"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......... "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..........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."
.
http://mimesislaw.com/fault-lines/in-georgia-any-expert-will-do-in-a-criminal-court/4419