Probability for expert opinions is the correct standard for civil cases based on the preponderance of the evidence burden of proof. Among other effects, the probability requirement reduces jury speculation, avoids absurdity, appropriately adopts legal relevance as the standard for admission, and avoids negative effects on the out-of-courtroom practices of professionals. Expert opinions explaining possibilities, while inappropriate for civil case consideration, have Rule 702 relevance and are useful in criminal cases based upon the beyond a reasonable doubt burden of proof. Based on an evaluation of federal and state cases, Rule 702, and the purposes of expert testimony, the Ohio example of split relevancy standards for expert opinions offered in criminal and civil cases is an appropriate, reasonable, and sensible approach to Rule 702 relevance.
Jurs, Andrew W.
"Daubert, Probabilities and Possibilities, and the Ohio Solution: A Sensible Approach to Relevance Under Rule 702 in Civil and Criminal Applications,"
Akron Law Review: Vol. 41
, Article 1.
Available at: http://ideaexchange.uakron.edu/akronlawreview/vol41/iss2/1