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.
(Code 1981, §24-7-707, enacted by Ga. L. 2011, p. 99, § 2/HB 24.)
Cross references.- Discovery of facts known and opinions held by expert witnesses, § 9-11-26(b)(4).
Admissibility of medical tests and blood tests in proceedings to determine paternity, § 19-7-46.
DNA sampling, collection, and analysis, § 35-3-160.
Law reviews.- For article analyzing Georgia business entries provisions, see 4 Mercer L. Rev. 313 (1953). For article, "The Skeleton in the Closet: The Battered Woman Syndrome, Self-Defense, and Expert Testimony," see 39 Mercer L. Rev. 545 (1988). For article, "Georgia's New Expert Witness Rule: Daubert and More," see 11 Ga. St. B.J. 16 (2005). For annual 11th Circuit survey of evidence law, see 56 Mercer L. Rev. 1273 (2005). For annual survey of evidence law, see 57 Mercer L. Rev. 187 (2005). For article, "Symposium on Evidence Reform: A Tale of Two Dauberts," see 47 Ga. L. Rev. 889 (2013). For annual survey on evidence law, see 70 Mercer L. Rev. 97 (2018). For note on the chiropractor as an expert witness, see 15 Mercer L. Rev. 431 (1964). For note on admissibility of expert psychological testimony in Georgia, see 4 Ga. St. U.L. Rev. 117 (1988). For note, "Exiting Twilight Zone: Changes in the Standard for Admissibility of Scientific Evidence in Georgia," see 10 Ga. St. U.L. Rev. 401 (1994). For note, "Kumho Tire Co. v. Carmichael: Daubert's Gatekeeping Method Expanded To Apply To All Expert Testimony," see 51 Mercer L. Rev. 1325 (2000).
JUDICIAL DECISIONSANALYSIS
General Consideration
Editor's notes.
- In light of the similarity of the statutory provisions, decisions under former Code 1863, § 3792, former Code 1873, § 3868, former Code 1882, § 3868, former Civil Code 1895, § 5287, former Penal Code 1895, § 1022, former Civil Code 1910, § 5876, former Penal Code 1910, § 1048, former Code 1933, § 38-1710, and former O.C.G.A. § 24-9-67 are included in the annotations for this Code section.
Status of witness as lay or expert goes not to admissibility, but credibility. McLelland v. State, 203 Ga. App. 93, 416 S.E.2d 340, cert. denied, 203 Ga. App. 907, 416 S.E.2d 340 (1992) (decided under former O.C.G.A. § 24-9-67).
Expert witness defined.
- An expert witness is one who through education, training, or experience has peculiar knowledge concerning some matter of science or skill to which the expert's testimony relates. Tifton Brick & Block Co. v. Meadow, 92 Ga. App. 328, 88 S.E.2d 569 (1955) (decided under former Code 1933, § 38-1710).
Construction.
- As the undisputed evidence showed that the mitochondrial DNA (mtDNA) analysis was based on sound scientific theory and produced reliable results when proper procedures were followed, and the "direct sequencing" method employed in the prosecution of the defendant for murder was the only technique accepted and used by those who conducted forensic mtDNA testing, as the technique produced reliable results upon which any practitioner could draw conclusions, the trial court did not err in allowing that evidence. Further, former O.C.G.A. § 24-9-67, and neither Daubert nor former O.C.G.A. § 24-9-67.1 (see now O.C.G.A. §§ 24-7-702 and24-7-703) controlled the admission of evidence in criminal proceedings. Vaughn v. State, 282 Ga. 99, 646 S.E.2d 212 (2007) (decided under former O.C.G.A. § 24-9-67).
Applicable only in criminal cases.
- Trial court was not required to consider a driver's expert affidavits under former O.C.G.A. § 24-9-67 in a products liability action because by the former statute's terms, the former statute applied to criminal cases, not civil cases. Udoinyion v. Michelin N. Am., Inc., 313 Ga. App. 248, 721 S.E.2d 190 (2011) (decided under former O.C.G.A. § 24-9-67).
Qualifications of expert witness are addressed to sound discretion of court. Atlantic Coast Line R.R. v. Sweat, 183 F.2d 27 (5th Cir. 1950) (decided under former Code 1933, § 38-1710).
Expert opinion must be helpful or necessary.
- Expert opinion, like lay opinion, is received only in instances when the opinion is helpful or necessary. Jones v. State, 232 Ga. 762, 208 S.E.2d 850 (1974) (decided under former Code 1933, § 38-1710).
Expert opinion is admissible on any matter of scientific or technical knowledge. Southern Ry. v. Wessinger, 32 Ga. App. 551, 124 S.E. 100, cert. denied, 32 Ga. App. 807 (1924) (decided under former Civil Code 1910, § 5876).
When based on facts supported by other witnesses and weight thereof is jury question.- Expert witnesses' opinions, on questions of science, skill, trade, or like questions, shall always be admissible provided the opinions are based on facts supported by other witnesses and the weight thereof is a question for the jury, to deal with as the jury sees fit, giving credence to the opinion or not. Atlantic Coast Line R.R. v. Sweat, 183 F.2d 27 (5th Cir. 1950) (decided under former Code 1933, § 38-1710).
When an expert testified that the expert's opinion was based upon the plaintiff's deposition testimony, the investigating officer's report, diagrams of the accident scene drafted by the plaintiff, photographs of the plaintiff's vehicle, and information regarding the speed of the plaintiff's truck from its governor, it was a jury question as to the weight which should be assigned the opinion, and not a question of admissibility. J.B. Hunt Transp., Inc. v. Brown, 236 Ga. App. 634, 512 S.E.2d 34 (1999), recons. denied, overruled on other grounds by Rockdale Hospital, LLC v. Evans, 306 Ga. 847, 834 S.E.2d 77 (2019) (decided under former O.C.G.A. § 24-9-67).
Expert's credibility is a jury question.
- Defendant's argument that the evidence was insufficient to support the defendant's conviction for possession by ingestion of methamphetamine because the testimony of the defendant's expert witness, a forensic toxicologist with a private clinical reference laboratory, called into question the validity of the state crime lab report, was rejected because the determination of the credibility of defendant's expert and the effect of the expert's testimony on the validity of the state crime lab report were for the jury. Poston v. State, 274 Ga. App. 117, 617 S.E.2d 150 (2005) (decided under former O.C.G.A. § 24-9-67).
Opinion proper when on matter within scope of expertise.
- Expert can express an opinion on a matter when the matter inquired about lies within the domain of the profession or calling which the expert pursues. Southern Ry. v. Cabe, 109 Ga. App. 432, 136 S.E.2d 438 (1964) (decided under former Code 1933, § 38-1710).
Opinions on matters outside scope of expertise.
- Opinion of any witness, not on any question of science, skill, trade, or like questions is inadmissible when all the facts are capable of being clearly detailed so that the jury may form correct conclusions therefrom. Whatley v. Henry, 65 Ga. App. 668, 16 S.E.2d 214 (1941) (decided under former Code 1933, § 38-1710).
