LCJ Urges Revision of Proposed Rule 707 to “Close the Rule 702 Gap”

LCJ’s Public Comment on proposed Rule 707 to govern the admissibility of machine-generated (AI) opinion evidence urges the Advisory Committee on Evidence Rules to revise its proposal to establish an expectation that such evidence is admissible only through an expert witness.

The Advisory Committee has identified a real problem that needs to be addressed; namely, that machine-generated opinions raise reliability concerns that require uniform admissibility standards. But LCJ concludes that the current draft of proposed FRE 707 does not meet that goal. While the Advisory Committee’s purpose is to ensure that machine-generated opinions rarely, if ever, are admitted into evidence without expert testimony, LCJ argues that reliability factors to evaluate the evidence, such as training data, validation, error rates, explicability, should be made explicit in the rule. Judges and lawyers should not be forced to extrapolate reliability criteria from a cross-reference to the language of FRE 702(a)-(d).

LCJ’s Comment was filed pursuant to the current public comment period on proposed FRE 707. LCJ members are urged to consider filing comments with the Advisory Committee on Evidence Rules before the February 16 deadline for written comments. A virtual public hearing by the Advisory Committee on proposed Rule 707 is set for January 29.

Read LCJ’s Public Comment on Proposed Rule 707 here.