July 22, 2003


     
ADM File No. 2001-29



Amendment of Rule 702
of the Michigan Rules of Evidence
_____________________________


     On order of the Court, notice of the proposed changes and an opportunity for
comment in writing and at a public hearing having been provided, and consideration
having been given to the comments received, the following amendment of Rule 702 of
the Michigan Rules of Evidence is adopted, effective January 1, 2004.


[The present language of Rule 702 is amended as indicated below  
  by underlining for additions and strikeovers for deletions.]

ICLE Editor's Note:


[Italicized, bracketed text] indicates text that has been deleted.

Bold text  indicates new text.



Rule 702   Testimony by Experts

If the court determines that [recognized] 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 if (1)
the testimony is based on sufficient facts or data, (2) the testimony is the product of
reliable principles and methods, and (3) the witness has applied the principles and
methods reliably to the facts of the case.


     Staff Comment: The July 22, 2003, amendment of MRE 702, effective
January 1, 2004, conforms the Michigan rule to Rule 702 of the Federal Rules of
Evidence, as amended effective December 1, 2000, except that the Michigan rule retains
the words "the court determines that" after the word "If" at the outset of the rule.  The
new language requires trial judges to act as gatekeepers who must exclude unreliable
expert testimony.  See Daubert v Merrell Dow Pharmaceuticals, Inc, 509 US 579; 113 S
Ct 2786; 125 L Ed 2d 469 (1993), and Kumho Tire Co, Ltd v Carmichael, 526 US 137;
119 S Ct 1167; 143 L Ed 2d 238 (1999).  The retained words emphasize the centrality of
the court's gatekeeping role in excluding unproven expert theories and methodologies
from jury consideration. 

     The staff comment is published only for the benefit of the bench and bar and is
not an authoritative construction by the Court.

     Cavanagh, J., opposes the amendment of MRE 702.

     Weaver, J., would not adopt the amendment of MRE 702 at the present time.

     Kelly, J., states:

     I would make no change in the rule at this time.  The data furnished to the Court
does not support altering the status quo.  I agree with the Prosecuting Attorneys
Association of Michigan and others presenting their position that this amendment will
produce significant changes in civil and criminal trials when no compelling need has
been shown.