New evidence rules?

Last year the Committee on Rules of Practice and Procedure Judicial Conference of the United States requested public comment on proposed changes to several rules of evidence. On page 299 of the request, you will find the proposed evidence rules. We are most interested in Rule 702, which deals with experts and expert testimony.

The Daubert case was an effort to make the trial judge the gatekeeper of expert testimony to make sure it was reliable and relevant. However, the military appellate courts adopted Daubert and added their factors to consider over time. From this, we, or your military defense lawyer, will make Houser motions from time to time. United States v. Houser, 36 M.J. 392 (C.A.A.F. 1993) sets out six factors a judge should use to determine the admissibility of expert testimony.

• Qualified Expert. Expert witness must qualify as an expert because of some special knowledge, skill, experience, training, or education. See e.g., United States v. Roach, __ F. 3d ___ (8^th Cir. 2011). Eighth Circuit noted Rule 702 does not rank academic training over demonstrated practical experience. An individual can qualify as an expert where he possesses sufficient knowledge gained from practical experience, even though he may lack academic qualifications in the particular field of expertise.
• Proper Subject Matter. Appropriate if it would be “helpful” to the trier of fact. It is essential if the trier of fact could not otherwise be expected to understand the issues and rationally resolve them. See Mil. R. Evid. 702.
• Crime Committed & Accused Committed. Condemning impermissible expert opinion, this Court stated that such testimony that opines that a crime has been committed and that a particular person did it “crosses the line of proper medical testimony.” United States v. Birdsall, 47 M.J. 404, 410 (CAAF 1998)(error to opine that sons were “victims of incest by their father”). United States v. Diaz, 59 M.J. 79 (C.A.A.F. 2003).
• Proper Basis. The expert’s opinion may be based on admissible evidence “perceived by or made known to the expert at or before the hearing” or inadmissible hearsay if it is “of a type reasonably relied upon by experts in the particular field in forming opinions or inferences upon the subject.” Expert’s opinion must have an adequate factual basis and not simply a bare opinion. See Mil. R. Evid. 702 and 703.
• Relevant. Must be relevant. See Mil. R. Evid. 402.
• Reliable. Methodology and conclusions must be reliable. See Mil. R. Evid. 702.
• Probative Value. See Mil. R. Evid. 403.

And, United States v. Griffin, 50 M.J. 278 (CAAF 1999), makes specific the application of the Daubert factors under a Houser analysis.

• Whether the theory or technique can be (and has been) tested;
• Whether the theory or technique has been subjected to peer review and publication;
• The known or potential error rate;
• The existence and maintenance of standards controlling the technique’s operation;
• The degree of acceptance within the relevant scientific community; and
• Whether the probative value of the evidence is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury. Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993).

As court-martial practitioners know, the Military Rules of Evidence (Mil. R. Evid.) are based on the federal rules. Some additions, such as those found in Section 3 and several federal rules, are not applicable.

Last year, the Advisory Committee on Evidence Rules unanimously approved a proposal to amend Rule 702. The comment period for the amendment to the federal evidence rule on expert testimony closed last month. All signs indicate that these necessary changes, which would establish the standard for admissibility of this testimony, will be approved by the Supreme Court soon take effect Dec. 1, 2023. See Elizabeth Bernard, ANALYSIS: Say Goodbye to ‘Daubert Motion,’ Hello to New Rule 702(1).

If the rule changes, and unless the President says differently, the new rule is automatically effective at courts-martial 18 months after adoption in federal courts–the middle of 2025. See Mil. R. Evid. 1102. Nothing in the rules prohibits the President from implementing the changes earlier.