Posted by David Bernstein:
Georgia Legislature Abdicates to Junk Expert Testimony in Criminal Cases:
As long-time VC readers know, one of my academic interests in the
admissibility of expert testimony. In general, I am sympathetic to the
trend in American courts to have much stricter exclusionary rules for
expert testimony.
Ever since Peter Huber published the manifesto of the anti "junk
science" movement, Galileo's Revenge: Junk Science in the Courtroom
(for which I was a research assistant while in law school) in 1991,
critics have argued that advocates for stricter standards for
admissibility of expert evidence are mere shills for corporate
defendants seeking to deny plaintiffs just compensation.
I've never given this theory much credence, but the Georgia
legislature seems out to prove me wrong. Georgia recently passed a law
[1]stating:
It is the intent of the legislature that, in all civil cases, the
courts of the State of Georgia not be viewed as open to expert
evidence that would not be admissible in other states. Therefore,
in interpreting and applying this Code section, the courts of this
state may draw from the opinions of the United States Supreme Court
in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579
(1993); General Electric Co. v. Joiner, 522 U.S. 136 (1997); Kumho
Tire Co. Ltd. v. Carmichael, 526 U.S. 137 (1999); and other cases
in federal courts applying the standards announced by the United
States Supreme Court in these cases.
So far, so good. I've published [2]an article arguing that state
courts should adopt the Daubert trilogy.
However, the law also requires that even the junkiest of junk scienc
be admissible in criminal cases: "In criminal cases, 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." This test--that any loosely
qualified expert can say virtually anything he wants in court, with no
screening beyond his c.v.--is what junk science foes have
disparagingly called the "let-it-all-in philosophy."
While my own writing has been primarily about civil cases, junk
science, and otherwise bad expert testimony, is an even worse problem
in criminal cases; few criminal defendants have the sort of resources
that big companies defending toxic torts cases have to hire their own
experts. Indeed, it seems that in many cases involving egregious
expert testimony, overburdened and under-resourced public defenders
don't even bother (or know enough) to challenge prosecution experts.
Consider that one of the worst offenders in expert witness history, a
forensic anthropologist who claimed the unique ability to determine
all sorts of specific information about a suspect from a shoeprint,
had her testimony excluded in only one of the dozens of cases in which
she testified for the prosecution.
In short, the Georgia law is a scandal, appropriately protecting civil
defendants from unreliable expert testimony, but leaving mostly
impecunious and ignorant criminal defendants to fend for themselves
against the worst types of abusive expert testimony. (Even worse,
taking the law literally, which I doubt the legislature intended, even
Rule 403, 404, and other general evidence rules wouldn't apply to
expert testimony in criminal cases, because such testimony is "always
admissible").
It would be nice if we could trust prosecutors not to abuse the
privilege the Georgia legislature has given them, and to rely
voluntarily only on reliable testimony that would past Daubert trilogy
muster. Unfortunately, however, my knowledge of how prosecutors
willingly use outrageously bad expert tesimony if they think it will
help get them a conviction suggests that one might as well believe in
the tooth fairy.
References
1. http://www.legis.state.ga.us/legis/2005_06/fulltext/sb3.htm
2. http://papers.ssrn.com/sol3/papers.cfm?abstract_id=498786
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