I have previously written about the disparity in standards for admissibility of scientific evidence in criminal and civil cases in Georgia. I have become more active in arguing this issue, and I have just filed an application for interlocutory appeal addressing the issue. The crux of the argument is below:
WHETHER THE TRIAL COURT PROPERLY DENIED PETITIONER'S CHALLENGE TO THE CONSTITUTIONALITY OF O.C.G.A. § 24-7-707.
This case involves scientific evidence in the form of observations and based upon the horizontal gaze nystagmus, test and, if this Court agrees that it is scientific evidence, the Romberg test. The Defendant raised by written motion and in oral argument before the trial court a constitutional challenge to O.C.G.A. § 24-7-707. The Defendant challenged the constitutionality of O.C.G.A. § 24-7-707 on the grounds that it violated the Equal Protection Clause of the United States Constitution and the Georgia Constitution. There is simply no logical and rational basis for providing the defending in a criminal case with less protection against junk science than a civil defendant receives. Why does a civil defendant facing a claim for damages arising from his alleged act of driving while under the influence of alcohol receive greater protection from evidence that has not been rigorously studied or validated than a criminal defendant facing imprisonment for the same act? There is simply no rational basis for the distinction in our law.
Under the current evidentiary scheme, a person could have concurrent civil and criminal cases pending at the same time, based upon the allegedly negligent act, and receive more protection against the use of junk science in the civil case than he would in the criminal case. It simply does not make sense.
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