Mimesis Law
8 December 2019

In Georgia, Any “Expert” Will Do In A Criminal Court

Nov. 6, 2015 (Mimesis Law) — In many criminal cases, verdicts rise or fall on the admission of expert testimony. Indeed, in cop shooting cases, there can be no prosecution without an expert to testify whether the shoot was justified. So the expertise of a witness matters. A lot.

In Georgia, if you want to submit scientific testimony in a civil case, you have to jump through some hoops. You need to demonstrate that your expert is a real expert, that he used a real scientific process to establish real facts, and that he isn’t just making things up on the spot. If you’re arguing that a doctor messed up, you have to do one better and prove that whoever is testifying is a specialist in whatever area he’s testifying about.

Civil cases live or die on whether your expert is qualified to give an opinion upon which the jury can rely.

If the rules are this strict when it’s just money on the line, you can imagine how difficult it must be to get scientific evidence into criminal cases. Let’s just take a second to peruse the rule:

In criminal proceedings, the opinions of experts on any question of science, skill, trade, or like questions shall always be admissible; and such opinions may be given on the facts as proved by other witnesses.

Wait. What?

Yes, that’s right. So let’s say you’re a pediatrician charged with medical malpractice that leads to the death of a child. In your civil case, the testimony of a podiatrist would be inadmissible to establish that you made a mistake taking care of the child. If a specialist was unwilling to make the same claim, you could win before trial under Georgia’s tort reform rules.

But if prosecutors charged you with negligent cruelty to children and felony murder for that exact same conduct, there would be nothing to stop the government from calling in that same podiatrist to testify to what you could have done differently. That podiatrist’s testimony, while fatally insufficient to prove by a preponderance of the evidence that you were civilly negligent, would be good enough to establish your criminal negligence beyond a reasonable doubt.

There’s a reason that the civil defense bar lobbies for the use of real science in their trials. As much as we laud the jury system, nobody wants to risk their livelihood on the judgment of twelve laypeople about their professional decisions. This is especially true in cases where the emotional stakes are high.

But criminal defendants don’t have nearly the same ability to put cash into a legislator’s pocket for favorable laws, and privatized prisons and probation services need to keep asses in beds and on rosters. So Georgia laws continue to assure better science for civil litigants than for criminal defendants.

The legislature goes out of its way to make the distinction clear:

It is the intent of the legislature that, in all civil proceedings, the courts of the State of Georgia not be viewed as open to expert evidence that would not be admissible in other states.

In other words, it’s our hope that businesses won’t think that we’ll apply crap science to their trials just because we let it into criminal cases.

How does Georgia justify the difference in the rules? Strangely enough, the issue hasn’t been litigated much. In one civil case, a plaintiff complained to the Supreme Court of Georgia that it was unfair his doctors’ testimony was excluded in a civil trial when it would be admissible in a criminal case. The court held that it doesn’t violate equal protection to stack the deck in favor of civil defendants while leaving accused criminals at the mercy of junk science. There was, at least, an interesting dissent:

“There is no rational reason for the Legislature to limit solely to civil cases the use of expert opinion testimony that is the product of reliable principles and methods applied reliably to the facts of a case. By creating different standards of admissibility based only on the nature of the litigation, OCGA § 24-9-67.1 creates the untenable situation where the same evidence proffered by the same expert witness for the same purpose may be allowed in criminal trials but excluded in civil trials.”

Now, someone standing up for Georgia’s statutory scheme might say that these laws are actually protective of criminal defendants, since they allows a defendant’s junk science to come in as well. But despite the broad language of the law, courts have generally held that whatever the trial court decides is fine. So, for instance, it is fine to bring in two “experts” on “pimping culture,” but criminal defendants are rarely allowed to bring in eyewitness identification experts.

In short, all the law really does is rubber-stamp a second double-standard: evidence of guilt comes in, evidence of innocence is excluded as “unnecessary” and “problematic.”

And let’s not think that this is some old law that just hasn’t recently been subjected to scrutiny. Georgia substantially adopted the Federal Rules of Evidence in 2013. We decided to keep our special exception to ensure that crappy forensic science continues to drift into criminal cases. This decision came at a time when 47 percent of false convictions were found to have been the result of bad forensics.

But now, living in a state where the chief medical examiner of the Georgia Bureau of Investigation was too busy selling his favorable opinion to the highest bidder to actually spend any time making sure that autopsies were being correctly conducted, where the government calls bite mark “experts” and then prevent the defense’s expert witness from offering a rebuttal, it is difficult to defend a law that requires better proof to take the contents of a man’s wallet than the span of his life.

It’s bad enough that Georgia favors the rights of its businesses over its citizens. It’s not unique in that regard. But the least it could do is pretend otherwise. At this point, even the perception of fairness would be an improvement.

2 Comments on this post.

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  • Ken Womble
    6 November 2015 at 9:58 am - Reply

    Not to mention that experts are unreasonably expensive. Gubmints have deep pockets, criminal defendants and their public defenders rarely do.

    • Andrew Fleischman
      6 November 2015 at 10:20 am - Reply

      It’s always frustrating to see a case where the defendant has to pick and choose to find the best, most affordable expert. Then the State just grabs ten people to say the opposite, expense be damned.

      In my ideal world, states would provide funding for accurate, neutral forensic expertise and testimony, instead of relying on crime labs that have to be begged to test anything for the defense.