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Publication Date

12-2007

Document Type

Survey Article

Abstract

The most significant news during the current survey period continued to be the judiciary's efforts to come to terms with the "tort reform" legislation enacted by the General Assembly in 2005, particularly Official Code of Georgia Annotated ("O.C.G.A.") section 24-9-67.1, which purports to adopt, more or less, the United States Supreme Court's decision in Daubert v. Merrell Dow Pharmaceuticals, Inc.

As discussed below, it is beginning to appear that Georgia courts will follow a somewhat different course than that followed by federal courts in their interpretation of Daubert and Daubert's codification in Federal Rule of Evidence 702. As discussed in many prior surveys, Georgia continues to creep, both through legislative enactments and State Bar of Georgia initiatives, toward the adoption of the Federal Rules of Evidence. As this Article was being written, the State Bar of Georgia was once again pushing the General Assembly to adopt a new evidence code that would be based on the Federal Rules of Evidence. The current version of the Georgia Rules of Evidence can be found at the State Bar's website. Off and on for almost twenty years, the State Bar has unsuccessfully advocated the adoption of a new evidence code. It seems that while most trial lawyers may generally favor the adoption of a new evidence code, all lawyers can find a particular provision in the proposed code that is unpalatable. For example, prosecutors-who purportedly stopped the legislature from extending O.C.G.A. section 24-9-67. to criminal cases-likely will oppose any further attempts to subject their expert witnesses to a Daubert or Daubert-like standard, which is what the proposed code will do.

Nevertheless, Georgia evidence law more closely resembles the Federal Rules of Evidence than it did when the State Bar first proposed the adoption of the Federal Rules of Evidence. For example, in 2005 the General Assembly enacted new O.C.G.A. section 24-9-81, which is nearly identical to Federal Rules of Evidence 607, new O.C.G.A. section 24-9-84, which is based on Federal Rules of Evidence 608, and O.C.G.A. section 24-9-84.1, which mostly adopts Federal Rule of Evidence 609. Also, as noted Daubert has come to Georgia, if not quite the same Daubert seen in federal court. Incidentally, this survey Article, in its discussion of Georgia evidence law and decisions, has always tracked the organizational format of the Federal Rules of Evidence.

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