IN THE PROFESSION to allow certain favored proponents ’ expert testimony to reach the jury .
Some scholars argue that , “ trial courts frequently admit testimony from the government ’ s experts and exclude the defendant ’ s proposed expert testimony .” 5 According to the National Registry of Exonerations , over 36 % of exonerations are wrongful convictions that occur when an affirmative defense is rejected . 6 In both Georgia and federal courts , prosecutors often have an upper hand in being able to use the same law enforcement officer to provide both expert and lay opinion testimony in a single case .
Clearly the support of the defense bar and defendant-centric organizations like the Innocence Project derives from a belief that the changes will encourage judges to take a more active role in policing the testimony of prosecution experts . However , does it also represent a tacit acknowledgment of the belief that judges will always view defense experts with a more skeptical eye than experts for the prosecution ?
Since courts are now called to decide whether the , “ expert ’ s opinion reflects a reliable application of the principles and methods of the facts to the case ,” one can easily imagine a battle of experts in which a judge , without taking the controversial step of rejecting the science underlying a defense expert ’ s conclusion , simply rejects the conclusion ( and thus the expert ’ s testimony ) as an unreliable application of principles and methods . Could this change create a situation where more prosecution experts present their opinion to the jury unchallenged by a defense expert ?
Likely , defense lawyers are so used to having their experts ’ testimony rejected or curtailed - especially when presenting novel or controversial theories - that any increase in scrutiny for prosecution experts seems like a move in the right direction . It seems unlikely , however , that the amendments will aid defense attorneys in presenting contested expert testimony to a jury .
Ultimately , as the amendments make clear , an expert witness ’ s opinion is admissible if the judge finds that it is more likely than not that the opinion satisfies all of Rule 702 ’ s requirements . Only time will tell what effects the amendments to Rule 702 will have .
__________________________________
1Anjelica Cappellino , Amendments to Rule 702 Signal Change for Expert Testimony Admissibility , EXPERT INST ., https :// www . expertinstitute . com / resources / insights / amendments-to-rule-702-signal-change-forexpert-testimony-admissibility / ( last updated June 16 , 2022 ). 2Sprynczynatyk v . Gen . Motors Corp ., 771 F . 2d 1112 , 1121 ( 8th Cir . 1985 ) ( citing Frye v . United States , 293 F . 1012 , 1014 ( D . C . Cir . 1923 )). 3Jeffrey Mongiello & Zachary Taylor , One Step Closer to a Revised Standard for the Admissibility of Expert Testimony Under Rule 702 , NAT ’ L L . REV . ( June 14 , 2022 ), https :// www . natlawreview . com / article / one-step-closer-to-revised-standard-admissibilityexpert-testimony-under-rule-702 ; Memorandum from Daniel Capra & Liesa Richter to Adivsory Comm . on Evidence Rules ( Apr . 1 , 2022 ) at 4 , in ADVISORY COMM . ON EVIDENCE RULES , MAY 2022 AGENDA BOOK 128 ( May 6 , 2022 ), available at https :// www . uscourts . gov / sites / default / files / evidence _ agenda _ book _ may _ 6 _ 2022 . pdf . 4Michelle Bufano et al ., Expert Witness Testimony Rule Changes Would Serve Justice , BLOOMBERG L .
( Jan . 5 , 2022 , 4:00 AM ), https :// news . bloomberglaw . com / us-law-week / expert-witness-testimony-rulechanges-would-serve-justice ; KATELAND JACKSON & ANDREW TASK , LAWS . FOR CIVIL JUST ., FEDERAL RULE OF EVIDENCE 702 : A ONE-YEAR REVIEW AND STUDY OF DECISIONS IN 2020 ( Sept . 30 , 2021 ), available at https :// www . lfcj . com / uploads / 1 / 1 / 2 / 0 / 112061707 / lcj _ study _ of _ rule _ 702 _ decisions _ from _ 2020 _ -- _ sept _ 30 _ 2021 . pdf . 5Wes Porter , Repeating , Yet Evading Review : Admitting Reliable Expert Testimony in Criminal Cases Still Depends Upon Who Is Asking , 36 RUTGERS L . REC . 48 , 49 ( 2009 ). 6James Acker & Sishi Wu , “ I Did It , But … I Didn ’ t ”: When Rejected Affirmative Defenses Produce Wrongful Convictions , 98 NEB . L . REV . 578 , 581 – 82 ( 2020 ).
Connecting Lawyers Who Share Offices .
A platform for lawyers renting LawSpace to other lawyers and law firms across the United States . Searching for LawSpace or Subleasing office space to lawyers ? Email us for a promo code at Service @ lawspacematch . com .
www . atlantabar . org THE ATLANTA LAWYER 13