While expert witnesses may give their opinions as to facts, principles, and rules involved in the science in which the witnesses are learned, the witnesses are not, as to questions lying out of the domain of the science, art, or trade in which the witnesses are experts, exempt from the restriction of the former statute, which required witnesses to state facts and not opinions. Southern Ry. v. Cabe, 109 Ga. App. 432, 136 S.E.2d 438 (1964) (decided under former Code 1933, § 38-1710).
Establishing variance from standard of care in legal malpractice cases.
- Plaintiff may not establish variance from standard of care in medical or legal malpractice cases without expert opinion testimony from which the jury could determine malpractice. This latter requirement is properly a prerequisite for the submission of a case to the jury. Savannah Valley Prod. Credit Ass'n v. Cheek, 248 Ga. 745, 285 S.E.2d 689 (1982) (decided under former O.C.G.A. § 24-9-67).
Matter within scope of lay knowledge or experience.
- Expert testimony is usually excluded when the question is whether the subject matter is within the scope of the ordinary layman's knowledge and experience. Jones v. State, 232 Ga. 762, 208 S.E.2d 850 (1974) (decided under former Code 1933, § 38-1710).
Expert opinion testimony on issues to be decided by the jury, even the ultimate issue, is admissible when the conclusion of the expert is one which jurors would not ordinarily be able to draw for themselves; that is, the conclusion is beyond the ken of the average layman. Smith v. State, 247 Ga. 612, 277 S.E.2d 678 (1981) (decided under former Code 1933, § 38-1710).
Expert may not testify as to the expert's opinion as to the existence vel non of a fact (in this case, whether a child had been abused sexually) unless the inference to be drawn from facts in evidence is beyond the ken of the jurors - that is, unless the jurors, for want of specialized knowledge, skill, or experience, are incapable of drawing - from facts in evidence - such an inference for themselves. Allison v. State, 256 Ga. 851, 353 S.E.2d 805 (1987) (decided under former O.C.G.A. § 24-9-67).
Advocate for the victims of sexual assault at a rape crisis center did not testify as to a rape trauma syndrome; rather, the advocate properly testified that there was no typical or common behavior among rape victims and that alleged victims of sexual assault might delay reporting such crimes. Stevenson v. State, 272 Ga. App. 335, 612 S.E.2d 521 (2005) (decided under former O.C.G.A. § 24-9-67).
Whether a seat belt engaged properly or an air bag deployed are not matters of science and issues requiring the expert testimony of an engineer or a metallurgist, but are matters of skill and experience. Owens v. GMC, 272 Ga. App. 842, 613 S.E.2d 651 (2005) (decided under former O.C.G.A. § 24-9-67).
Whether someone suffers greater injuries in a car wreck when a seat belt does not work to restrain the person and the air bag does not inflate between the person and the steering wheel, windshield, and mirror are not matters of science and issues requiring the expert testimony of trauma physician or engineer, but are matters of skill and experience. Owens v. GMC, 272 Ga. App. 842, 613 S.E.2d 651 (2005) (decided under former O.C.G.A. § 24-9-67).
Mixture of law and fact.
- It is only when the drawing of the inference requires a mixture of law and fact that the question is not a proper one for opinion evidence. Gage v. Tiffin Motor Homes, Inc., 153 Ga. App. 704, 266 S.E.2d 345 (1980) (decided under former Code 1933, § 38-1710); Security Life Ins. Co. v. Blitch, 155 Ga. App. 167, 270 S.E.2d 349 (1980);(decided under former Code 1933, § 38-1710).
Opinion of ultimate fact.
- Expert opinions are advisory and are not binding upon a fact-finding tribunal when such opinions are as broad in scope as the question of fact at issue, such as the cause of death or disability. American Mut. Liab. Ins. Co. v. King, 88 Ga. App. 176, 76 S.E.2d 81 (1953) (decided under former Code 1933, § 38-1710).
As a general rule, an expert witness is not allowed to express on the stand an opinion of ultimate fact or the very fact to be decided by the jury because to do so would invade the province of the jury. Jones v. State, 232 Ga. 762, 208 S.E.2d 850 (1974) (decided under former Code 1933, § 38-1710); Mitchell v. State, 154 Ga. App. 399, 268 S.E.2d 360 (1980);(decided under former Code 1933, § 38-1710).
An expert witness may testify as to the witness's opinion on the ultimate issue in the case without invading the province of the jury so long as the subject is an appropriate one for opinion evidence. King v. Browning, 246 Ga. 46, 268 S.E.2d 653 (1980) (decided under former Code 1933, § 38-1710); Security Life Ins. Co. v. Blitch, 155 Ga. App. 167, 270 S.E.2d 349 (1980);(decided under former Code 1933, § 38-1710).
If witness is asked witness's opinion as to a fact and not as to a mixed question of law and fact, the witness should be allowed to testify even though the witness's opinion is as to the ultimate issue for the jury. Security Life Ins. Co. v. Blitch, 155 Ga. App. 167, 270 S.E.2d 349 (1980) (decided under former Code 1933, § 38-1710).
If the cause and manner of an injury is the ultimate issue of fact to be determined by the jury, an expert may nevertheless give the expert's factual opinion but not the expert's legal conclusion on this issue for the benefit of the jury in their fact finding. Security Life Ins. Co. v. Blitch, 155 Ga. App. 167, 270 S.E.2d 349 (1980) (decided under former Code 1933, § 38-1710).
Expert may state the expert's opinion upon an ultimate fact, provided that all other requirements for admission of expert opinion were met. Baker v. State, 161 Ga. App. 670, 288 S.E.2d 280 (1982) (decided under former O.C.G.A. § 24-9-67).
Legal conclusions.
- Expert cannot act as a member of the jury; nor, while on the stand, can the expert transcend the functions of a witness and, under the guise of giving testimony, state a legal conclusion. Travelers Ins. Co. v. Thornton, 119 Ga. 455, 46 S.E. 678 (1904) (decided under former Civil Code 1895, § 5287); Herndon v. State, 178 Ga. 832, 174 S.E. 597 (1934); 295 U.S. 441, 55 S. Ct. 794, 79 L. Ed. 1530 (1935), appeal dismissed, Gage v. Tiffin Motor Homes, Inc., 153 Ga. App. 704, 266 S.E.2d 345 (1980) (decided under former Code 1933, § 38-1710); Mitchell v. State, 154 Ga. App. 399, 268 S.E.2d 360; 449 U.S. 1011, 101 S. Ct. 567, 66 L. Ed. 2d 469 (1980) (decided under former Code 1933, § 38-1710);cert. denied,(decided under former Code 1933, § 38-1710).
Whether a question calls for a legal conclusion or principally a fact which incidentally involves a legal word or phrase is within the sound discretion of the trial court. Gage v. Tiffin Motor Homes, Inc., 153 Ga. App. 704, 266 S.E.2d 345 (1980) (decided under former Code 1933, § 38-1710).
Although it is permissible for the expert to give the expert's opinion to facts in issue or even the ultimate issue where such question is a proper one for opinion evidence, the expert is not permitted to state a legal conclusion as to the ultimate matter in issue. Nichols v. State, 177 Ga. App. 689, 340 S.E.2d 654 (1986) (decided under former O.C.G.A. § 24-9-67).
