Proposed Federal Rule of Evidence 707

What happened

Proposed Federal Rule of Evidence 707 addresses machine-generated evidence offered without a sponsoring expert. The version published for public comment read: "When machine-generated evidence is offered without an expert witness and would be subject to Rule 702 if testified to by a witness, the court may admit the evidence only if it satisfies the requirements of Rule 702 (a)-(d). This rule does not apply to the output of simple scientific instruments." Rule 702 is the federal rule that sets the reliability requirements for expert testimony.

According to reporting by Proskauer in the National Law Review, the Advisory Committee on Evidence Rules voted 8-1 on May 2, 2025 to publish the rule, with the Department of Justice dissenting. The Standing Committee (the Committee on Rules of Practice and Procedure) approved publication on June 10, 2025. The comment period ran from August 15, 2025 to February 16, 2026.

Separately, the Advisory Committee had spent several meetings on a possible Rule 901(c), a draft authentication provision for alleged deepfakes (fabricated audio, video or images). As summarized in the committee's report, the draft used a 2-step process. The opponent would first have to show that fabrication is likely, and the proponent would then have to establish authenticity by a preponderance of the evidence.

What was issued or decided

The Advisory Committee met on May 7, 2026. Its report to the Standing Committee, signed by Chair Jesse M. Furman, states that the committee "does not recommend action on the proposed Rule 707 at this time. Instead, it has revised the proposed Rule and plans to conduct further study." The report tallies the comments: 3 in unqualified support, 27 supporting the rule subject to revisions and 27 opposed. It lists as criticisms the breadth of the term "machine-generated evidence" and the vagueness of the simple-scientific-instruments exception.

The revised draft replaces "machine-generated" with "artificial intelligence," deletes the simple-scientific-instruments exception and adds a notice provision. The committee agreed that the revised rule would require re-publication. It decided instead to have the draft vetted at its fall 2026 meeting by technology experts and others in the field.

On deepfakes, the report states: "The Committee is of the view that, at least for now, an amendment to Rule 901 to address deepfakes is not warranted." It cites a Federal Judicial Center survey in which 15 judges reported having dealt with deepfake issues, and it plans a mini-conference on the subject at the fall 2026 meeting.

Where it stands

Proskauer reports that the Standing Committee, at its June 2026 meeting, did not recommend action on Rule 707 and returned it for revision and further study. The package of evidence amendments that the federal judiciary published for comment on August 14, 2026 covers Rules 104 and 902 only. Neither Rule 707 nor a Rule 901(c) is in it. As of September 11, 2026, no federal rule of evidence specific to AI output or deepfakes is in effect or pending final approval.

How it maps to the Standard

The proposal engages Clause 4 of the Standard, checkability before adoption. Its premise is that output from a system, offered without a person to vouch for it, should meet the same reliability showing as an expert's opinion. An expert who relies on such output in a report is already exposed to Rule 702 scrutiny. An expert should therefore be able to show how the output was checked and on what data.

It also engages Clause 5, reproducible analysis. A method that can be re-run and explained is the kind of evidence a reliability inquiry can test. The revised draft's notice provision points in the same direction as Clause 8: the opposing party learns that AI was used before trial.

Sources

• Advisory Committee on Evidence Rules (uscourts.gov) · May 2026
  Report of the Advisory Committee on Evidence Rules
• United States Courts · August 14, 2026
  Proposed Amendments Published for Public Comment
• National Law Review (Proskauer) · July 29, 2026
  Machine-Generated Evidence Challenges the Federal Rules: Inside the Contested Proposed Federal Rule of Evidence 707
• Nelson Mullins · June 11, 2025
  Safeguarding the Courtroom from AI-Generated Evidence: Federal Rule of Evidence 707

What could not be confirmed

Comment counts differ across sources: the committee's own tally is 3, 27 and 27; one law firm (Baker Botts) reported more than 70 written comments. The Standing Committee's June 2026 action is taken from Proskauer's report; its minutes were not opened. The published 2025 text is quoted from Nelson Mullins and was not opened on uscourts.gov.