Posted: March 20, 2026
Rules of Evidence – Comment Period Closes May 4, 2026
URE0702. Testimony by experts. The proposed amendments recognize existing caselaw allowing the use of so-called “blind experts.”
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Posted: March 20, 2026
URE0702. Testimony by experts. The proposed amendments recognize existing caselaw allowing the use of so-called “blind experts.”
This change and comment really do not elucidate when such testimony would be appropriate. If the expert is not explaining how the principals apply to the facts of the case, why are they even relevant?
If the expert is not applying their knowledge to actual facts in a case, we need to look very closely at what purpose is really served by the expert testimony.
If a principle is so complex that it takes an expert to explain it, can we really expect a lay jury on its own to correctly apply that complex principle to the specific facts of the case?
Alternatively, If a principle is sufficiently simple that a jury does not need expert assistance in applying that principle to the facts, did we really need an expert to explain that principle in the first place?
In other words,
A physicist could expound endlessly on Newton’s laws of motion and a jury could learn much about those principles. But we would not expect a jury, on its own, to then apply those principles to determine whether a bullet with a certain mass, fired from one location could ricochet off a surface and be deflected in another direction, and then still have sufficient speed to apply the force necessary to cause a specific type of injury.
On the other hand, if the injury involved is a black eye from getting punched in the face, we probably don’t need the physicist to testify as a “blind expert” in the first place.
I strongly oppose the proposed amendments to Utah Rule of Evidence 702, particularly the changes to subsection (b)(3) and the 2026 Advisory Committee Note that claim to merely “recognize existing caselaw allowing the use of so-called ‘blind experts.’”
This justification is circular bootstrapping. In State v. Clopten, 2009 UT 84, 223 P.3d 1103, this Court first approved expert testimony on factors affecting eyewitness identification, expressly noting that such experts “may or may not be familiar with the facts of the case” and “will not offer an opinion on whether the specific eyewitness identification is accurate or not,” instead discussing research “in more general terms” (¶19). Courts have since extended this far beyond eyewitness cases.
The very need for this rule change proves Utah courts have not been following the plain text of the existing rule. Current URE 702(b)(3) requires that the expert’s principles or methods “have been reliably applied to the facts.” Blind experts, by definition, do not apply their methods to the facts. As recently as 2025, in State v. Mendoza, 2025 UT App 140, the Court of Appeals upheld testimony from a Children’s Justice Center forensic services manager who testified as a “blind expert” about children’s disclosure patterns and behaviors in sexual-abuse cases. Defense counsel stated on the record that objections were futile, and the Court of Appeals agreed.
This is classic bootstrapping: the courts first permitted a practice that the written rule did not allow. Now the rule is being amended to ratify what the courts have been doing anyway. The circular logic codifies a fallacy before any real challenge to the underlying precedents can be mounted. Therefore, this rule, as proposed, is rotten and will lead to incarcerations based on bad testimony. It shows the originating rulings are rotten at their core.
The standard introduction compounds the problem. Prosecutors establish that the expert has not reviewed the case file, then ask, “So you’re a blind expert?” The witness answers “Yup.” This ritual falsely implies scientific objectivity and neutrality, like “blind justice.” In reality, many of these experts (including the CJC manager in Mendoza) are affiliated with prosecution-oriented institutions, train detectives, and are called by the State. The “blind” label misleadingly enhances their perceived reliability.
This practice disregards core principles of relevance and unfair prejudice (URE 403) and violates defendants’ rights to due process and a fair trial. Jurors inevitably connect the general testimony to the specific facts. There is no legitimate need to further weaken the trial judge’s gatekeeper role or create a special carve-out for abstract, untethered testimony.
I urge the Utah Supreme Court to reject this amendment in its entirety.
I oppose the proposed amendment to Rule 702 as currently drafted.
The amendment references “existing caselaw” permitting so‑called “blind experts,” yet fails to cite any supporting authority. The absence of citations makes the amendment misleading to both practitioners and courts, obscuring the narrow and context‑specific circumstances in which departures from traditional case‑specific expert testimony have been permitted.
In particular, reliance on State v. Clopten (or similar authority) is problematic. Clopten is a criminal‑specific case addressing the role of “educational” or “framework” experts in a limited constitutional context. It cannot properly be read to authorize a broad expansion of expert testimony across all civil and criminal cases. As written, the amendment invites precisely that misuse by divorcing generalized expert testimony from case‑specific application without clearly delineating limits.
The proposed language is therefore likely to be taken out of context and abused. Without careful cabining, it risks undermining the gatekeeping function of Rule 702 by allowing experts to present speculative or abstract testimony untethered to the facts of the case under the guise of merely “educating” the factfinder.
As a member of the Utah Model Jury Instructions Committee, I respectfully suggest a more restrained and transparent approach. If the Committee believes certain cases legitimately recognize narrow exceptions, the better course would be to cite those cases explicitly in the Advisory Committee Note, explaining their procedural posture and limitations. Doing so would provide critical guidance to judges and attorneys and avoid unintended expansion of the rule itself.
The practical consequences of this amendment are also concerning. The change invites expert stacking and unnecessary expense. In the medical malpractice context, for example, parties could retain multiple costly experts to discuss general medical principles, theoretical possibilities, or alternative mechanisms—without ever opining as to what likely occurred in the case at hand. Such testimony would significantly increase litigation costs while providing minimal probative value.
Moreover, juries are likely to be confused rather than assisted by abstract discussions of medical principles or hypothetical possibilities for which there is no evidentiary support in the record. This result runs counter to the core purpose of Rule 702, which is to aid the trier of fact in resolving disputed facts—not to present academic lectures untethered to the case.
For these reasons, I urge the Committee to reject the proposed amendment as written, or, at minimum, confine any discussion of limited exceptions to the Advisory Committee Notes with clear citations and explicit boundaries.