Proposed Kentucky Rule Amendments: Revised Rule 702 Would "Codify" Daubert and Its Progeny

Barry M. Miller, our Kentucky correspondent, draws our attention to proposed amendments to the Kentucky Rules of Evidence, under which Kentucky would conform its current version of Rule 702 to the federal version as amended in 2000.

Kentucky first adopted Daubert eleven years ago, in Mitchell v. Commonwealth, 908 S.W.2d 100 (Ky. 1995). Is the state's contemplated adoption of the 2000 amendments to Fed. R. Evid. 702 now intended to codify existing jurisprudence under Daubert and Mitchell, or displace it? The Evidence Rules Commission Notes give the answer:

In 1995, the Kentucky Supreme Court followed the lead of the United States Supreme Court and adopted the rationale of the Daubert decision as the appropriate interpretation of the language of Rule 702. Mitchell v. Commonwealth, 908 S.W.2d 100 (Ky. 1995). In 2004, the Kentucky Supreme Court restated the flexible standard originally espoused in Daubert in Toyota Motor Corp. v. Gregory, 136 S.W.3d 35 (Ky. 2004).

The 2007 amendment to Kentucky Rule of Evidence, Rule 702 is designed to follow the development and adopts exact language set by the Federal Rules. The amendment will codify the approach taken in the Daubert case, followed in the Toyota Motor Corp. case and allow the trial court to act as gatekeeper to the introduction of "scientific, technical, or other specialized knowledge." The amendment does not specifically require the use of all or any one of the factors suggested by the court. It allows the trial court to use those factors that are appropriate to the case at trial.