A Little Bit of Law From Georgia

David Bernstein over at the Volokh Conspiracy has an interesting post about a new law in Georgia. For a basic understanding, the issue is the standard of admissibility to be applied to expert testimony being offered in criminal and civil cases. Georgia's legislature expressly approves the use of the so-called Daubert trilogy by state courts in deciding the admissibility of expert testimony in civil cases. As Bernstein notes, this is a good start, since Daubert imposed a more restrictive standard on the types of evidence that could be offered by experts in civil litigation. But Bernstein notes the following problem when he turns to the criminal side...

However, the law also requires that even the junkiest of junk scienc be admissible in criminal cases: "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." This test--that any loosely qualified expert can say virtually anything he wants in court, with no screening beyond his c.v.--is what junk science foes have disparagingly called the "let-it-all-in philosophy."

Bernstein follows that up by noting why this is a problem -- defense attorneys, particularly public defenders, often lack the resources to challenge prosecution experts or hire their own experts. Since the judge is no longer allowed to serve as a gatekeeper to determine whether such evidence should be admitted, opinions will be admitted that should (logically) be excluded.

I note this post by Bernstein for a couple of reasons. First, it runs counter to what you see in popular mediums. If you are a longtime devotee of TV shows like Law and Order, you may think it's usually the defense that's trying to get some cockamamie scientifict theory admitted in court. That may well happen under this new law -- there is the issue of unintended consequences -- but it's more likely that we'll see a lot of cases where prosecutors use this law to their benefit.

The second note is that this is another case where the blogosphere is valuable. I don't know how many MSM news outlets are covering this story or issue, or have discussed it in sufficient detail. To be fair, the issue is not one that will spark a lot of mainstream interest, and it's not one that falls within the expertise of many reporters. But it is a situation where the public should learn about it, and having a blogger with a particular expertise (like Bernstein) come forward and discuss it builds a better public discourse.