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A New Standard in Criminal Cases

Georgia House Bill 478

The State of Georgia is following suit with a national move to the Daubert evidentiary standard in criminal cases. Established in a 1993 federal case, the Daubert standard requires each judge to act as a gatekeeper in determining if expert testimony is based upon “scientifically-proven” principles, and thus admissible in court. With this shift, Georgia joins 26 other states and the District of Columbia in employing this method.

What was the old evidentiary standard?

Over the years, the State of Georgia has applied several different evidentiary standards for expert testimony in criminal cases. For years, the Frye standard controlled. It concluded that expert opinions must only be “generally accepted” as reliable in the scientific community in order to be admissible in court. This standard was phased out in 1982 when the Harper standard replaced Frye in Georgia for both civil and criminal cases. The Harper standard raised the benchmark for reliable testimony from “generally accepted” to “verifiably certain” – a shift toward better ensuring that expert testimony would indeed be garnered from a true expert, and not simply based in speculation. However, trial judges still retained a great deal of discretion in determining “verifiable certainty.”

The Harper standard prevailed in Georgia in civil cases until 2005, at which time the State moved civil cases to the Daubert evidentiary standard. However, criminal cases have remained under the Harper standard for the last 40 years. In March of 2022, the Georgia General Assembly passed House Bill 478, extending the Daubert evidentiary standard to criminal cases.

What is the Daubert evidentiary standard?

The Daubert standard names trial judges as “gatekeepers” and requires them to measure admissibility of expert testimony based on five factors:

  1.  Can / has the theory or technique in question be tested?

  2. Has it been subjected to peer review and publication?

  3. What is the known or potential error rate?

  4. Are there standards controlling its operation?

  5. Has the theory or technique attracted widespread acceptance within a relevant scientific community?

As gatekeepers, judges are obligated to look beyond a resume, CV, or title and really question the validity of expert testimony based on the methods and processes of how  the expert came to his or her conclusions. This determination is generally conducted in a separate hearing well before a trial begins (even before jury selection). However, if questions arise during a trial regarding the validity of expert testimony, the judge may dismiss the jury and reevaluate the admissibility of certain evidence under the Daubert standard.

What does this shift mean for my criminal case?

When an “expert” takes the stand in a criminal case, the weight of their presumed status can certainly sway the opinions of the jury. That’s why evidentiary standards like Daubert are so important – to ensure that expert testimony is grounded in scientific evidence beyond opinion, conjecture, or personal beliefs.

“If an expert testifies, a jury can more confidently make difficult decisions as compared to when a lay person testifies,” explains Whitehurst, Blackburn & Warren partner Joe Cargile. “With this change, there’s now greater opportunity to question someone’s level of expertise by asking what facts and data they are using to reach these conclusions.”

The adoption of the Daubert evidentiary standard will likely add a new layer for legal teams in the preparation of a criminal case going to trial, and it will also place criminal cases tried in Georgia on more equal footing with federal and national standards, and with Georgia’s civil cases, too.

“I’ll certainly be thinking about how Daubert applies in our clients’ criminal cases,” says Cargile. “For me, and a lot of attorneys who deal with criminal cases, we’re going to have to keep an eye on how this impacts established case law, as well as how we evaluate cases from the very beginning.”

HB 478 passed in the Georgia General Assembly on March 30, 2022 and was recently signed by Gov. Brian Kemp. The standard is set to go into effect July 1, 2022.

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