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In the vast majority of criminal cases, criminal defendants simply rely upon cross-examination, inadequacies of the State’s evidence, reasonable doubt, and the presumption of innocence to challenge the State’s case. Most Defendant’s do not and cannot introduce their own scientific tests. They simply lack the resources (money) and the State does not readily provide criminal defendants with money to fund such experts. So, it is vitally important that the Georgia courts properly protect criminal defendants against unproven scientific evidence.

Below is portion of another brief that I have been working on with regard to the disparity in standards for the admissibility of scientific evidence in criminal and civil cases in Georgia. One of the main issues that you must be prepared for in arguing this issue is how to deal with Mason v. Home Depot, which is discussed here:

Because the Petitioner’s constitutional challenge to O.C.G.A. § 24-7-707 is the basis for jurisdiction over this appeal and the Respondent has relied solely upon Mason v. Home Depot U.S.A., Inc., 283 Ga. 271, 284, 658 S.E.2d 603, 613 (2008), as the proposed basis rejecting the Petitioner’s challenges to O.C.G.A. § 24-7-707, it should be noted how little application that Mason has to the issues here. First, the Petitioner in this case raised a challenge to O.C.G.A. § 24-7-707 on the basis that it unconstitutionally usurps judicial power. Unlike O.C.G.A. § 24-9-67.1(f), which was addressed in Mason, the language of O.C.G.A. § 24-7-707 is a clear encroachment upon the authority of the courts to act as a gatekeeper in assessing the reliability of scientific evidence. In Mason, the plaintiffs challenged the constitutionality of subsection (f) on similar grounds. However, the language of O.C.G.A. § 24-9-67.1 (f) is vastly different from the language of O.C.G.A. § 24-7-707, and a the challenge to the O.C.G.A. § 24-9-671(f) certainly should not and does not control the analysis of whether O.C.G.A. § 24-7-707 is an unconstitutional usurpation of the judicial power. O.C.G.A. § 24-9-67.1 (f)

contains two sentences the first of which is an expression of intent 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.” The second sentence suggests that Georgia courts, “in interpreting and applying this Code section, … may draw from the opinions of the United States Supreme Court in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 [ , 113 S.Ct. 2786, 125 L.Ed.2d 469 ] (1993); General Electric Co. v. Joiner, 522 U.S. 136 [ 118 S.Ct. 512, 139 L.Ed.2d 508] (1997); Kumho Tire Co. Ltd. v. Carmichael, 526 U.S. 137 [ , 119 S.Ct. 1167, 143 L.Ed.2d 238 ] (1999); and other cases in federal courts applying the standards announced by the United States Supreme Court in these cases.”

Mason v. Home Depot U.S.A., Inc., 283 Ga. 271, 276, 658 S.E.2d 603, 608 (2008). In Mason, this Court observed that subsection (f) of O.C.G.A. § 24-9-67.1 was “permissive suggestion” that “merely state[s] a principle of law regularly employed by Georgia courts.” Id.

Compare O.C.G.A. § 24-9-67.1 to the mandatory language of O.C.G.A. § 24-707, which states: “In criminal proceedings, 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.” O.C.G.A. § 24-7-707 contains directives that are mandatory in nature. This Court should not rely upon Mason, as the Respondent has suggested, to determine whether O.C.G.A. § 24-7-707 can withstand scrutiny as to whether this statute is an unconstitutional usurpation of judicial authority. This is a constitutional issue is one over which there is substantial uncertainty and the development of precedence is desirable.

The Respondent has also relied upon Mason as controlling authority as to the Petitioner’s equal protection challenge. However, in Mason this Honorable Court did not address whether a criminal defendant charged with a DUI is similarly situated to, for example, a civil defendant facing a claim for damages arising from an accident in which the civil defendant was alleged to be DUI. In Mason, this Court addressed the plaintiffs’ attempt to rely upon the less stringent standard of what was then O.C.G.A. § 24-9-67 (now O.C.G.A. § 24-7-707) to gain the admission of expert testimony that the trial court had deemed unreliable. The suggestion that Mason controls the issue of standing to assert an equal protection challenge by a criminal defendant challenging the same evidence that would face more stringent scrutiny in a civil case was certainly not ruled upon.

The basis for the Petitioner’s equal protection challenge, which was not squarely presented or addressed by the plaintiffs seeking the admission of evidence that was deemed unreliable in their claim for damages in Mason, can hardly be better stated than as expressed in the Dissent in Mason:

There is no rational reason for the Legislature to limit solely to civil cases the use of expert opinion testimony that is the product of reliable principles and methods applied reliably to the facts of a case. By creating different standards of admissibility based only on the nature of the litigation, OCGA § 24–9–67.1 creates the untenable situation where the same evidence proffered by the same expert witness for the same purpose may be allowed in criminal trials but excluded in civil trials. That expert’s opinion testimony should be admitted or excluded for the same reasons in every case tried in our courts, without regard to whether the case is civil or criminal. There is, and can be, no legitimate, rational reason to distinguish between the nature of the litigation when it comes to the admissibility of the same testimony by the same expert witness. It is an affront to our concept of justice to deem reliable, qualified expert opinion testimony to be more important in civil cases than in criminal cases. I would therefore hold that OCGA § 24–9–67.1 violates the equal protection clauses of the United States and Georgia Constitutions.

Mason v. Home Depot U.S.A., Inc., 283 Ga. 271, 284, 658 S.E.2d 603, 613 (2008) (Hunstein, J., dissenting) (emphasis added).

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Ben Sessions, Attorney at Sessions Law Group
Ben Sessions

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