Testimony on calculation of damages.
- When plaintiffs presented expert testimony on the calculation of damages, even though the trier of fact found that the defendant was not responsible for all the damages, the plaintiff showed with reasonable certainty the total amount of damages and the degree to which those damages were attributable to defendant, and the award was affirmed. Metropolitan Atlanta Rapid Transit Authority v. Green Int'l, Inc., 235 Ga. App. 419, 509 S.E.2d 674 (1998) (decided under former O.C.G.A. § 24-9-67).
Opinions of an expert alone are insufficient grounds on which to grant summary judgment. Lake v. Hamilton Bank, 137 Ga. App. 600, 224 S.E.2d 522 (1976) (decided under former Code 1933, § 38-1710).
Experiments.
- Expert testimony can be based on experiments if the expert gives details of the experiment. Frank v. State, 141 Ga. 243, 80 S.E. 1016 (1914) (decided under former Penal Code 1910, § 1048).
Construction with
§ 24-9-65. - Former Code 1933, § 38-1710 dealt with expert testimony concerning science, skill, trade, or like questions, in which matters experts may give their opinion based on facts as proved by other witnesses, but former Code 1933, § 38-1708 (see now O.C.G.A. § 24-7-701) dealt with opinions of lay witnesses. Mills v. State, 71 Ga. App. 353, 30 S.E.2d 824 (1944) (decided under former Code 1933, § 38-1710).
Appellate standard for admission.
- When testimony of an expert accident reconstructionist was admitted by the trial court as expert opinion, the Court of Appeals erred by judging its admissibility pursuant to the standard appropriate for lay witnesses. Johnson v. Knebel, 267 Ga. 853, 485 S.E.2d 451 (1997) (decided under former O.C.G.A. § 24-9-67).
Appellate court is not bound by Daubert v. Merrell Dow Pharmaceuticals, 509 U.S. 579, 113 S. Ct. 2786, 125 L. Ed. 2d 469 (1993) and has consistently refused to apply the Daubert standard; further, as Daubert involves the application of Fed. R. Evid. 702, which has not been adopted in Georgia, Daubert has not been adopted in Georgia either. Dailey v. State, 271 Ga. App. 492, 610 S.E.2d 126 (2005) (decided under former O.C.G.A. § 24-9-67).
Past use of expert by other party.
- Plaintiff's questions regarding the prior employment of plaintiff's expert by defense counsel, asked in an attempt to rehabilitate or bolster the expert's credibility, were not admissible. Vaughn v. Protective Ins. Co., 243 Ga. App. 79, 532 S.E.2d 159 (2000) (decided under former O.C.G.A. § 24-9-67).
Exclusion of expert witness testimony on cross-racial eyewitness identification not reversible error.
- Trial court did not abuse the court's discretion or violate the defendant's Sixth and Fourteenth amendment rights by excluding expert testimony about cross-racial eyewitness identification; based on eyewitness testimony and the defendant's confession, the jury could have resolved the issue of whether the victims recognized the defendant without the assistance of an expert witness. Crawford v. State, 283 Ga. App. 645, 642 S.E.2d 335 (2007) (decided under former O.C.G.A. § 24-9-67).
Limiting questioning of expert.
- Trial court did not err in limiting appellate counsel's questioning of an expert witness at the hearing on the defendant's motion for new trial because there was sufficient evidence before the trial court to show what the expert's testimony would have been had defense counsel called the expert as a witness; appellate counsel called the witness and questioned the witness about the techniques used to question young children and the reliability of a young child's testimony, and the trial court decided to limit the testimony only when appellate counsel began asking specific questions about one of the interviews. Vaughn v. State, 307 Ga. App. 754, 706 S.E.2d 137 (2011) (decided under former O.C.G.A. § 24-9-67).
Subject matter improper for expert testimony.
- As the undisputed evidence showed that the mitochondrial DNA (mtDNA) analysis was based on sound scientific theory and produced reliable results when proper procedures were followed, and the "direct sequencing" method employed in the prosecution of the defendant for murder was the only technique accepted and used by those who conducted forensic mtDNA testing, as the technique produced reliable results upon which any practitioner could draw conclusions, the trial court did not err in allowing that evidence. Vaughn v. State, 282 Ga. 99, 646 S.E.2d 212 (2007) (decided under former O.C.G.A. § 24-9-67).
Expert on DNA testing.
- No error resulted by admitting expert testimony on the issue of DNA testing and because the defendant did not contend that the expert's testimony failed to meet the Harper standard, no basis for reversal on this ground existed. Carruth v. State, 286 Ga. App. 431, 649 S.E.2d 557 (2007) (decided under former O.C.G.A. § 24-9-67).
No error in excluding experts' affidavits.
- Trial court did not err by denying a defendant's request to admit testimony regarding the contents of affidavits used, in part, by the defendant's expert witnesses as the basis for the experts' opinions regarding the defendant's mental status as, in applying former O.C.G.A. § 24-9-67.1 (see now O.C.G.A. §§ 24-7-702,24-7-703), the trial court first found that the facts contained in the disputed affidavits were otherwise inadmissible hearsay, as the affidavits rested on the veracity and competency of persons not in court and did not come within any statutorily-recognized hearsay exception. The trial court then balanced the probative value of the affidavits against the prejudicial effect, noting that the affidavits were originally submitted in the defendant's habeas proceeding, contained identical language thereby casting suspicion on the affidavits' trustworthiness, contained conclusory statements and irrelevant and prejudicial information related to the defendant's alleged alcohol and drug use and the crime of murder for which the defendant was convicted; and, therefore, the affidavits had little probative information and were cumulative of other evidence. Rogers v. State, 282 Ga. 659, 653 S.E.2d 31 (2007), cert. denied, 552 U.S. 1311, 128 S. Ct. 1882, 170 L. Ed. 2d 747, reh'g denied, 554 U.S. 930, 128 S. Ct. 2988, 171 L. Ed. 2d 907 (2008), overruled on other grounds by State v. Lane, 308 Ga. 10, 838 S.E.2d 808 (2020) (decided under former O.C.G.A. § 24-9-67.1)
Procedural Considerations
Giving testimony based on lab report not yet admitted into evidence.
- Expert medical witness could not give an opinion on the cause of death based on lab report which had not yet been admitted into evidence, but error in allowing such opinion was cured when the lab report was later introduced into evidence. Vaughn v. State, 249 Ga. 803, 294 S.E.2d 504 (1982) (decided under former O.C.G.A. § 24-9-67).
Trial court did not err in refusing to permit the testimony of two of the manufacturer's expert witnesses in an asbestos exposure case as to the asbestos fiber counts on its packing material that had been determined by an outside laboratory, even though such opinions may be given on the facts as proved by other witnesses, because the experts were not entitled to give an opinion based upon the outside laboratory's report which was prepared by other people and which was not in evidence. John Crane, Inc. v. Jones, 262 Ga. App. 531, 586 S.E.2d 26 (2003) (decided under former O.C.G.A. § 24-9-67).
