PASSAGE OF THE DAY: "The 2005 split also predated the ever-increasing number of Georgia exonerations, many involving the use of unreliable forensic evidence. Thus, the statute applied in 2006, when Sheila Denton, an indigent Black woman, was convicted of murder and sentenced to life in prison in Waycross, due to the admission of unreliable, “scientific” bite-mark evidence. That very same evidence would have been subjected to a very different standard—indeed it would have been subjected to a standard at all—if this had been a wrongful death suit in a Georgia civil court. The civil standard would have required a showing that the proffered evidence was based in reliable science and was applied in a scientifically reliable way, a standard bite-mark evidence never would have passed. In February 2020, Ms. Denton was granted a new trial and released from prison. Is the Denton case an isolated example? The data (on file with authors) suggest not."
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STORY: Georgia can do better than offer uniquely unequal evidence standard," by Mark Loudon-brown and M. Chris Fabricant," published by law.com on January 27, 2021. (Mark Loudon-Brown is senior attorney at the Southern Center for Human Rights; he represented Shelia Denton.M. Chris Fabricant is director of strategic litigation at the Innocence Project Inc.)
GIST: In 1982, the Supreme Court of Georgia held, in Harper v. State, that in deciding whether to admit expert scientific evidence, a trial court should ask whether “the procedure or technique in question has reached a scientific stage of verifiable certainty.” This was the law in both civil and criminal courts for the next 23 years, until 2005.
With the support of a tort-reform lobby seeking to shield businesses from liability claims rooted in suspect “scientific” evidence, the Legislature passed O.C.G.A. § 24-7-702.
This statute essentially incorporated the federal Daubert standard of admissibility, requiring that scientific evidence be based on reliable scientific methods and that such methods be reliably applied in the given case. Reliability thus became the touchstone for the admission of science into civil court.
In criminal court, however, “[p]rosecutors opposed any adoption of Daubert in criminal cases and lawmakers responded by limiting” § 702 to civil cases. Paul S. Milich, Georgia’s New Evidence Code—An Overview, 28 Ga. St. U. L. Rev. 379, 409 (2012).
Pursuant to § 24-7-707, in criminal court “the opinions of experts on any question of science, skill, trade, or like questions shall always be admissible.”
Where a person’s life is at stake, unreliable “scientific” evidence was and shall always be admissible; where money is the issue, however, the evidence must be proved to be reliably scientific. Georgia can do better.
This 2005 split between criminal and civil codes predated the 2009 National Academy of Sciences report on the validity and reliability of the most commonly used forensic techniques, a watershed publication exposing the problems caused by the admission of unreliable “scientific” evidence in criminal courts.
The 2005 split also predated the ever-increasing number of Georgia exonerations, many involving the use of unreliable forensic evidence. Thus, the statute applied in 2006, when Sheila Denton, an indigent Black woman, was convicted of murder and sentenced to life in prison in Waycross, due to the admission of unreliable, “scientific” bite-mark evidence. That very same evidence would have been subjected to a very different standard—indeed it would have been subjected to a standard at all—if this had been a wrongful death suit in a Georgia civil court.
The civil standard would have required a showing that the proffered evidence was based in reliable science and was applied in a scientifically reliable way, a standard bite-mark evidence never would have passed. In February 2020, Ms. Denton was granted a new trial and released from prison.
Is the Denton case an isolated example? The data (on file with authors) suggest not. An analysis of every reported criminal court opinion since the 2005 civil/criminal split indicates that no indigent person of color has ever successfully prevented proffered scientific evidence from being used to convict.
Meanwhile, approximately 44% of civil defendants in reported decisions have successfully prevented unreliable scientific evidence from being admitted against them. While civil defendants won challenges almost half of the time, over in criminal court defendants nearly always lost similar challenges.
This criminal-civil inequality is a phenomenon unique to Georgia. No other state has this kind of disparity in evidentiary standards between criminal and civil court."
The entire story can be read at:
