(Partial) Clarity: Eliminating the Confusion About the Regulation of the Fact ual Bases for Expert Testimony Under the Federal Rules of Evidence

Expert testimony is offered at the vast majority of trials in courts of general jurisdiction in the United States. Federal Rules of Evidence 702-06 govern the admissibility of such testimony. In its May 15, 2021, report accompanying the most recent proposed amendment to Rule 702, the Advisory Committee on the Evidence Rules asserts that “many courts” have misapplied Rule 702 by holding that questions as to whether “the expert has relied on sufficient facts or data ... are questions of weight and not admissibility.” Rule 702(b) states that to be admissible, an expert opinion must be “based on sufficient fact or data.” The Committee adds that this error has occurred “in a fair number of cases.” The Committee’s criticism is valid—but incomplete. The central contention of this Article is that another major, contributing cause to the problem is the courts’ misunderstanding of the relationship between the expression “scientific ... knowledge” in Rule 702 and the expressions “facts” or “facts or data” which appear in Rules 702(b), 702(d), 703, and 705. This Article contends that properly interpreted, the latter expressions include only case-specific information, not research data relevant to the validation of the expert’s methodology as reliable “scientific ... knowledge.” Positing that interpretation, this Article then attempts to clarify the judge’s and jury’s roles in evaluating the credibility, quality, and quantity of the factual bases for proffered expert opinions. More specifically, the Article argues that the jury has the exclusive authority to pass on the credibility of the testimony about the factual bases of admitted opinions. However, before admitting the opinion, the judge must assess the quality of the type of case-specific information that the expert contemplates relying on. If the information takes the form of secondhand reports about out-of-court statements, under Rule 703 the judge must determine whether the “experts in the particular field would reasonably rely on those kinds of facts or data.” Moreover, again before allowing the expert to submit his or her opinion to the jury, under Rule 702(b) the judge must independently assess the quantity of the information. For example, if an accident reconstruction expert proposes opining about the point of impact (POI) in a case, the judge must inquire whether the expert has identified enough case-specific information such as testimony about the vehicles’ final resting places and the location of the debris to adequately support a conclusion about POI. These conclusions not only respect the legitimate authority of both judge and jury, but they also give the Rule provisions on expert testimony logical coherence

The Application of the Attorney-Client Privilege to Non-Testifying Experts: Reestablishing the Boundaries Between the Attorney-Client Privilege and the Work Product Protection

The first part of the Article analyzes the client\u27s direct communications with the expert, acknowledging that, at least in some circumstances, those communications should be protected absolutely under the attorney-client privilege. The balance of the Article, however, differentiates between the client\u27s communications and the rest of the expert\u27s information, including the expert\u27s conclusions and reasoning process. The Article asserts that one can draw a principled distinction between the client\u27s communications and the rest of the expert\u27s information. The second part of the Article argues that the rest of the expert information in its own right does not qualify under the attorney-client privilege. The third and final part of the Article focuses on the admittedly close relationship between the client\u27s communications with the expert and the rest of the expert\u27s information. This part contends that even given the difficulty in some cases of severing the references to the communications from the balance of the expert\u27s report, the opposition- the prosecution in our hypothetical-is entitled to discover the balance of the report