Introduction of fingerprint magnifications not necessary when expert testified as to expert's comparisons.
- Expert in field of fingerprint identification was qualified to state opinion based on expert's analysis and comparison that fingerprints found at scene of the crime were those of appellant; and in presenting this expert testimony, it was not necessary for state to introduce magnification of prints to demonstrate at trial the points of similarity. W.B.S. v. State, 163 Ga. App. 471, 294 S.E.2d 705 (1982) (decided under former O.C.G.A. § 24-9-67).
When witness is tendered as an expert.
- Witness who was not tendered as an expert until near the end of the witness's testimony and after cross-examination qualified as an expert at the inception of the witness's testimony and could properly render an expert opinion. In re C.W.D., 232 Ga. App. 200, 501 S.E.2d 232 (1998) (decided under former O.C.G.A. § 24-9-67).
Qualification as Expert
Court determines expert's qualifications.
- Qualification of a witness as an expert is addressed to the sound discretion of the court. Clary v. State, 8 Ga. App. 92, 68 S.E. 615 (1910) (decided under former Penal Code 1910, § 1048); Hines v. Hendricks, 25 Ga. App. 682, 104 S.E. 520 (1920); Western & Atl. R.R. v. Fowler, 77 Ga. App. 206, 47 S.E.2d 874 (1948) (decided under former Penal Code 1910, § 1048); McDowell v. State, 78 Ga. App. 116, 50 S.E.2d 633 (1948); Carroll v. Hayes, 98 Ga. App. 450, 105 S.E.2d 755 (1958) (decided under former Code 1933, § 38-1710); Pinkerton & Laws Co. v. Robert & Co. Assocs., 129 Ga. App. 881, 201 S.E.2d 654 (1973); Johnson v. State, 130 Ga. App. 704, 204 S.E.2d 302 (1974) (decided under former Code 1933, § 38-1710); Barrow v. State, 235 Ga. 635, 221 S.E.2d 416 (1975); McCoy v. State, 237 Ga. 118, 227 S.E.2d 18 (1976) (decided under former Code 1933, § 38-1710); Redd v. State, 240 Ga. 753, 243 S.E.2d 16 (1978); Kelly v. Floor Bazaar, Inc., 153 Ga. App. 163, 264 S.E.2d 697 (1980) (decided under former Code 1933, § 38-1710); Wilkie v. State, 153 Ga. App. 609, 266 S.E.2d 289 (1980); Haygood v. State, 154 Ga. App. 633, 269 S.E.2d 480 (1980) (decided under former Code 1933, § 38-1710); Rose Mill Homes, Inc. v. Michel, 155 Ga. App. 808, 273 S.E.2d 211 (1980); Hicks v. State, 157 Ga. App. 69, 276 S.E.2d 129 (1981) (decided under former Code 1933, § 38-1710); Hicks v. State, 196 Ga. App. 311, 396 S.E.2d 60 (1990);(decided under former Code 1933, § 38-1710);(decided under former Code 1933, § 38-1710);(decided under former Code 1933, § 38-1710);(decided under former Code 1933, § 38-1710);(decided under former Code 1933, § 38-1710);(decided under former Code 1933, § 38-1710);(decided under former Code 1933, § 38-1710);(decided under former O.C.G.A. § 24-9-67).
For definitions of expert, see Macon Ry. & Light Co. v. Mason, 123 Ga. 773, 51 S.E. 569 (1905) (decided under former Civil Code 1895, § 5287). Doster v. Brown, 25 Ga. 24, 71 Am. Dec. 153 (1858) See also White v. Clements, 39 Ga. 232 (1869) (decided under former law); Hines v. Hendricks, 25 Ga. App. 682, 104 S.E. 520 (1920);(decided under former law);(decided under former Civil Code 1910, § 5876).
An expert is one who practices a business or profession requiring the person to have technical knowledge in that field. Smith v. State, 127 Ga. 56, 56 S.E. 116 (1906) (decided under former Penal Code 1895, § 1022); Glover v. State, 129 Ga. 717, 59 S.E. 816 (1907);(decided under former Penal Code 1895, § 1022).
Expert testimony on absence of DNA.
- Trial counsel was not ineffective in failing to object to the testimony of an expert witness that the absence of the defendant's DNA on a ski mask recovered from the scene of the crime did not rule out the possibility that the defendant wore the mask because the witness's testimony was admissible as the opinions of experts on any question of science, skill, trade, or like questions was always admissible; and counsel extensively cross-examined the witness on the witness's conclusions, eliciting an admission from the witness that no studies supported the witness's testimony, reiterating the absence of DNA evidence implicating the defendant, and introducing into evidence the expert's report containing that finding. Mitchell v. State, 303 Ga. 491, 813 S.E.2d 367 (2018)(decided under former O.C.G.A. § 24-9-67).
Expert testimony must relate to scientific or technical knowledge. McLain v. State, 71 Ga. 279 (1883) (decided under former Code 1882, § 3868); McClendon v. State, 7 Ga. App. 784, 68 S.E. 331 (1910); Spence v. State, 20 Ga. App. 61, 92 S.E. 555 (decided under former Penal Code 1895, § 1022); 20 Ga. App. 832 (1917);cert. denied,(decided under former Penal Code 1910, § 1048).
Basic requirements for expert.
- Generally, nothing more is required to qualify an expert than that one has been educated in a particular trade or profession. Southern Ry. v. Cabe, 109 Ga. App. 432, 136 S.E.2d 438 (1964) (decided under former Code 1933, § 38-1710); Bowden v. State, 239 Ga. 821, 238 S.E.2d 905 (1977); 435 U.S. 937, 98 S. Ct. 1513, 55 L. Ed. 2d 533 (1978), cert. denied, Brown v. State, 245 Ga. 588, 266 S.E.2d 198 (1980) (decided under former Code 1933, § 38-1710); Dennis v. State, 158 Ga. App. 142, 279 S.E.2d 275 (1981); Morris v. State, 159 Ga. App. 600, 284 S.E.2d 103 (1981) (decided under former Code 1933, § 38-1710); Inta-Roto, Inc. v. Guest, 160 Ga. App. 75, 286 S.E.2d 61 (1981);(decided under former Code 1933, § 38-1710);(decided under former Code 1933, § 38-1710);(decided under former Code 1933, § 38-1710).
An expert witness need only be competent as an expert in the witness's own field, and the witness need not have legal expertise. Watkins v. State, 259 Ga. 648, 386 S.E.2d 132 (1989) (decided under former O.C.G.A. § 24-9-67).
Formal training is not a prerequisite for expert status. Brown v. State, 245 Ga. 588, 266 S.E.2d 198 (1980) (decided under former Code 1933, § 38-1710).
