Also known as: error rate · rates of error · error rates
Written by attorneys · grounded in primary & secondary sources — see below
An indicator of methodological reliability in expert testimony consisting of the known or potential frequency with which a scientific technique or procedure produces erroneous results. Courts consider this factor when deciding whether the underlying principles and methods satisfy the reliability threshold for admission under Federal Rule of Evidence 702.
Patient Maria Ortiz sues Metro General Hospital after suffering a stroke. The hospital offers Dr. Lin to testify that the stroke was unavoidable based on an emerging AI diagnostic program with few validation studies and an unclear error rate. The judge examines the program's known or potential rate of error as part of the reliability assessment before deciding whether Dr. Lin's testimony may reach the jury.
Plaintiffs sue Kumho Tire after a tire blowout causes a fatal accident. Their expert Carlson relies on a visual and tactile inspection method to conclude the tire was defective. The district court evaluates the method's known or potential rate of error along with other reliability factors and excludes the testimony because the error rate undermines confidence in the results.
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Oakbridge Investors sues Apex Capital for securities fraud and offers Dr. Rivera to estimate class-wide damages using a novel event study with alternative market indices. The study lacks any documented error rate. The court treats the absence of a known error rate as a key indicator that the methodology may be unreliable and therefore excludes the testimony.
A military defendant offers polygraph results to bolster his credibility at court-martial. The government objects that the technique's error rate has not been sufficiently established. The court considers the known or potential rate of error as part of its reliability inquiry and excludes the evidence because the error rate raises serious doubts about trustworthiness.
A high or unknown error rate signals that the methodology may be unreliable. Courts treat this factor as evidence that the technique is unlikely to assist the jury and therefore exclude the testimony under the gatekeeping standard.
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The error rate is one nonexclusive factor among several that courts may consider. No single factor is dispositive, and the inquiry remains flexible and case-specific even when error rate data are unavailable.
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Absence of a documented error rate does not automatically require exclusion. The court must still weigh the factor together with testing, peer review, standards, and general acceptance to decide whether the methodology is sufficiently reliable overall.
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The same reliability factors, including error rate, guide the inquiry for technical and other specialized knowledge. Courts retain discretion to consider additional indicia of reliability suited to the particular field while still evaluating whether the method produces trustworthy results.
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…it's been subjected to peer review and publication; whether it can be and has been tested; and whether the known or potential rate of error is acceptable. Id. at ----, 113 S.Ct. at 2796-97.[^maj-3] We read these factors as illustrative rather than exhaustive; similarly, we do not deem each of them to be equally applicable (or…