Saturday, February 19, 2005

Daubert in Georgia: The Other Shoe Drops

On 2/1/05, we posted on "tort reform" legislation approved by the Georgia Senate. From our learned Georgia correspondent, Charles Beans, we now learn that the legislation has been passed by Georgia's House of Representatives as well, and signed into law by Governor Perdue. The full text of the bill as finally enacted is available here.

Among other measures, the legislation now places Georgia squarely in the ranks of the Daubert states, for civil cases. In civil cases, the bill emphasizes Georgia's insistence that its courts "not be viewed as open to expert evidence that would not be admissible in other states."

Criminal cases, however, are another matter. The bill provides: "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." (The emphasis is ours.)

There has long been a de facto dichotomy in federal court between Daubert's application in criminal cases (fairly licentious) and civil ones (more strict). Perhaps Georgia is to be applauded for its candor in making the difference in standards explicit and official, though some might feel that the distinction should operate in the opposite direction.

We will await with interest the first case in which the collateral estoppel issue arises. That issue would be whether the verdict from a criminal case estops the defendant (or is even admissible) in a subsequent civil case, if the criminal verdict was dependent on expert proof.


C.E. Petit writes ...

Of course, this leaves rather unclear the standard of admissibility to be applied in a quasicriminal proceeding, such as a "civil forfeiture" hearing, an immigration-related matter, or a "child-kidnapping" hearing under the Hague Convention (whose full and proper name I can't recall at the moment; I don't mean the Hague Convention on the Law of War!).

5:15 PM  

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Fed. R. Evid. 702: If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise, if (1) the testimony is based upon sufficient facts or data, (2) the testimony is the product of reliable principles and methods, and (3) the witness has applied the principles and methods reliably to the facts of the case.