Special knowledge necessary to be an expert may be derived from experience as well as study. Southern Ry. v. Cabe, 109 Ga. App. 432, 136 S.E.2d 438 (1964) (decided under former Code 1933, § 38-1710); Martin v. Newton, 129 Ga. App. 735, 201 S.E.2d 31 (1973); Bowden v. State, 239 Ga. 821, 238 S.E.2d 905 (1977) (decided under former Code 1933, § 38-1710); 435 U.S. 937, 98 S. Ct. 1513, 55 L. Ed. 2d 533 (1978); Brown v. State, 245 Ga. 588, 266 S.E.2d 198 (1980), cert. denied, Dennis v. State, 158 Ga. App. 142, 279 S.E.2d 275 (1981) (decided under former Code 1933, § 38-1710); Morris v. State, 159 Ga. App. 600, 284 S.E.2d 103 (1981); Inta-Roto, Inc. v. Guest, 160 Ga. App. 75, 286 S.E.2d 61 (1981) (decided under former Code 1933, § 38-1710);(decided under former Code 1933, § 38-1710);(decided under former Code 1933, § 38-1710);(decided under former Code 1933, § 38-1710).
Failure to object constitutes waiver.
- In rate increase request hearings, when the power company failed to object to an expert witness's qualifications either before or during the witness's testimony, any objection it might have had was waived. Georgia Power Co. v. Georgia Pub. Serv. Comm'n, 196 Ga. App. 572, 396 S.E.2d 562 (1990) (decided under former O.C.G.A. § 24-9-67).
Expert can express an opinion on a matter which lies within the domain of the profession or calling which the witness pursues. Martin v. Newton, 129 Ga. App. 735, 201 S.E.2d 31 (1973) (decided under former Code 1933, § 38-1710).
Application of knowledge to specific problem not necessary.
- When one has been formally educated in a particular trade or profession, additional experience by application of that knowledge to a specific problem is not necessary in order to sustain one as an expert. Inta-Roto, Inc. v. Guest, 160 Ga. App. 75, 286 S.E.2d 61 (1981) (decided under former Code 1933, § 38-1710).
Qualification as expert satisfied.
- Toxicologist and pharmacologist, who was not a medical doctor, was competent to give an opinion in a medical malpractice action that a drug prescribed by defendants caused plaintiff's miscarriage since the testimony was not offered to address the applicable standard of care but to show causation. Sinkfield v. Shi-Han Oh, 229 Ga. App. 883, 495 S.E.2d 94 (1998) (decided under former O.C.G.A. § 24-9-67).
Medical examiner's testimony was not without proper foundation as the examiner was qualified, tendered, and admitted as an expert and, therefore, the examiner was permitted to give opinion testimony based on observations during the autopsy, as well as on facts provided by other witnesses; the examiner testified that the opinion as to the manner of death was based on the appearance of the wound, the path and course of the bullet, the presence of a laceration to the head of the victim, and the absence of a gun at the scene. Smith v. State, 276 Ga. 97, 575 S.E.2d 450 (2003) (decided under former O.C.G.A. § 24-9-67).
Defendant alleged that the witness was not qualified as a handwriting expert because the witness failed the test to become a member of the American Board of Forensic Document Examiners and was only a trainee member of the American Society of Forensic Document Examiners; although this is true, the witness testified to becoming a member of the Southeastern Association of Forensic Document Examiners after completing two years of training, that the witness had been performing handwriting analysis on a daily basis for the Georgia Crime Lab for the last eight years, that the witness had examined thousands of documents, and that the witness had been qualified as an expert witness in criminal cases tried in a Georgia superior court approximately eighteen times; thus, there was no abuse of discretion by the trial court in qualifying the witness as an expert in forensic document examination. Poole v. State, 270 Ga. App. 432, 606 S.E.2d 878 (2004) (decided under former O.C.G.A. § 24-9-67).
Advocate for the victims of sexual assault at a rape crisis center was properly qualified as an expert as the advocate had been through 50 hours of sexual assault training and had two years of experience, in which the advocate had counseled over 100 purported victims of sexual assault; further, the advocate had published one article that was presented at a seminar. Stevenson v. State, 272 Ga. App. 335, 612 S.E.2d 521 (2005) (decided under former O.C.G.A. § 24-9-67).
Certification of an expert was not an abuse of discretion as the witness had over 20 years of experience in the field of domestic violence and an educational background in psychology. Miller v. State, 273 Ga. App. 761, 615 S.E.2d 843 (2005) (decided under former O.C.G.A. § 24-9-67).
Employee of the Department of Family and Children Services was properly allowed to testify that a victim's condition and behavior was consistent with Shaken Baby Syndrome based on the employee's extensive experience and training with respect to fatal child abuse and Shaken Baby Syndrome; the fact that the employee did not hold a medical degree went only to the weight of the employee's testimony, and the employee's evidence was cumulative of that given by physicians. Waits v. State, 282 Ga. 1, 644 S.E.2d 127 (2007), overruled on other grounds by State v. Lane, 2020 Ga. LEXIS 98 (Ga. 2020) (decided under former O.C.G.A. § 24-9-67).
Trial court did not abuse the court's discretion by qualifying a licensed professional counselor and qualified psychometrist as an expert in the administration of intelligence tests after hearing testimony regarding the counselor's relevant education and experience based on the fact that the counselor did not independently perform the Wechsler Adult Intelligence Scales-Third Edition test (WAIS-III) on the defendant and merely assisted in the test's administration, nor did the trial court err in admitting the sufficiently relevant and reliable evidence regarding the WAIS-III test administered since the counselor's supervisor did not have to be physically present in the room with the defendant during the counselor's testing session in order to supervise the counselor. Further, the defendant failed to show that the tests results were unreliable after the counselor's unrebutted testimony regarding the manner in which the testing was conducted. Rogers v. State, 282 Ga. 659, 653 S.E.2d 31 (2007), cert. denied, 552 U.S. 1311, 128 S. Ct. 1882, 170 L. Ed. 2d 747, reh'g denied, 554 U.S. 930, 128 S. Ct. 2988, 171 L. Ed. 2d 907 (2008), overruled on other grounds by State v. Lane, 308 Ga. 10, 838 S.E.2d 808 (2020) (decided under former O.C.G.A. § 24-9-67).
An investigator testified that the investigator had been employed in law enforcement since 1988; that the investigator had received 240 hours of narcotics training; that the investigator had attended a regional drug training academy specializing in the recognition of clandestine methamphetamine labs; that the investigator had attended informant management classes, undercover drug classes, and drug identification classes; that the investigator had previously investigated cases involving possession of narcotics with the intent to distribute and manufacturing of the same, including methamphetamine; and, among other things, that the investigator used confidential informants to assess new trends in the world of illegal narcotics. Based on this training and experience, there was no abuse of discretion by the trial court in qualifying the investigator as an expert in the street level narcotics trade, the characteristics of a methamphetamine lab, and the identification of a substance as possible methamphetamine. Boone v. State, 293 Ga. App. 654, 667 S.E.2d 880 (2008) (decided under former O.C.G.A. § 24-9-67).
In a prosecution for driving under the influence, testimony of the forensic toxicologist who tested the defendant's blood was properly admitted as expert testimony as the witness had a permit from the Georgia Bureau of Investigation to perform chemical analyses of blood specimens received from the police, and the defendant subsequently had the opportunity to cross-examine the witness about the witness's credentials and testimony. Fowler v. State, 294 Ga. App. 864, 670 S.E.2d 448 (2008), cert. denied, No. S09C0529, 2009 Ga. LEXIS 204 (Ga. 2009) (decided under former O.C.G.A. § 24-9-67).
