FRE 707 and AI-Generated Evidence: Where the Proposed Rule Stands

Last updated: 31 October 2026. This guide draws on the Advisory Committee on Evidence Rules’ report to the Standing Committee dated 17 May 2026, the committee’s agenda book for its 15 October 2026 meeting (which includes the minutes of the May 2026 and June 2026 meetings and the September 2026 report to the Judicial Conference), the US Courts description of the rulemaking process, the Ministry of Justice call for evidence on software-generated evidence and Annex III of the EU AI Act. It is general information, not legal advice.

Short answer: Federal Rule of Evidence 707 is not law. It was published for comment in August 2025 to make AI and other machine output offered without an expert meet the Rule 702 reliability test. In May 2026 the Advisory Committee declined to send it forward, rewrote it around “artificial intelligence” and sent it back for study. It has no effective date, and it cannot take effect on 1 December 2026.

Key takeaways

• The published Rule 707 said machine-generated evidence offered without an expert, which would be subject to Rule 702 if a witness gave it, is admissible only if it meets Rule 702(a) to (d). The comment period closed on 16 February 2026.
• At its 7 May 2026 meeting, the Advisory Committee on Evidence Rules did not recommend final approval. It preferred a revised draft that presumes an expert is needed and adds a notice requirement, and agreed that any revised rule would need a new round of public comment.
• Neither the Standing Committee in June 2026 nor the Judicial Conference in September 2026 approved Rule 707, and nothing has gone to the Supreme Court. The committee held expert panels on AI evidence and deepfakes on 15 October 2026.
• A separate draft Rule 901(c) on deepfakes is being held in reserve. In England and Wales, the government has consulted on the presumption that computers work properly, while the EU AI Act treats certain AI used to assess evidence as high-risk.

What is proposed Federal Rule of Evidence 707?

Rule 707 is a proposed new rule aimed at a gap in the Federal Rules of Evidence. When an expert relies on software to reach an opinion, the judge tests that reliance under Rule 702, the expert testimony rule. But AI output can also come in without any expert: directly, through a self-authenticating certificate under Rule 902(13), or through a lay witness who “pressed the button” and knows little about how the system works. The committee’s report gives facial recognition evidence offered this way as an example.

The version published for public comment in August 2025 read, in full:

“Rule 707. Machine-Generated Evidence. 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.”

In practice, that would mean the proponent has to show the output helps the jury, rests on sufficient facts or data, comes from reliable principles and methods, and reflects a reliable application of those methods to the case. The committee’s draft note listed the reliability problems it had in mind: using a system for purposes it was not built for, analytical errors, bias in training data and the lack of interpretability of how the machine reached its result. These are the same concerns courts already weigh for forensic methods, as our piece on how accurate fingerprint evidence is shows.

Where does Rule 707 stand in October 2026?

The table below sets out each step, based on the committee’s own records.

The minutes record that the comments were split: 3 offered unqualified support, 27 supported the rule with changes and 27 opposed it. Critics said “machine-generated evidence” was too broad, that the “simple scientific instruments” exception was vague, that the rule might create a route to admit AI output without an expert, and that it was premature. Groups including the ACLU and the New York City Bar Association said the problem was already arising, especially in criminal cases.

The committee’s May 2026 report states plainly that it “does not recommend action on the proposed Rule 707 at this time.” When the chair reported to the Standing Committee in June, the committee’s reporter, Professor Daniel Capra, said this was the first time in his experience that a rule published for comment had not gone forward. The October 2026 agenda book describes the May decision as a vote “to withdraw the proposed rule as issued for public comment, and to submit a modified rule proposal for further study.”

What does the revised draft of Rule 707 say?

The redraft the committee preferred, known in the minutes as Version 2, is titled “Evidence Produced by Artificial Intelligence and Presented at Trial Without an Expert.” It differs from the published text in five ways:

• Scope: it covers “a product of artificial intelligence” rather than “machine-generated evidence”, and drops the scientific instruments exception.
• Reliability test: the four Rule 702 factors are written out in the rule rather than cross-referenced.
• Expert presumption: admissibility “ordinarily requires the proponent to provide an expert”, but in exceptional circumstances the court may rely on other proof, such as validation studies.
• Notice: the evidence is admissible only if the proponent gives the other side reasonable notice.
• Judicial notice and definition: the rule does not apply to facts that can be judicially noticed, and “artificial intelligence” takes the definition in the National Artificial Intelligence Initiative Act of 2020.

The draft note says courts would usually look at whether training data is representative, whether the system has been validated in similar conditions, whether its output can be reproduced or audited, whether independent evaluators have tested it, and whether the opponent has enough information about how it works. If a process cannot be explained, the note says, the court should in most cases find reliability not established. It also suggests a limiting instruction telling jurors not to assume machine output is reliable simply because a machine produced it.

The Department of Justice raised continuing concerns about how the rule would work in practice, according to the minutes, and favoured considering it alongside the deepfake draft. The committee also flagged that the civil and criminal rules might need disclosure changes if Rule 707 goes ahead.

When could Rule 707 take effect?

