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56 Creighton L. Rev. 97 (2022-2023)
Comment on the Proposed Revision of Federal Rule of Evidence 702: "Clarifying" the Court's Gatekeeping Responsibility over Expert Testimony

handle is hein.journals/creigh56 and id is 103 raw text is: 97 COMMENT ON THE PROPOSED REVISION OF FEDERAL RULE OF EVIDENCE 702: CLARIFYING THE COURT'S GATEKEEPING RESPONSIBILITY OVER EXPERT TESTIMONY RICHARD COLLIN MANGRUMt Expert testimony has always presented the courts with an analyt- ical dilemma. On the one hand, jurors may benefit from the insight of experts in understanding complex issues. On the other hand, jurors have limited capacity to evaluate whether expert testimony is relia- ble even aided by the crucibles of cross-examination, rebuttal expert testimony, and closing arguments. One procedural way to handle ex- pert overstatements is for the court to have a strong gatekeeping responsibility for excluding from the jury unreliable expert opinions. Crafting an evidentiary rule that will effectively exclude unreliable expert opinions without depriving the jury of reliable opinions has proven challenging. The Federal Rules Advisory Committee recently proposed a revision to Federal Rule of Evidence 702 (Rule 702). Re- vised Rule 702 clarifies, not changes, the gatekeeping responsibility of the judge over unreliable expert opinions. A brief review of the history of the court's gatekeeping responsi- bility over unreliable expert testimony may clarify the issue and ex- plain the rationale for the Advisory Committee proposing amendments to clarify the court's gatekeeping responsibility under Rule 702. The United States Court of Appeals for the District of Columbia, in Frye v. United States,' offered a generally accepted gatekeeping standard for courts serving as gatekeepers over expert opinions rest- ing upon untested scientific principles: Just when a scientific principle or discovery crosses the line between the experimental and demonstrable stages is diffi- cult to define. Somewhere in this twilight zone the evidential force of the principle must be recognized, and while courts will go a long way in admitting expert testimony deduced from a well-recognized scientific principle or discovery, the thing from which the deduction is made must be sufficiently f Yossem Professor of Law, Creighton University School of Law; B.A. 1872, Harvard University; J.D. 1975, University of Utah School of Law; B.C.L., 1978, Oxford University; S.J.D., 1983, Harvard University School of Law. 1. 293 F. 1013 (D.C. Cir. 1923).