Evidence was sufficient for a rational trier of fact to find the defendant guilty of aggravated sodomy of one victim and rape and aggravated sodomy of a second victim because the jury was authorized to conclude, based on a nurse's testimony and the medical evidence, that penetration occurred; the nurse was properly tendered and accepted as an expert in the subject of sexual assault examinations, and the nurse testified that the first victim's external injuries established the potential for penetration. Blash v. State, 304 Ga. App. 542, 697 S.E.2d 265 (2010) (decided under former O.C.G.A. § 24-9-67).
Juvenile court did not abuse the court's discretion in determining that an officer possessed the requisite skill and experience to testify as an expert because the officer was experienced, had investigated thousands of crimes, was trained in crime scene observation, and had handled other cases involving shoe-print matching. In the Interest of J.D., 305 Ga. App. 519, 699 S.E.2d 827 (2010) (decided under former O.C.G.A. § 24-9-67).
Trial court did not abuse the court's discretion in qualifying a witness as an expert in the valuation of transportation equipment because the witness testified that the witness had been in the repossession business 22 years, with another 6 or 8 years dealing specifically with equipment repossession, that the witness was qualified to estimate the value and condition of transportation equipment, and that the witness had been qualified as an expert 15-20 times in other court proceedings. Rushing v. State, 305 Ga. App. 629, 700 S.E.2d 620 (2010) (decided under former O.C.G.A. § 24-9-67).
Trial court did not abuse the court's discretion in qualifying a witness as an expert in commercial sexual exploitation of children as the witness testified that the witness was the director of forensic services at the Georgia Center for Child Advocacy; had conducted over one thousand forensic interviews; had been qualified as a forensic-interview expert approximately 46 times; had undergone training for mental health providers in the area of commercial sexual exploitation of children and become a facilitator to train others on the topic; and had attended symposiums and seminars with instruction from the Federal Bureau of Investigation on how to work with sexually exploited children. Pepe-Frazier v. State, 331 Ga. App. 263, 770 S.E.2d 654 (2015), cert. denied, No. S15C1105, 2015 Ga. LEXIS 412 (Ga. 2015).
Trial court did not abuse the court's discretion in qualifying a witness as an expert in pimping culture, terminology, and relationship dynamics between pimps and prostitutes because the witness testified that the witness was the director of forensic services for Fulton County, Georgia; worked with various law enforcement agencies in Georgia to train them in understanding cycles of abuse regarding sexual exploitation; had trained with the National Center for Missing and Exploited Children to study the effects of sexual exploitation, exploring the dynamics between demeanor of pimps and exploited teenagers; and had studied pimping and prostitution by extensive review of scholarly literature on the subject. Pepe-Frazier v. State, 331 Ga. App. 263, 770 S.E.2d 654 (2015), cert. denied, No. S15C1105, 2015 Ga. LEXIS 412 (Ga. 2015).
Trial court did not abuse the court's discretion by allowing one of the investigating police officers to testify as an expert regarding interviewing witnesses to a crime because the officer testified that the officer had extensive training in conducting investigations and interviewing witnesses and 11 years of experience doing so and did not offer any opinion as to the truthfulness of the boys, who were the victims of the crime. Smith v. State, 342 Ga. App. 656, 805 S.E.2d 251 (2017).
Although the defendant argued that the trial court should have looked to the forensic interviewer's level of experience in 2012, when the interviewer conducted the forensic interviews, rather than 2016, when the interviewer gave the interviewer's expert opinion because the defendant asserted that, due to the interviewer's inexperience in 2012, the interviewer did not properly conduct the forensic interviews, those criticisms went to the weight and credibility of the interviewer's testimony about the opinions the interviewer reached based on the allegedly flawed interviews, which were matters for the factfinder, and not to the interviewer's qualifications as an expert in 2016. Kruel v. State, 344 Ga. App. 256, 809 S.E.2d 491 (2018).
Testimony as to a former investigator's credentials laid an adequate foundation for the investigator to testify about the cycle of domestic violence, why victims are reluctant to report domestic violence, and why they stay with their assailants. Pauley v. State Two Cases, 355 Ga. App. 47, 842 S.E.2d 499 (2020).
Appointment of Expert by Court
Appointment discretionary with court.
- Granting or denial of a motion for appointment of expert witnesses lies within the sound discretion of the trial court. Whitaker v. State, 246 Ga. 163, 269 S.E.2d 436 (1980) (decided under former Code 1933, § 38-1710).
Appointment of expert witnesses lies within the sound discretion of the trial court and, absent a showing of an abuse of that discretion, the Court of Appeals will not interfere. Stevens v. State, 247 Ga. 698, 278 S.E.2d 398 (1981), cert. denied, 463 U.S. 1213, 103 S. Ct. 3551, 77 L. Ed. 2d 1398 (1982) (decided under former Code 1933, § 38-1710); Dennis v. State, 158 Ga. App. 142, 279 S.E.2d 275 (1981); Morris v. State, 159 Ga. App. 600, 284 S.E.2d 103 (1981) (decided under former Code 1933, § 38-1710);(decided under former Code 1933, § 38-1710).
Trial court's comments on witness's status held prejudicial.
- Trial court's comments, adding the influence of the court's personal opinion on the expert status of a witness and identifying the witness in common with the court as a state-paid employee, were prejudicial comments on the evidence during a competency trial. Jones v. State, 189 Ga. App. 232, 375 S.E.2d 648 (1988) (decided under former O.C.G.A. § 24-9-67).
Basis for Opinion
1. In General
Facts that can form basis for opinion.
- Expert opinions can be based upon facts which the expert has testified to, or heard others testify to, or which have been hypothetically stated to the expert. Choice v. State, 31 Ga. 424 (1860) (decided under former law); Taylor v. State, 83 Ga. 647, 10 S.E. 442 (1889);(decided under former Code 1882, § 3868).
An expert witness may give an opinion based upon the witness's own examination of a person, upon the witness's observation of that person, or upon any state of facts, supported by some evidence in the case, which the witness assumes as true. Mutual Benefit Health & Accident Ass'n v. Hickman, 100 Ga. App. 348, 111 S.E.2d 380 (1959) (decided under former Code 1933, § 38-1710).
Opinion of an expert on any question relating to the expert's profession, trade, or business is always admissible, when given in response to a hypothetical question based upon the testimony of witnesses other than the expert, or if the expert has personally observed the facts, and gives the expert's opinion based upon the expert's own observation. Bullington v. Chandler, 110 Ga. App. 803, 140 S.E.2d 59 (1964) (decided under former Code 1933, § 38-1710).
An expert may give an opinion based on facts which the expert personally observes, and when an expert personally observes data collected by another, the expert's opinion is not objectionable merely because it is based, in part, on the other's findings. Millar Elevator Serv. Co. v. O'Shields, 222 Ga. App. 456, 475 S.E.2d 188 (1996) (decided under former O.C.G.A. § 24-9-67).