Not on 1 December 2026, and not on 1 December 2027. Under the Rules Enabling Act, 28 U.S.C. §2074, the Supreme Court must send a new rule to Congress by 1 May, and it takes effect no earlier than 1 December of that year. The US Courts guide to the rulemaking process describes the sequence: advisory committee, public comment, Standing Committee, Judicial Conference, Supreme Court.

To take effect in December 2027, Rule 707 would have needed Judicial Conference approval in September 2026. It did not get that. The committee has also said the revised version must be republished. On the usual annual cycle, where proposals are published in August and receive final approval the following year, a revised rule published in August 2027 could not take effect before 1 December 2029. That is our estimate based on the standard timetable, not a date the committee has set. It is also possible the committee drops the idea altogether.

Until then, federal judges handle AI evidence under the existing rules: Rule 702 when an expert relies on AI, Rule 901 for authentication, Rule 403 for unfair prejudice and their general case management powers. Lawyers who use AI to prepare filings face separate risks, covered in our guide to AI hallucination sanctions.

What about deepfakes and Rule 901?

Deepfakes raise a different problem: not whether real AI output is reliable, but whether a video, image or recording is genuine at all. Authentication under Rule 901(a) has a low bar: evidence “sufficient to support a finding” that the item is what its proponent claims.

The committee has decided that, for now, an amendment to Rule 901 is not warranted. Its May 2026 report says few courts have yet faced deepfake claims, and a Federal Judicial Center survey found only 15 judges reporting a deepfake issue. Instead, it has a working draft of a new Rule 901(c) ready to use if needed. Under that draft, a party claiming an item was fabricated by generative AI must first produce evidence sufficient to support a finding of fabrication. If it does, the proponent must show the court the item is “more likely than not authentic.” The draft also requires reasonable pretrial notice of a fabrication claim. The forensic side of this debate is covered in our article on how experts tell real footage from deepfakes.

How do the UK and EU approach AI evidence?

Neither has a direct equivalent of Rule 707, but both are moving in related directions.

England and Wales. In criminal cases, courts presume that a computer was operating correctly unless there is evidence to the contrary. That common law presumption replaced section 69 of the Police and Criminal Evidence Act 1984, which was repealed by the Youth Justice and Criminal Evidence Act 1999. After the Post Office Horizon scandal, the Ministry of Justice opened a call for evidence on software-generated evidence on 21 January 2025, which closed on 15 April 2025. It proposed limiting any reform to evidence generated by software, expressly including AI and algorithms. When we checked, the page said a summary of responses would be published in due course.

European Union. The EU AI Act regulates AI systems rather than courtroom admissibility, which stays with national procedural law. Annex III lists as high-risk AI systems used by law enforcement “to evaluate the reliability of evidence” in criminal investigations and prosecutions, and systems used to assist a judicial authority “in researching and interpreting facts and the law.” The timing of those obligations has shifted, as explained in our guide to the EU AI Act after the Digital Omnibus.

What should litigators do now?

Even without a new rule, the committee’s drafts are a useful checklist for challenging or defending AI output. Ask for the training data description, validation studies, error rates, audit logs and whether independent testers have had access. Raise reliability early, before trial, and ask for a limiting instruction if the output comes in. If you rely on AI tools for review or analysis, keep records of what the tool did and how it was checked. Our directory of e-discovery and litigation tools is a starting point for comparing products, and the duties in ABA Formal Opinion 512 apply to any AI a lawyer uses on a matter.

Frequently asked questions

Is Federal Rule of Evidence 707 in force?

No. Rule 707 was published for comment in 2025, but the Advisory Committee did not recommend final approval in May 2026. It has not been approved by the Standing Committee, the Judicial Conference or the Supreme Court, so it has no effective date.

Will Rule 707 take effect on 1 December 2026?

No. A rule taking effect on 1 December 2026 needed Supreme Court approval by 1 May 2026. Rule 707 never reached that stage, and the committee has said a revised version would need a new public comment period.

What does Rule 707 require?

As published, it requires machine-generated evidence offered without an expert, which would be expert testimony if a person gave it, to meet the Rule 702 reliability standards. The revised draft also presumes an expert is needed and requires notice.

Does Rule 707 apply to deepfakes?

No. Rule 707 is about the reliability of genuine AI output. Deepfakes raise authenticity questions, which the committee is addressing through a separate working draft of Rule 901(c) that it is holding in reserve for now.

How are AI-generated exhibits handled in federal court today?

Under the existing rules. Judges apply Rule 702 when an expert relies on AI, Rule 901 for authentication, Rule 403 to exclude unfairly prejudicial evidence, and their general case management powers before trial.

Does the UK have a rule like Rule 707?

No. England and Wales rely on a common law presumption that computers work properly. The Ministry of Justice consulted in 2025 on reforming that presumption for software-generated evidence, including AI, but no new rule had been made when we checked.

This article is general information about proposed changes to the US Federal Rules of Evidence and related developments in England and Wales and the EU as of 31 October 2026. It is not legal advice. Rulemaking is ongoing, so check the latest committee records on uscourts.gov and take advice from a qualified lawyer before relying on this summary in a case.