And Moscow Girls Make Me Sing and Shout
Does "always" mean always in Georgia?
The answer, apparently, is sometimes, but not at all times. Sometimes "always" just means sometimes. Lawyers are always noticing this kind of distinction, except when they don't. And we hadn't, though now we do.
Maybe we had better explain. Along with Prof. Bernstein and others, we had drawn attention to recent Georgia legislation on medical malpractice that introduced an inconsistency into Georgia's law of expert evidence. The Georgia legislature adopted the Daubert standard for civil cases, but the same enactment provided that in criminal cases, "the opinions of experts on any question of science, skill, trade, or like questions shall always be admissible." (Our emphasis.)
This is, to be sure, a double standard. But apparently the language just quoted may not signal that psychics and palm readers may now give expert testimony without further ado in Georgia criminal prosecutions, as might have been feared. (See our posts of 2/19/05 and 4/12/05.) According to Jonathan B. Wilson, the language at issue simply represents a re-enactment, as to criminal proceedings, of the previous language in Georgia's evidence code that formerly governed all expert testimony. In other words, it was intended to preserve Georgia's former evidentiary standard in the criminal context, limiting the adoption of Daubert to civil proceedings.
And Mr. Wilson ought to know. Unlike us, he is actually licensed to practice law in Georgia. Our thanks to him, and to Walter Olson, for drawing this point to our attention. We are always (er, sometimes) grateful to have our errors corrected -- as Mr. Wilson presumably will not hesitate to do, from his new perch at Point of Law.
The answer, apparently, is sometimes, but not at all times. Sometimes "always" just means sometimes. Lawyers are always noticing this kind of distinction, except when they don't. And we hadn't, though now we do.
Maybe we had better explain. Along with Prof. Bernstein and others, we had drawn attention to recent Georgia legislation on medical malpractice that introduced an inconsistency into Georgia's law of expert evidence. The Georgia legislature adopted the Daubert standard for civil cases, but the same enactment provided that in criminal cases, "the opinions of experts on any question of science, skill, trade, or like questions shall always be admissible." (Our emphasis.)
This is, to be sure, a double standard. But apparently the language just quoted may not signal that psychics and palm readers may now give expert testimony without further ado in Georgia criminal prosecutions, as might have been feared. (See our posts of 2/19/05 and 4/12/05.) According to Jonathan B. Wilson, the language at issue simply represents a re-enactment, as to criminal proceedings, of the previous language in Georgia's evidence code that formerly governed all expert testimony. In other words, it was intended to preserve Georgia's former evidentiary standard in the criminal context, limiting the adoption of Daubert to civil proceedings.
And Mr. Wilson ought to know. Unlike us, he is actually licensed to practice law in Georgia. Our thanks to him, and to Walter Olson, for drawing this point to our attention. We are always (er, sometimes) grateful to have our errors corrected -- as Mr. Wilson presumably will not hesitate to do, from his new perch at Point of Law.
1 Comments:
I too am licensed to practice and regularly practice in Georgia. The case law - pre and post "tort reform" - establishes that the emphasis of the word "always" in the sentence is on the admissibility of expert opinions, not on the opinions of all experts. In other words, the courts have _always_ held that an expert must still be competent and qualified and, since at least Harper v. State, have held that the evidence must meet minimum standards for reliability and relevance. The separation of OCGA 24-9-67 into 2 statutes, 1 governing criminal cases and 1 governing civil cases, doubtfully changes this state of affairs. Rather, as under the old law, the Court still has the discretion to exclude expert witness testimony for reasons of competency, reliability or relevance. The statute simply means that there is no hearsay objection to an expert witness opinion.
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