Expert witness's opinion predicated on facts raised by others.
- An expert witness's opinion may be predicated upon facts placed in evidence by the testimony of other witnesses or by any other legal means. Mutual Benefit Health & Accident Ass'n v. Hickman, 100 Ga. App. 348, 111 S.E.2d 380 (1959) (decided under former Code 1933, § 38-1710); National Trailer Convoy, Inc. v. Sutton, 136 Ga. App. 760, 222 S.E.2d 98 (1975);(decided under former Code 1933, § 38-1710).
Opinions must be based on established facts.
- Expert opinions are admissible if based upon a state of facts which the evidence on behalf of either party tends to establish; but the jury should know upon what facts the opinion is founded, for its pertinence depends upon whether the jury finds the facts on which the opinion rests. Moore v. State, 221 Ga. 636, 146 S.E.2d 895 (1966) (decided under former Code 1933, § 38-1710).
Matter not in evidence.
- An expert witness was properly precluded from expressing an opinion based on a letter containing an inadmissible summary of matter not in evidence and not within the expert's own knowledge. Loper v. Drury, 211 Ga. App. 478, 440 S.E.2d 32 (1994) (decided under former O.C.G.A. § 24-9-67).
Witness's opinion must be witness's own; the witness cannot act as a mere conduit for the opinion of others. Thus, the opinion is incompetent if the witness has no general knowledge of the witness's own. Central of Ga. Ry. v. Brower, 106 Ga. App. 340, 127 S.E.2d 33, rev'd on other grounds, 218 Ga. 525, 128 S.E.2d 926 (1962) (decided under former Code 1933, § 38-1710); Stephen W. Brown Radiology Assocs. v. Gowers, 157 Ga. App. 770, 278 S.E.2d 653 (1981);(decided under former Code 1933, § 38-1710).
Personal observation of fact by expert.
- Opinion of experts, on matters within their area of expertise, is admissible especially when the expert has personally observed the facts and gives the expert's opinion based upon the expert's own observations. Erwin v. Gold Kist, Inc., 146 Ga. App. 372, 246 S.E.2d 404 (1978) (decided under former Code 1933, § 38-1710).
Expert testimony as to illegal drug distribution trade is admissible.
- Trial court did not err by allowing a district attorney's investigator to give the investigator's "guess" that a document found in appellant's possession and introduced in evidence "was 'the way people who are involved in the distribution of drugs keep records of who owes them money,' " because the testimony of the investigator involved a question of "trade," particularly concerning the procedure used in the illegal drug distribution trade in keeping records of accounts due and owing. O'Donnell v. State, 200 Ga. App. 829, 409 S.E.2d 579, cert. denied, 200 Ga. App. 896, 409 S.E.2d 579 (1991) (decided under former O.C.G.A. § 24-9-67).
Expert testimony by an undercover officer about how street drug dealers operated in three person units consisting of a seller, drug handler, and money handler, and why they did so, was admissible as not "beyond the ken" of the average juror and applicable to the facts of the case. Vaughan v. State, 251 Ga. App. 221, 553 S.E.2d 335 (2001) (decided under former O.C.G.A. § 24-9-67).
With respect to a particular scientific procedure or technique, the trial court makes a determination whether the procedure or technique in question has reached a scientific stage of verifiable certainty, based upon evidence, expert testimony, treatises, or the rationale of cases in other jurisdictions. Orkin Exterminating Co. v. McIntosh, 215 Ga. App. 587, 452 S.E.2d 159 (1994), overruled on other grounds by Chrysler Group LLC v. Walden, 2018 Ga. LEXIS 154 (Ga. 2018) (decided under former O.C.G.A. § 24-9-67).
Expert need not have gone to scene.
- When an expert bases the expert's opinion on facts within the bounds of evidence, the testimony is admissible notwithstanding the fact that the expert never went to the scene at all and based the expert's opinion on an examination of photographs. Jones v. Ray, 159 Ga. App. 734, 285 S.E.2d 42 (1981) (decided under former Code 1933, § 38-1710).
Opinion based on findings of another.
- When an expert personally observes data collected by another, the expert's opinion is not objectionable merely because it is based, in part, upon the other's findings. Cochran v. State, 151 Ga. App. 478, 260 S.E.2d 391 (1979) (decided under former Code 1933, § 38-1710).
Condemnor's expert properly testified as to the necessity of a transmission line even though the condemnor's opinion was based, in part, on another's findings; further, the expert conducted the condemnor's own study after the case was initially remanded and testified on remand that the transmission line was needed by 2007 to provide safe and reliable electric service to customers in North Georgia. Mosteller Mill, Ltd. v. Ga. Power Co., 271 Ga. App. 287, 609 S.E.2d 211 (2005) (decided under former O.C.G.A. § 24-9-67).
Expert opinion may not be given on another's opinion.
- Expert may give an opinion upon the facts testified to by other witnesses, but not upon their opinions. Walker v. Fields, 28 Ga. 237 (1859) (decided under former law); Taylor v. Warren, 175 Ga. 800, 166 S.E. 225 (1932); McCauley v. Boston Old Colony Ins. Co., 149 Ga. App. 706, 256 S.E.2d 19 (1979) (decided under former Civil Code 1910, § 5876);(decided under former Code 1933, § 38-1710).
Expert opinion cannot be based on out-of-court representations by another. Flanagan v. State, 106 Ga. 109, 32 S.E. 80, 71 Am. St. R. 242 (1898) (decided under former Penal Code 1895, § 1022).
Opinion based on hearsay.
- When an expert witness's opinion is based on hearsay it is not error for the court to allow an expert to relate facts of which the expert has no direct personal knowledge, especially if the court gives the proper limiting instruction. White v. Georgia Power Co., 237 Ga. 341, 227 S.E.2d 385 (1976) (decided under former Code 1933, § 38-1710).
It is axiomatic that an expert, in utilizing the expert's expertise, may base the expert's opinion as to value upon hearsay. Hoover & Morris Dev. Co. v. FDIC, 149 Ga. App. 855, 256 S.E.2d 140 (1979) (decided under former Code 1933, § 38-1710).
When an expert's testimony is based on hearsay, the lack of personal knowledge on the part of the expert does not mandate the exclusion of the opinion but, rather, presents a jury question as to the weight which should be assigned the opinion. King v. Browning, 246 Ga. 46, 268 S.E.2d 653 (1980) (decided under former Code 1933, § 38-1710); Cheek v. Wainwright, 246 Ga. 171, 269 S.E.2d 443 (1980); Jones v. Ray, 159 Ga. App. 734, 285 S.E.2d 42 (1981) (decided under former Code 1933, § 38-1710);(decided under former Code 1933, § 38-1710).
An expert's opinion may be based in part upon hearsay, and when it is based thereon it goes to the weight and credibility of the testimony, not its admissibility. Avant Trucking Co. v. Stallion, 159 Ga. App. 198, 283 S.E.2d 7 (1981) (decided under former Code 1933, § 38-1710).
