Second, the Court declared trial courts the gatekeepers of reliability. To that end, under Federal Rule of Evidence 104(a), a trial court must determine “whether the expert is proposing to testify to (1) scientific knowledge that (2) will assist the trier of fact to understand or determine a fact in issue.” Specifically, the trial court must make a “preliminary assessment” of whether the testimony’s underlying reasoning or methodology is scientifically valid and whether that reasoning or methodology properly can be applied to the facts in issue.

These impacts will be most significant in circuits where courts have diverged from the standard that the factual basis of an expert opinion is initially a matter of admissibility rather than the weight and credibility of the evidence. In practice, this means that, instead of allowing close questions of foundation and reliability to be heard by the jury, courts must vigilantly serve their proper role as gatekeeper of the evidence pursuant to FRE 104.If approved, the amended FRE 702 will take effect on December 1, 2023.I. Overview of FRE 702 and the Forthcoming AmendmentAccording to the seminal cases regarding admissibility of expert testimony, including Daubert v. Merrell Dow Pharmaceuticals Inc., 509 U.S. 579 (1993), and Kumho Tire Co. v. Carmichael, 526 U.S. 137 (1999), a federal judge must act as a “gatekeeper” to exclude any unreliable expert testimony, as required by FRE 104(a). Under FRE 104(a), the proponent of the testimony must show admissibility by a preponderance of the evidence, the sufficiency of which must be determined by the court.The last amendment to FRE 702, made in 2000, revised the Rule to conform with the admissibility standard from the Daubert and Kumho line of cases and also imposed additional requirements.

The Supreme Court resolved the split in Bourjaily v. U.S., 483 U.S. 171 (1987), holding that courts can consider the statements themselves in ruling on admissibility.The Bourjaily holding was based on Federal Rule of Evidence 104 (a), which allows judges to consider hearsay and other inadmissible evidence in ruling on questions of admissibility.The division here concluded that Butler nonetheless controls: “The Federal Rules of Evidence do not govern proceedings in the local courts of the District of Columbia (except to the extent that [the DCCA], on a case-by-case basis, has chosen or chooses in the future to adopt a specific Rule as local law)” and the DCCA has not formally adopted Rule 104 (a) (although it generally follows the rule).Thus, Butler can only be overruled if the DCCA considers the issue en banc and adopts the Supreme Court’s Bourjaily reasoning.Issue 2: Can the trial court consider hearsay statements for their truth in determining the admissibility of other out-of-court, un-confronted testimonial statements under a “forfeiture by wrongdoing” theory?

estimony must stay within the bounds of what can be concluded from a reliable application of the expert’s basis and methodology. Id. at 891–96.These changes emphasize the importance of the expert's methodology and its direct relevance to the specific case being tried. Under 702(d), a proponent of expert testimony must exhibit that the testimony is not only based on reliable principles and methods but, also, that the expert reliably applied those principles and methods to the facts of the case at hand. This means that courts will now be expected to scrutinize an expert's qualifications, as well as the process through which that expert arrived at their conclusions. Additionally, the added language seeks to accentuate the requirement that a proponent of expert testimony has the burden of satisfying, under a preponderance standard, the reliability requirement contained in the rule. It should be stressed however that the amendment does not impose any new procedures, but only clarifies that F.R.E. 104(a) is applicable under Rule 702. Such clarification was necessitated by courts incorrectly holding that the sufficiency of an expert’s basis, and the application of the expert’s methodology, are questions of weight rather than admissibility. In that vein, the Committee emphasized that “judicial gatekeeping is essential” because jurors may lack the ability to (a) evaluate the reliability of an experts’ opinions and (b) determine whether the conclusions go beyond what the basis and methodology may reliably support.While this amendment may appear minor, it represents a commendable effort to create uniformity among the federal courts in regard to the admissibility of expert testimony. Moreover, it seeks to build on the Daubert analysis and further enhance the reliability of expert testimony. While the amendment will not substantively change Rule 702, it should nonetheless cause notable change in the way some federal courts analyze admissibility. Attorneys should begin to incorporate the new

