Behrens: 2023 Amendments to the Federal Rules of Evidence
In December 2023, significant amendments to the Federal Rules of Evidence took effect. In an article for The Federalist Society, Shook Public Policy Practice Group Co-Chair Mark Behrens discussed the amendments and advised practitioners on how they should proceed with them in place.
In the article, titled “A Brief Guide to the 2023 Amendments to the Federal Rules of Evidence,” Behrens reviews amendments to Rules 702, 106 and 615, which address testimony by expert witnesses, the “rule of completeness,” and excluding witnesses from the courtroom and preventing those witnesses from accessing trial testimony. Of the three rules, Behrens said the changes to Rule 702 have received the most attention because they sought to correct “more than two decades of missteps by many federal courts.”
He said Rule 702 developed from the “Daubert trilogy,” a series of U.S. Supreme Court cases that articulated the standards for admitting scientific and other expert testimony in federal court. The rule was amended in 2000 to codify these cases, but despite the guidance, many federal courts incorrectly applied the rule, he said. The amendment provides that a party seeking admission of expert testimony must demonstrate to the court that it is more likely than not that the rule's three admissibility requirements are met.
“It is now clear that courts must perform a Rule 702 analysis before admitting an expert opinion over objection,” he said. “A court cannot simply invoke the language of the Rule and then admit a proposed expert’s testimony without finding by a preponderance of the evidence that the testimony meets all the Rule’s requirements.”
