About | HeinOnline Law Journal Library | HeinOnline Law Journal Library | HeinOnline

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: 



                   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).

What Is HeinOnline?

HeinOnline is a subscription-based resource containing thousands of academic and legal journals from inception; complete coverage of government documents such as U.S. Statutes at Large, U.S. Code, Federal Register, Code of Federal Regulations, U.S. Reports, and much more. Documents are image-based, fully searchable PDFs with the authority of print combined with the accessibility of a user-friendly and powerful database. For more information, request a quote or trial for your organization below.

Short-term subscription options include 24 hours, 48 hours, or 1 week to HeinOnline.

Contact us for annual subscription options:

Already a HeinOnline Subscriber?

profiles profiles most