vil cases.” It also cautions against experts making assertions of absolute (100%) certainty (or even assertions to a reasonable degree of certainty) if the expert’s methodology is “subjective and thus potentially subject to error.” Litigants and their experts should be cognizant of this commentary, as it is possible courts may rely on it when interpreting the amended FRE 702.One final aspect of the amendment to note is that while the amended FRE 702 takes effect on December 1, 2023 and applies in all cases filed after that date, the amended rule also applies to all pending cases “insofar as just and practicable.” As a result, litigants with pending federal cases supported by expert testimony—even cases in which expert reports have already been served—should ensure that their experts’ opinions are likely to be admissible under the amended rule, in anticipation of judges applying the amended rule to pending cases. It is also possible that there will now be an increase in hearings (under FRE 104(a)) ordered by courts, in an effort to ensure they are satisfying their “judicial gatekeeping” function and are appropriately deciding whether an expert’s opinion satisfies the amended FRE 702.[View source.]

In making its determination it is not bound by the rules of evidence except those with respect to privileges.” Fed.R.Evid. 104(a). Nevertheless, the Court has the discretion to decline to give weight to evidence that lacks sufficient substance or foundation.

Butler adopted Federal Rule of Evidence 801(d)(2)(e) (the coconspirator statements exception).At the time the DCCA issued its opinion in Butler ruling that the content of the statements could not be considered in determining admissibility, there was a split on the issue among federal circuits.The Supreme Court resolved the split in Bourjaily v. U.S., 483 U.S. 171 (1987), holding that courts can consider the statements themselves in ruling on admissibility.The Bourjaily holding was based on Federal Rule of Evidence 104 (a), which allows judges to consider hearsay and other inadmissible evidence in ruling on questions of admissibility.The division here concluded that Butler nonetheless controls: “The Federal Rules of Evidence do not govern proceedings in the local courts of the District of Columbia (except to the extent that [the DCCA], on a case-by-case basis, has chosen or chooses in the future to adopt a specific Rule as local law)” and the DCCA has not formally adopted Rule 104 (a) (although it generally follows the rule).Thus, Butler can only be overruled if the DCCA considers the issue en banc and adopts the Supreme Court’s Bourjaily reasoning.Issue 2: Can the trial court consider hearsay statements for their truth in determining the admissibility of other out-of-court, un-confronted testimonial statements under a “forfeiture by wrongdoing” theory?Facts: The witness-decedent’s un-confronted statements (grand jury testimony and other statements) were admitted for their truth against both defendants.

" On the other hand, if he was "consulted" or "otherwise included" in the decision, that may be enough to tilt toward admissibility. Alternatively, because "Rolison was the head of Mando's human resources department, which may suggest "he [was] authorized to speak with subordinates about [] [Mando's] employment practices . . . ."The panel majority concludes on the promotion claim that the district court judge must decide the admissibility of the statement (as it is the bench's, not the jury's, role under Federal Rule of Evidence 104(a) to make findings pertaining to admissibility):"If the district court determines that Rolison's statement is admissible, then there is sufficient evidence to raise a factual dispute about the legitimacy of Mando's proffered reason for hiring Seo. But if, on the other hand, the district court determines that Rolison's statement is not admissible, then there is no factual dispute and summary judgment is appropriate.

Noting split within circuit, court suggests that age-slurs themselves might be direct evidence, even if not specifically related in time to termination decision. Comment about needing to set up younger sales force admissible under FRE104(a) as evidence that manager who made statement had authority to hire and fire employees. Not direct evidence, though, because comment was not specifically about or targeted at plaintiff.

Noting split within circuit, court suggests that age-slurs themselves might be direct evidence, even if not specifically related in time to termination decision. Comment about needing to set up younger sales force admissible under FRE104(a) as evidence that manager who made statement had authority to hire and fire employees. Not direct evidence, though, because comment was not specifically about or targeted at plaintiff.