Hb 478: Amendments to Rules of Evidence Regarding Expert Testimony in Criminal Cases

• Jurisdiction: Georgia,United States
• Citation: Vol. 39 No. 1
• Publication year: 2022
• topic: Criminal Law

HB 478: Amendments to Rules of Evidence Regarding Expert Testimony in Criminal Cases

Bentley Spain

bspain1@student.gsu.edu

Ronnie Thompson

jthompson165@student.gsu.edu

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EVIDENCE

Opinions and Expert Testimony: Amend Chapter 7 of Title 24 of the Official Code of Georgia Annotated, Relating to Opinions and Expert Testimony, so as to Change the Rules of Evidence Regarding Expert Testimony in Criminal Cases; Provide for Related Matters; Provide for an Effective Date and Applicability; Repeal Conflicting Laws; and for Other Purposes

Code Sections: O.C.G.A. §§ 24-7-702 (amended); 24-7-707 (repealed)

Bill Number: HB 478

Act Number: 743

Georgia Laws: 2022 Ga. Laws 201

Effective Date: July 1, 2022

Summary: The Act revises the Georgia Evidence Code to enhance the evidentiary standard for admitting expert testimony in criminal cases. Like in civil cases, expert testimony in criminal cases now must satisfy the Daubert standard for admission of scientific, technical, and other specialized evidence.

History

Minor revisions can result in major changes. This aphorism proves true with House Bill (HB) 478. Now law, HB 478—in simply crossing out a single word—ensures that Georgia is no longer the only state with differing standards for admission of expert testimony in civil and criminal cases.¹ Georgia law formerly applied a more lenient admissibility standard in criminal cases, a reality that confounded HB

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478 sponsor, Representative Bonnie Rich (R-97th).² To Representative Rich, it made no sense that cases involving one's life and liberty—where shaky scientific evidence could prove especially consequential—faced a less stringent standard than that which applied to controversies over monetary damages.³ Representative Rich introduced HB 478 to resolve this very dichotomy and achieve uniformity in civil and criminal cases.⁴

A complex history of common and statutory law underpinned Georgia's differing standards for civil and criminal cases.⁵ Much of this history traces back to Harper v. State.⁶ In Harper, the Supreme Court of Georgia devised an admissibility standard applicable to both civil and criminal cases.⁷ The standard allowed for admission of expert testimony and scientific evidence so long as "the procedure or technique in question has reached a scientific stage of verifiable certainty."⁸ In the decades following Harper, courts and practitioners struggled to pin down what exactly constituted a stage of verifiable scientific certainty.⁹ Semantics aside, the Harper standard, in practice, allowed practically all expert testimony to be admitted.¹⁰

Now repealed by HB 478, former Code section 24-7-707 reinforced Harper's lenient standard in criminal cases.¹¹ Indeed, the Code section provided that expert opinions on scientific questions "shall always be

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admissible" in criminal proceedings.¹² Although this language seems more lenient than the Harper standard given its absolute nature, Georgia courts generally read the Harper standard and the statutory language together as part of their lax approach to expert testimony in criminal cases.¹³

Tort reform in 2005 rendered moot any debates over the meaning of Harper in the civil arena.¹⁴ Business interests successfully persuaded the Georgia General Assembly to eliminate Harper's applicability to civil cases.¹⁵ Harper was replaced by Daubert, a heightened standard that only permits scientific evidence which rests on a reliable foundation.¹⁶ Compared to the Harper standard, Daubert diminishes businesses' liability exposure to tort claims grounded in shaky scientific evidence.¹⁷ Tort reform notwithstanding, Harper remained good law in criminal cases, creating the schism the Act ultimately resolved.¹⁸ In 2005, prosecutors opposed any efforts to apply Daubert in criminal cases, and the Georgia General Assembly complied.¹⁹

Times have changed. Prosecutors no longer oppose adopting Daubert in criminal proceedings.²⁰ In fact, prosecutors and defense attorneys rallied together in support of HB 478.²¹ Their unity may explain why after nearly two decades of standing alone, Georgia has finally joined the forty-nine other states in following a single admissibility standard for expert testimony in civil and criminal cases.²²

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Bill Tracking of HB 478

Consideration and Passage by the House

Representative Bonnie Rich (R-97th) sponsored HB 478 in the House with Representative James Burchett (R-176th), Representative Scott Holcomb (D-81st), Representative Mandi Ballinger (R-23rd), Representative Micah Gravley (R-67th), and Representative Mitchell Scoggins (R-14th) cosponsoring.²³ The bill was placed in the House hopper on February 16, 2021, and read for the first time on February 17, 2021.²⁴ HB 478 was read in the House for the second time on February 18, 2021, and referred to the House Judiciary Non-Civil Committee that same day.²⁵ The bill was not favorably reported by the Committee until January 27, 2022, when the Committee did so by substitute.²⁶ The substitute contained two amendments to the bill. First, the Committee changed the effective date of the bill from 2021 to 2022.²⁷ Second, the bill revised Code section (b) of 24-7-702 to make it align exactly with Federal Rule of Evidence 702 and the Daubert standard.²⁸ The bill, as substituted by the Committee, was read for the third time and debated on the House floor on February 2, 2022.²⁹ Representative Rich made a floor speech in support of the bill.³⁰ The House passed the substituted bill without amendment by a vote of 138 to 25 on February 2, 2022.³¹

