Short History of the Gatekeeper’s Role. Introduction
The Federal Rules of Evidence, Rules 702, 703, and 704 (and the similar state rules) set forth the rules for admission of expert testimony. Rule 702 is the core rule.
Rule 702. Testimony by Experts. If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise.
Until 1993, most courts held that rule 702 dictated that after the trial judge determined that (1) a “qualified expert” was in court, and (2) “scientific, technical, or other specialized knowledge” would assist the jury, then (a) the expert’s opinion was admissible and (b) the reliability of the opinion and the sufficiency of its factual basis were matters solely for consideration by the jury.
In 1991, The Federal Evidence Rules Advisory Committee proposed to the Supreme Court several changes in the Federal Rules of Evidence. Most of them were adopted by the Supreme Court. One that attracted much attention and was not adopted was a proposed change in Rule 702. That proposed change would have done much that was subsequently addressed in the 1993 case of Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 US 579 (1993). In Daubert the Court made it clear that the trial court had to act as “gatekeeper,” to determine the reliability of the expert’s proffered opinion. Since then, the federal gatekeeper function has grown.
Most states have adopted the text of the federal rule 702 in their own rules. Most states have given indications that the federal interpretations of the rules are persuasive in interpreting their own similar rules.
Because of both the desirability of compatibility, and also the persuasive nature of the federal decisions, various states have now adopted gatekeeper functions for their trial courts. The trial judge now must go beyond the determination whether the jury could use specialized knowledge and the determination whether witness is an expert. The extent to which the states has gone has varied. Texas is an example of a state which has gone far (in this author’s view, too far) in throwing up obstacles to the quick and inexpensive determination of admissibility. North Dakota, on the other hand, is an example of a state which has made little change to date in its practice. [See separate discussion on North Dakota.]
We now proceed to a history of the federal law after Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 US 579 (1993).