an amendment in the coming months.
While the amendment to FRE 702 was an essential step toward a fairer application of justice in both civil and criminal federal courts, the process of updating state rules of evidence is separate and unique to each state,” LCJ said in a press release. “Research performed by the Court Statistics Project found that 98.5% of all litigation in the U.S. is conducted in state courts, demonstrating the importance of modernizing state rules of evidence in accordance with the FRE 702 amendment.”
LCJ Executive Director Dan Steen elaborated on that.
“Reforming state rules governing expert evidence is critical to ensuring juries are presented with reliable and scientifically sound evidence,” Steen said. “LCJ recognizes Arizona, Kentucky, Louisiana, Michigan and Ohio for promptly enacting this reform, and commends the lawyers whose leadership made these efforts successful.
“LCJ continues to work with in-state advocates to support essential improvements to expert evidence admissibility rules across the country.”
Before the amendment to FRE 702 was adopted, LCJ says it found judges often failed to apply the correct expert evidence admissibility standards. Following adoption of Rule 702, the group says federal judges have dramatically increased their adherence to the standards in the amended rule to analyze expert evidence admissibility issues.
Legislation that brought Louisiana Code of Evidence Article 702 into alignment with the federal rule was unanimously adopted by the state Legislature and signed into law May 21 by Gov. Jeff Landry. It will take effect August 1.
In the four other states:
* The Arizona Supreme Court issued an order conforming Arizona’s state expert testimony standard with Rule 702. The order, issued before the federal rule was formally adopted, which went into effect on January 1.
* The Kentucky Supreme Court finalized an amendment to the Kentucky Rule of Evidence 702 on June 24, making it essentially identical to the FRE 702. The amendment took effect on July 1.
* The Michigan Supreme Court, following a comment period, adopted an amendment aligning state expert admission standards with FRE 702. The amendment became effective on May 1.
* Ohio’s Supreme Court adopted an amendment to Ohio Rule of Evidence 702, bringing it into conformity with FRE 702. Following a comment period and consideration by the legislature, the amended rule took effect on July 1.
LCJ said work has begun in other states as well.
* A proposal to amend Alabama Rule of Evidence 702 was submitted to the Supreme Court’s Evidentiary Rules Committee. Concurrently, legislation amending Alabama Rule of Evidence 702 was introduced in the state legislature near the end of the recent session.
* The Florida State Bar is considering recommendations to the legislature regarding changes to the Florida Code of Evidence. Briefing materials were submitted to the Bar seeking to include in that package of recommendations an amendment to the Florida Code on expert evidence admissibility.
The group said it will continue to work with its members and allies to expand the number of states considering rule amendments and will continue to support in-state advocates supporting rule changes.