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Consideration and Passage by the Senate

Senator Brian Strickland (R-17th) sponsored HB 478 in the Senate.³² The Senate read the bill for the first time and referred it to the Senate Judiciary Committee on February 3, 2022.³³ The Committee favorably reported the bill on March 25, 2022, and it was read in the Senate for the second time on March 28, 2022.³⁴ On March 30, 2022, the bill was read for the third time in the Senate and was debated on the floor.³⁵ The Senate passed the bill by a vote of 51 to 2 on March 30, 2022.³⁶ The House sent the bill to Governor Brian Kemp (R) on April 6, 2022, and the Governor signed the bill into law on May 2, 2022, as Act 743.³⁷ The effective date of the Act is July 1, 2022.³⁸

The Act

The Act amends Article 702 of Chapter 7 of Title 24 of the Official Code of Georgia Annotated "to change the rules of evidence regarding expert testimony in criminal cases."³⁹ The Act also repeals Article 707 of Chapter 7 of Title 24 of the Official Code of Georgia Annotated.⁴⁰ The Act's overall purpose is to create "parity" between the standards in civil and criminal cases regarding the admissibility of scientific expert testimony in Georgia.⁴¹

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Section 1

Section 1 revises subsections (a), (b), (d), (e), and (f) of the Official Code of Georgia Annotated section 24-7-702, "relating to expert opinion testimony in civil actions, medical experts, pretrial hearings, and precedential value of federal law."⁴² The Act revises subsection (a) of Code section 24-7-702 by removing the word "civil" to make clear that the section and its recitation of the Daubert standard applies to "all proceedings[,]" both civil and criminal, in Georgia.⁴³ The language of subsection (b)(1)-(4) now directly tracks with Federal Rule of Evidence 702, which was adopted "in response" to the Daubert decision.⁴⁴

Subsection (d) now clarifies that the time limitation for pretrial hearings regarding the qualification of an expert under subsections (a) and (b) of this Code section applies only in civil cases.⁴⁵ Subsection (e) clarifies that the requirements of Code section 24-7-702 for providing expert testimony by affidavit apply only in civil proceedings.⁴⁶ Finally, subsection (f) removes the word "civil" to clarify that the subsection applies in "all proceedings."⁴⁷

Section 2

Section 2 of the Act repeals Code section 24-7-707, which related to expert testimony in criminal proceedings specifically.⁴⁸ The repealed Code section made expert opinions universally acceptable in criminal cases, providing that their testimony on scientific questions "shall always be admissible."⁴⁹

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Analysis

Georgia stood alone as the only state with differing admissibility standards for expert testimony in civil and criminal cases.⁵⁰ This distinction no longer holds.⁵¹ Veiled criticism from the Supreme Court of Georgia and concerns regarding wrongful convictions ultimately propelled lawmakers into action.⁵²

A Warning Shot

Court decisions often spark legislative action.⁵³ Through their opinions, judges can alert legislators to an existing statute's constitutional vulnerabilities.⁵⁴ Such warnings can prove especially impactful in legislatures with few practicing lawyers.⁵⁵ This dynamic manifested with HB 478, where a single opinion from the Supreme Court of Georgia prompted the Act's introduction and eventual passage.⁵⁶

Until 2020, the Supreme Court of Georgia expressed no concerns regarding the mismatch in evidentiary standards between civil and criminal cases.⁵⁷ In 2008, the court even upheld the scheme against a constitutional challenge in Mason v. Home Depot U.S.A.⁵⁸ In that case, the plaintiffs argued that the more stringent admissibility standard they faced as civil litigants disadvantaged them compared to parties in criminal cases.⁵⁹ The court rejected their equal protection challenge, declaring that civil litigants and parties to criminal cases are not

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similarly situated for purposes of equal protection.⁶⁰ In so holding, the court foreclosed any viable equal protection claim, which requires plaintiffs to show a difference in treatment from similarly situated individuals.⁶¹

The court's tenor changed twelve years later in 2020.⁶² In Woods v. State, a criminal defendant brought an equal protection challenge similar to the one brought in Mason.⁶³ Though the court transferred the case on jurisdictional grounds, Justice Nahmias fired a not-so-subtle warning shot...