On Wednesday, March 30, 2022, the Georgia General Assembly passed HB 478 to extend the Daubert evidentiary standard for expert testimony in Georgia to criminal prosecutions. The move to adopt Daubert for criminal matters was motivated, in part, by the need for insightful discussion into the validity of expert testimony in criminal cases and the need for consistency across civil and criminal proceedings in Georgia.[1] Undoubtedly, the passage of HB 478 is timely and important.

The benefits of this bill would upgrade Georgia’s criminal jurisprudence and make the State’s expert witness standards consistent. The Daubert standard (embodied in O.C.G.A. § 24-7-702) will impose a more rigorous analysis of scientific evidence than the previously-used Harper standard (embodied in former O.C.G.A. § 24-7-707).  When evaluating expert testimony, it is important that an expert opinion, particularly in criminal prosecutions, be rooted in scientifically valid principles.   When an expert provides an opinion before a jury in criminal cases, the expert testimony will be required to be rooted in scientifically valid principles, and a trial judge will have to ensure that those principles are properly applied to – fit – the facts at issue.  Daubert’s flexible approach would allow “trial judges to exercise great discretion in deciding whether to admit or exclude expert testimony.” [2]

In exercising their discretion, trial courts are directed by the statute to draw from opinions of federal court cases that have applied Federal Rule of Evidence 702. O.C.G.A. § 24-7-702(f)[3]   Interestingly enough, federal courts have always had a single rule for expert testimony in both civil and criminal cases. With the immense amount of federal authority in criminal matters applying Daubert and Federal Rule 702, Georgia trial courts will have a wealth of authority (almost 30 years) to draw from.

The Daubert standard was established in the case of Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579 (1993), holding that the longstanding expert testimony standard in Frye v. United States, 293 F. 1013 (D.C. Cir. 1923) was superseded by Rule 702 of the Federal Rules of Evidence.[4] Frye, a single-factor test, required expert opinions to be “generally accepted” as reliable in the relevant scientific community.[5] However, the “generally accepted” requirement often produced criticism, as critics alleged the standard was “inflexible” and “exacted too high a cost and often barred the admission of reliable evidence.” [6]

In response to this criticism, the Supreme Court in Daubert decided that trial judges should act as “gatekeepers” to ensure expert opinions are rooted in scientifically valid principles and that those principles are properly applied to the facts at issue.[7]

In Georgia, after adhering to the Frye Standard for many years, the Supreme Court of Georgia adopted a new standard to govern the admissibility of expert testimony in the case of Harper v. State.[8] The Court adopted the Harper “verifiable certainty” standard, which assigned an instruction that trial judges would serve as a “gatekeeper” to determine the admissibility of novel scientific evidence, while retaining significant discretion to consider evidence submitted by the parties.[9]  Harper became the standard for both civil and criminal cases until 2005. In that year, the Georgia General Assembly enacted O.C.G.A. § 24-7-702, which adopted the federal standard in Federal Rule of Evidence 702, but only in civil cases ^__ not criminal prosecutions.[10]

By limiting § 24-7-702 to civil cases, admissibility of expert opinions in criminal cases was governed by O.C.G.A. § 24-7-707 and the Harper admissibility standard, which produced criticism.[11] As one commentator stated, when analyzing § 707, “when a person’s life is at stake, unreliable ‘scientific’ evidence was and shall always be admissible; when money is the issue, the evidence has to be proved as reliably scientific.”[12]

Georgia is joining 26 States and the District of Columbia as states that apply Daubert to criminal proceedings.[13]  Citizens (cloaked with the presumption of innocence) charged with alleged crimes will now have the same evidentiary protections as civil litigants (whose liberty is not at stake).

[1] Rosie Manins, 3 Bills to Watch As Ga. Lawmakers Race to Finish Session, Law360, March 16, 2022.

[2] Miranda S. Bidinger, Faulty Forensics: Bolstering Judicial Gatekeeping in Georgia Courts, 54 GLR 1035 (2020).

[3] “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.”

[4] Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579, 589 (1993), aff’d, 951 F.2d 1128 (9th Cir. 1991), superseded, Fed. R. Evid. 702, as recognized in United States v. Parra, 402 F.3d 752 (7th Cir. 2005).

[5] Frye v. United States, 293 F. 1013 (D.C. Cir. 1923).

[6] JRank Articles, http://law.jrank.org/pages/2006/Scientific-Evidence-Frye-v-United States.html (last visited April 13, 2022).

[7] Id. at 579.

[8] Harper v. State, 249 Ga. 519, 292 S.E.2d 389 (1982).

[9] Id. at 395.

[10] O.C.G.A. § 24-7-702.

[11] Equal Protection challenges were rejected in Woods v. State, 361 Ga. App. 844, 864 S.E.2d 194 (2021) and Mason v. Home Depot U.S.A., 283 Ga. 271, 273, 658 S.E.2d 603 (2008).  The courts reasoned, “parties to civil cases are not similarly situated to those engaged in criminal prosecutions.”  283 Ga. at 274; 361 Ga. App. at 847.

[12] Loudon-Brown, Mark and Fabricant, M. Chris, Georgia Can Do Better Than Offer Uniquely Unequal Expert Evidence Standards, Daily Report, January 27, 2021.

[13] J.L Hill, The States of Daubert after Florida, Expert Witness News, July 9, 2019 (“Alaska, Alabama, Arkansas, Arizona, Delaware, District of Columbia, Kentucky, Idaho, Iowa, Louisiana, Michigan, Mississippi, Missouri, Nebraska, New Hampshire, North Carolina, Ohio, Oklahoma, Oregon, Rhode Island, South Dakota, Tennessee, Texas, Vermont, Washington, Wisconsin, and Wyoming already apply Daubert to criminal proceedings”).