The text of New Jersey’s current rule on expert testimony has not been updated since 1991. In this same period, the Federal Rules of Evidence, the Uniform Rules of Evidence, numerous state evidence rules, and our own jurisprudence have all changed to reflect the increased importance and use of expert testimony.
At the federal level, courts consistently apply a reliable standard for allowing expert testimony in cases, known as the Daubert standard.
Under the Daubert standard, before a witness offers expert testimony the judge must determine whether the offered evidence is based on sufficient facts or data; confirm that the evidence is the product of reliable principles and methods; and ensure the evidence is based on the application of those principles and methods to the facts of the case.
We know New Jersey courts are not applying a standard as consistent or strong as the Daubert standard because there have been cases where an expert was allowed to testify in New Jersey, but was barred from testifying in a similar case in federal court.
New Jersey’s judges deserve to have a time-tested and trial-perfected set of rules that they can apply consistently to all cases to keep junk science out of the courtroom instead of a vague directive to do what they think is best.
New Jersey’s 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.”
Case Law Interpreting the Federal Rules:
Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993).
General Electric Co. v. Joiner, 522 U.S. 136 (1997).
Kumho Tire Co. v. Carmichael, 526 U.S. 137 (1999).
New Jersey Reform Efforts
Business Community Asks Court to Update Evidence Rules: May 19, 2015.
NJCJI’s Comments on the Rules Committee’s Report: April 9, 2015.
Notice to the bar: February 11, 2015.
Report of the Committee on the Rules of Evidence: January 15, 2015.
Letter from Prof. David Bernstein to the Courts: May 10, 2014.