In their work to amend the Federal Rules of Evidence, the Rules Advisory Committee[1] worked hard to resolve the controversy in the application of Rules 702 and 703.[2] We at PsychLaw.net feel it is important to note that when construing the Federal Rules, the Supreme Court has attached great weight to the accompanying Advisory Committee notes.[3] For example, Justice Antonin Scalia maintained that “the Notes are assuredly persuasive scholarly commentaries-ordinarily the most persuasive-concerning the meaning of the Rules.”[4] Professor Imwinkelried has commented that the courts have ascribed great weight to the Advisory Committee notes: “because they realize that the original notes accompanied the draft Federal Rules throughout the congressional deliberations over the draft.”[5] In this regard, it is important to understand the legislative process the recent amendments to Federal Rules of Evidence 702 and 703 went through.[6]
In 1998, the Advisory Committee proposed amending Rule 702 to bring the rule into conformity with the Daubert trilogy.[7] After the Standing Committee gave permission, the Advisory Committee solicited public comment between August 1998 and February 1999.[8] After revising one of the proposal’s three elements, the Advisory Committee forwarded Proposed Rule 702 to the Standing Committee in April 1999.[9] In June 1999, the Standing Committee approved and forwarded Proposed Rule 702 to the Conference. The Conference met again on September 15, 1999 and submitted the proposal to the Court on December 6, 1999.[10] The Court submitted Proposed Rule 702, together with other proposed rule changes, to Congress on April 17, 2000.[11] The several committees of the Judiciary in Congress made no amendments, and the Rules as amended became law, December 1st, 2000.
As they read today, FRE 702 & FRE 703 are:
FRE 702:
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.
FRE 703:
The facts or data in the particular case upon which an expert bases an opinion or inference may be those perceived by or made known to the expert at or before the hearing. If of a type reasonably relied upon by experts in the particular field in forming opinions or inferences upon the subject, the facts or data need not be admissible in evidence in order for the opinion or inference to be admitted. Facts or data that are otherwise inadmissible shall not be disclosed to the jury by the proponent of the opinion or inference unless the court determines that their probative value in assisting the jury to evaluate the expert’s opinion substantially outweighs their prejudicial effect.
It is the purpose of this blog to aid courts in gatekeeping with behavioral science evidence. We at PsychLaw.net hope to accomplish this first, by using the Rules and decisional law to construct a template for decision making with behavioral scientists and their proposed testimony. Second, this blog is designed to give the gatekeeper an immediate appreciation of the principles and methodology[12] of the behavioral sciences. Finally, we at PsychLaw.net have drawn upon the scientific research in the areas of the behavioral sciences most frequently found in our courts to present an objective description of the datum of the discipline[13]in each subject area.
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[1] In the recent amendments to Federal Rules of Evidence 702 & 703, the Rules Advisory Committee attempted to resolve this controversy:
“There has been some confusion over the relationship between Rules 702 and 703. The amendment makes clear that the sufficiency of the basis of an expert’s testimony is to be decided under Rule 702. Rule 702 sets forth the overarching requirement of reliability, and an analysis of the sufficiency of the expert’s basis cannot be divorced from the ultimate reliability of the expert’s opinion. In contrast, the “reasonable reliance” requirement of Rule 703 is a relatively narrow inquiry. When an expert relies on inadmissible information, Rule 703 requires the trial court to determine whether that information is of a type reasonably relied on by other experts in the field.”
2 In Daubert, Chief Justice Rehnquist and Mr. Justice Stevens described the briefs they were reading prior to decision which dealt “ …with definitions of scientific knowledge, scientific method, scientific validity, and peer review…” 113 S Ct 2786 at 2799. The two Justices offered that these concepts were clearly “useful or even necessary in deciding how Rule 703 should be applied…” Id. emphasis added. The Second Federal Circuit reasoned that Daubert principles interpreting FRE 702 apply equally to FRE 703. See: United States v. Locascio, 6 F.3d 924 at 938 (2d Cir. 1993), cert. denied., 511 U.S. 1070 (1994).
Following their decision in Daubert, the Supreme Court passed on a Third Circuit ruling in DeLuca v Merrell Dow Pharmaceuticals, Inc., 911 F 2d 941, (3rd Cir. 1990) aff’d without op. 6 F 3d 778 (3rd Cir. 1993) cert denied, 114 S Ct 691 (1994). In DeLuca the Third Circuit reasoned that: “Rule 703 is satisfied once there is a showing that an expert’s testimony is based on the type of data a reasonable expert in the field would use in rendering an opinion on the subject at issue.” 911 F 2d at 953 emphasis added.
In another Third Circuit case: In re Paoli R.R. Yard PCB Litig., 35 F.3d 717, 742 (3rd Cir. 1994), cert. denied. 513 U.S. 1090 (1995) – the Court refused to intervene in the Third Circuit’s notion that the trial court’s gatekeeping role with regard to experts includes independent evaluation of reasonableness or data relied on by experts under Fed. R. Evid. 703. Indeed, the Third Circuit reasoned that applying same standard under 702 and 703 avoids need of making metaphysical distinctions between problems with underlying data itself as opposed to problems with the methods used to analyze the data. Id. 35 F.3d 717, 748-749. In Raynor v. Merrell Pharmaceuticals, Inc., 104 F3d 1371, 1374 (D.C. Cir. 1997) the D.C. Circuit ruled that “Daubert creates no obvious bar to applying Rule 703 as we have done in the past.”
