The Volokh Conspiracy - 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 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 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 have often willingly used outrageously bad expert tesimony when they thought it would help get them a conviction suggests that one might as well believe in the tooth fairy.

UPDATE: Several readers have pointed out that criminal defendants, too, can take advantage of the leniency of the Georgia law, as by bringing in quack experts supporting various "diminished responsibility" theories. It's certainly true that defendants, especially wealthy defendants, can bring in bad expert testimony, as the O.J. trial showed. But the vast majority of criminal defendants don't have a prayer of winning a diminished responsility case, and, in any event, most defendants, unlike prosecutors, don't have the resources to bring in a parade of charlatans and hired guns. So I'll stick to my view that this is a very unjust, pro-prosecutor measure.

	[David Bernstein, April 12, 2005 at 12:55am] Trackbacks 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 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 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 have often willingly used outrageously bad expert tesimony when they thought it would help get them a conviction suggests that one might as well believe in the tooth fairy. UPDATE: Several readers have pointed out that criminal defendants, too, can take advantage of the leniency of the Georgia law, as by bringing in quack experts supporting various "diminished responsibility" theories. It's certainly true that defendants, especially wealthy defendants, can bring in bad expert testimony, as the O.J. trial showed. But the vast majority of criminal defendants don't have a prayer of winning a diminished responsility case, and, in any event, most defendants, unlike prosecutors, don't have the resources to bring in a parade of charlatans and hired guns. So I'll stick to my view that this is a very unjust, pro-prosecutor measure.