Amending Mil. R. Evid. 702

The military rules of evidence are based on the federal rules with some modifications and additions. Any rule change comes into force 18 months after it is effective in district court unless the President says otherwise. See Military Rule of Evidence 1102 (Mil. R. Evid.). 
 
Mil. R. Evid. 702 deals with testimony from experts. The concept is to ensure that expert testimony is reliable and relevant to the proceedings. The federal rule was meant to substitute for the Frye test that had been followed since about 1923. In 1993, the Supreme Court turned to interpretation of the rule in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993). The court agreed that Frye was no longer the standard for the admissibility of expert testimony. The court then listed some factors for the trial judge to consider. This began the “Daubert Test” motion practice. In 2000 federal rule 702 was updated to account for the Daubert “factors.” Daubert was also meant to remind judges that they are gatekeepers to prevent “junk” science entering the courtroom. 
 
The military appellate courts have themselves adopted Daubert and provided additional factors in United States v. Houser, 36 M.J. 392 (C.A.A.F. 1993) and United States v. Griffin, 50 M.J. 278 (CAAF 1999). The parties must address, and the military judge consider at least, 
 

• Is the expert qualified through special knowledge, training, or education? A college degree is not required and someone with practical experience can testify if they have sufficient knowledge—remember the scene from My Cousin Vinnie? In United States v. Roach, 644 F. 3d 763 (8th Cir. 2011), the court notes not ranking academic training over demonstrated practical experience. The court cited to United States v. Anderson, 446 F.3d 870, 875 (8th Cir. 2006); Fox v. Dannenberg, 906 F.2d 1253, 1256 (8th Cir. 1990).   
• Is the testimony a proper subject to discuss because it will help the factfinder understand a fact in issue because it is about something is not expected to understand? See Mil. R. Evid. 702. 
• Does the testimony invade the province of the factfinder? For example, there cannot be an opinion that a crime has been committed and that a particular person did it. United States v. Birdsall, 47 M.J. 404, 410 (CAAF 1998) (error to opine those sons were “victims of incest by their father”). 
• Is the expert’s opinion based on admissible evidence or inadmissible hearsay if reasonably relied upon by experts in the particular field when they form opinions? More than a bare opinion is needed from an expert and there must be a suitable set of facts underlying the opinion. See Mil. R. Evid. 702 and 703. 
• Is the testimony relevant? See Mil. R. Evid. 402. 
• Is the science or methodology and conclusions (1) reliable, (2) accepted in the science community, (3) been sufficiently tested, (4) peer reviewed and publication, (5) have a high error rate, (6) are there standard practices and controls that are followed, and (7) does the scientific community accept the science? Daubert. 

 
The Committee on Rules of Practice and Procedure Judicial Conference of the United States asked for public comment on proposed changes to several rules of evidence. (See page 299 of the request.) 
 
Court-martial practitioners know that the Military Rules of Evidence (Mil. R. Evid.) are based on the federal rules. There have been some additions, such as those found in Section 3, but several federal rules are not made 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, and all signs indicate that these necessary changes, which would clearly establish the standard for admissibility of this testimony, will be approved by the Supreme Court soon and 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 effective at courts-martial 18 months after adoption in federal courts. See Mil. R. Evid. 1102.