[3] See, e.g.: Scallen, (1995) Interpreting the Federal Rules of Evidence: The Use and Abuse of the Advisory Committee Notes, 28 Loyola Los Angeles Law Review 1283.
[4] See: Tome v. U.S., 119 S. Ct. 696, 706 (1995).
[5] Edward J. Imwinkelried “Rule 702’s Reach” 11/20/00 Nat’l L.J. A18, (Col. 1)
Professor Imwinkelried goes on to explain: “…the courts have correctly concluded that they should pay attention to the notes. The notes were not only carefully prepared by experts, but even more important, they were provided to the decision-makers well before the final decision to adopt the Federal Rules and the amendments.” Id.
[6] Procedurally: 28 U.S.C.§ 2071-2077 authorizes the Supreme Court to establish or amend rules for federal courts, including the rules of evidence. See 28 U.S.C. § 2072 (1994) “The Supreme Court shall have the power to prescribe . . . rules of evidence.”
Under the Court’s direction, the Conference “carr[ies] on a continuous study of the operation and effect of the general rules of practice and procedure” within the federal court system.
See 28 U.S.C. § 331 (1994). The Chief Justice of the Supreme Court, serves as the Conference’s Chairman and its other members include the chief judges of the twelve federal circuit courts of appeals, the Federal Circuit, the Court of International Trade and twelve district court judges representing each of the twelve circuits. see: Thomas E. Baker,(1991) An Introduction to Federal Court Rulemaking Procedure, 22 Texas Tech. Law Review 323, 328.
The Conference’s Committee on Rules of Practice and Procedure, often called the “Standing Committee”, coordinates this activity through sub-committees on specific areas of law. These sub-committees are referred to primarily as “advisory committees”, and concern themselves with Appellate Rules, Bankruptcy Civil Rules and the Rules of Evidence.
See 28 U.S.C. § 2073(b) (1994): “The Judicial Conference may authorize the appointment of committees to assist the Conference by recommending rules to be prescribed under section 2072 and 2075 of this title” The section which concerns rules of procedure and evidence is §2073(a)(2).
A proposed amendment must pass through seven steps before becoming a new federal rule. First, the relevant advisory committee, on its own initiative or in response to public suggestion, considers an amendment to the existing rules at one of its biennial meetings. Second, if an amendment is under consideration, the advisory committee submits its proposal to the Standing Committee. The Advisory Committee both considers and, if it agrees, seeks approval to publish a proposed amendment at either the same meeting or the next semi-annual meeting. If the Standing Committee allows the solicitation of comment on the proposed amendment, the advisory committee prints a notice in the Federal Register and accepts public comment for six months. The Federal Advisory Committee on Evidence Rules met on April 6 and 7, 1998, in New York City and approved three proposed amendments to the Federal Rules of Evidence. Third, after receiving public comment, the advisory committee considers whether the comments justify revising the proposed amendment. If no substantive changes are made, the advisory committee forwards its proposed amendment to the Standing Committee. Should the advisory committee make substantive changes following the public comments, the committee may repeat the public comment process. At the fourth step, the Standing Committee either approves the amendment and forwards it to the Conference or returns the proposal, occasionally with revisions, to the advisory committee. Fifth, when the Conference approves the proposal, the Conference sends the proposal to the Supreme Court. Sixth, if the Supreme Court supports the proposed amendment, it “prescribes” the amendment.
See 28 U.S.C. § 2072(a) (1994) Section 2074(a) of the Federal law requires that the Court submit its prescribed rule to Congress by May 1 of the year in which the Court intends the rule to become effective.
The final stage is left to Congress. If Congress does not act to amend, postpone or nullify the proposed rule, the rule as prescribed by the Court becomes effective December 1 of the year in which the Court submitted the proposed rule to Congress. See 28 U.S.C. § 2074(a).
[7] See Fed. R. Evid. 702 (proposed 1999) Advisory Committee’s note: “Rule 702 has been amended in response to Daubert . . . and to the many cases applying Daubert . . .” (citations omitted).
[8] See Notice of Public Hearings, 63 Fed. Reg. 41,865 (Aug. 5, 1998).
[9] Compare the text of Fed. R. Evid. 702 (proposed 1998): “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, provided that (1) the testimony is sufficiently based upon reliable 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.” emphasis added – against the text of Fed. R. Evid. 702 (proposed 1999): “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.”
[10] H.R. Doc. No. 106-225, reprinted in 2000 U.S.C.C.A.N. G195- 199.
[11] See H.R. Doc. No. 106-225, at 4-24, reprinted in 2000 U.S.C.C.A.N. G197. (containing text of Proposed Rule 702 as submitted by the Court).
[12] Daubert 509 U S 579, 113 S Ct at 2797. Emphasizing that the “focus….must be solely on principles and methodology” 509 U S 579, 113 S Ct at 2797.
[13] Daubert 509 U S 579, 113 S Ct at 2796. Experts must know and base their opinions “reliably on the datum of their discipline.” 509 U S 579, 113 S Ct at 2796.
