The admissibility of expert testimony in federal courts is governed by Federal Rule of Evidence 702. The rule outlines what qualifies an individual as a subject matter expert—knowledge, skill, experience, training, or education—and what type of expert testimony is permissible at trial, which is relevant testimony based on sound science with sufficient supporting data.
In December 2023, an amendment to the rule clarified that the burden to demonstrate the requisite expertise is on the party delivering the testimony and reinforced the intent that the judge be a true gatekeeper. The amendment also emphasizes that the expert’s opinion should logically follow from the research methodology used to inform the testimony. The amendment intends to help judges better root out testimonial conclusions that cannot be reasonably deduced from the research methodology.
Rule 702 and the recent revisions are designed to ensure that expert testimony is only permitted when experts’ opinions reasonably stem from sound research methodology. But because judges are the gatekeepers of expert testimony, the amended Rule 702 raises empirically relevant questions: What do we know about how judges make expert admissibility decisions? And will the changes help judges become better gatekeepers?
The scant research on how judges evaluate expert testimony suggests that many judges have a poor understanding of psychology and can have difficulty ascertaining whether an expert witness is sufficiently qualified. Research also shows that many judges have difficulty distinguishing between strong and weak research methodology.
Regarding judges’ expert qualification decisions, it is a relatively low legal threshold whereby an individual can be deemed an “expert” if they have a solid foundation for knowledge that can assist the trier of fact. Nevertheless, judges may struggle with these qualification decisions.
Shari Schwartz’s dissertation investigated judges’ expert qualification decisions by providing judges, attorneys, and undergraduate students with the curriculum vitae of several hypothetical experts that varied in areas of expertise (clinical versus experimental legal), prior experience providing expert testimony (yes versus no), and number of publications (30 versus 0). Results indicated that judges’ decisions about experts’ qualifications were generally no different than those of undergraduate students. In fact, legal professionals’ expert qualification decisions were impacted by whether the expert had testified before, something that isn’t necessarily relevant to the expert’s actual qualifications.
More directly relevant to judges’ gatekeeping abilities is research by Margaret Kovera, PhD, and Bradley McAuliff, PhD, who examined judges’ admissibility decisions by varying the quality of the research that formed the basis of their expert testimony (Journal of Applied Psychology, Vol. 85, No. 4, 2000). Their research found that judges’ admissibility decisions were generally not sensitive to whether the research had been peer-reviewed or whether it was more or less internally valid—that is, methodologically strong (e.g., the research design included a control group).
This research suggests that any difficulty or misapplication of Rule 702 may not lie in the rule itself, but rather in judges’ lack of scientific training. Providing judges with more training on psychology and research methods could improve their understanding and ability to scrutinize experts’ opinions and the bases for those opinions, which may therefore benefit judicial decision-making more than simply amending Rule 702. Recruiting independent psychologists to help judges evaluate experts and their prospective testimony is another possible strategy (see Federal Rule of Evidence 706 and Justice Breyer’s concurrence in General Electric v. Joiner, 1997). Judges will likely—and understandably—continue to struggle with their gatekeeping role until they are better equipped with knowledge about research methodology and psychologists’ expertise.
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