Provided an expert witness is properly qualified in the field in which the expert offers testimony, and the facts relied upon are within the bounds of the evidence, whether there is sufficient knowledge upon which to base an opinion or whether it is based upon hearsay goes to the weight and credibility of the testimony, not its admissibility. Orkin Exterminating Co. v. McIntosh, 215 Ga. App. 587, 452 S.E.2d 159 (1994), overruled on other grounds by Chrysler Group LLC v. Walden, 2018 Ga. LEXIS 154 (Ga. 2018) (decided under former O.C.G.A. § 24-9-67).
In an action against a utility and power company for damages arising from electromagnetic radiation, the trial court committed reversible error in admitting testimony of experts regarding a perceived consensus of opinion in the scientific community that magnetic fields from power lines are not a cause of cancer. Jordan v. Georgia Power Co., 219 Ga. App. 690, 466 S.E.2d 601 (1995) (decided under former O.C.G.A. § 24-9-67).
Forensic pediatrician who examined a battered infant was properly allowed to testify about seizures noted in the baby's medical records, and about a radiologist's report that confirmed suspicions about the extent of an injury, because the pediatrician's opinion was not based solely on those records, but also on an examination of the baby. Nichols v. State, 278 Ga. App. 46, 628 S.E.2d 131 (2006) (decided under former O.C.G.A. § 24-9-67).
Investigating police officer basing opinion on hearsay statements.
- Police officer who investigates an accident cannot base the officer's opinion as to manner in which accident occurred upon hearsay statements which the officer receives during the officer's investigation unless they are a part of the res gestae. Avant Trucking Co. v. Stallion, 159 Ga. App. 198, 283 S.E.2d 7 (1981) (decided under former Code 1933, § 38-1710).
Book learning.
- Expert testimony was admissible even though based on book learning rather than knowledge gained from actual experience. Boswell v. State, 114 Ga. 40, 39 S.E. 897 (1901) (decided under former Penal Code 1895, § 1022); Miller v. Travelers Ins. Co., 111 Ga. App. 245, 141 S.E.2d 223 (1965);(decided under former Code 1933, § 38-1710).
Opinion based on education and experience was not speculative.
- Testimony of a firearms expert, that the expert would not expect to find gunshot residue from the murder weapon, a semiautomatic pistol, was not speculative, was grounded on the expert's education and experience, and was admissible under former O.C.G.A. § 24-9-67. Tavera v. State, 279 Ga. 803, 621 S.E.2d 422 (2005) (decided under former O.C.G.A. § 24-9-67).
Restatement of textbook opinion inadmissible.
- While an expert witness may support the expert's opinion by reference to books, statistical sources, and other learned sources, the witness's testimony is inadmissible when it is merely a restatement of a textbook opinion rather than an independent expression of the witness's own expert opinion. DOT v. Brand, 149 Ga. App. 547, 254 S.E.2d 873 (1979), overruled on other grounds, Metropolitan Atlanta Rapid Transit Auth., 250 Ga. 538, 299 S.E.2d 876 (1983) (decided under former O.C.G.A. § 24-9-67).
Medical records.
- Opinion testimony based merely upon records and case history furnished the witness by other doctors and not a part of the evidence in the case was objectionable, but the error in the admission of the doctor's opinion was harmless, since during the four-day trial of the case, an enormous amount of testimony was adduced concerning the recent medical history of the decedent, the testimony included findings of diagnostic tests made during the decedent's final days, a pathologic opinion as to the cause of death could not have been made without reference to the decedent's records, and other opinion evidence based upon the records was admitted in evidence without objection. Andrews v. Major, 180 Ga. App. 393, 349 S.E.2d 225 (1986) (decided under former O.C.G.A. § 24-9-67).
Specific article in medical journal.
- It was not necessary for a doctor to have qualified as authoritative the specific article referred to in a medical journal in defense of a medical malpractice case, since the doctor did not limit the doctor's assessment of the journal's authority to the selective scope of the article. Pound v. Medney, 176 Ga. App. 756, 337 S.E.2d 772 (1985) (decided under former O.C.G.A. § 24-9-67).
Jury instructions.
- Charge to the jury, that opinions of experts to be of any value, must be based upon facts believed, or proven to be true, was not an improper charge, nor did it have the effect of expressing an opinion on the evidence or tending to discredit the testimony of the expert witnesses in the case. Allen v. Allen, 71 Ga. App. 272, 30 S.E.2d 665 (1944) (decided under former Code 1933, § 38-1710).
2. Need to State Basis
Expert and nonexpert compared.
- Expert may give the expert's opinion without stating the reasons therefor, but one who was not an expert may give an opinion only when accompanied with the reasons. Wallace v. State, 204 Ga. 676, 51 S.E.2d 395 (1949) (decided under former Code 1933, § 38-1710).
Explanation unnecessary.
- Opinion testimony by witnesses who qualified as expert real estate appraisers, as to the value of the condemnees' land and as to the damages which the witnesses had suffered on account of the taking, is admissible without the necessity for the witnesses to state the facts upon which the witnesses based their opinions. Housing Auth. v. Millwood, 138 Ga. App. 610, 226 S.E.2d 766 (1976) (decided under former Code 1933, § 38-1710).
An expert may give the expert's opinion without stating the foundation therefor and without a hypothetical question based upon other evidence if the expert's opinion is based upon facts which the expert knows and has observed, or based upon facts in the record at the time the expert states the expert's opinion, or based partly on first-hand knowledge and partly on the facts or record. Thrift-Mart, Inc. v. Commercial Union Assurance Cos., 154 Ga. App. 344, 268 S.E.2d 397 (1980) (decided under former Code 1933, § 38-1710).
Explanation permitted.
- While it is not necessary that an expert witness state the facts upon which the expert bases the expert's opinion, it is error to refuse to permit the expert to do so for the purpose of showing the basis of the opinion. It matters not whether the facts are sought from the witness while on direct or on cross-examination. State Hwy. Dep't v. Howard, 119 Ga. App. 298, 167 S.E.2d 177 (1969) (decided under former Code 1933, § 38-1710); Martin v. State, 151 Ga. App. 9, 258 S.E.2d 711 (1979);(decided under former Code 1933, § 38-1710).
Explanation necessary.
- When an expert testifies to a conclusion based on information furnished by others, then all the information utilized by that expert in forming an opinion should be presented to the jury to enable the jury to evaluate the expert's testimony. Stewart v. State, 246 Ga. 70, 268 S.E.2d 906 (1980) (decided under former Code 1933, § 38-1710).
Error to refuse to permit witness to state basis.
- While it is not necessary that an expert witness state the facts upon which the expert bases the expert's opinion, it is error to refuse to permit the expert to do so for the purpose of showing the basis of the opinion. Jordan v. Department of Transp., 178 Ga. App. 133, 342 S.E.2d 482 (1986) (decided under former O.C.G.A. § 24-9-67).
Basis for opinion outside scope of expertise.
- An opinion of a witness is inadmissible when the information upon which the opinion is based is not given. This is true, even though the witness is an expert on some subject, when the opinion testimony related to a subject on which the witness is not qualified as an expert. Central of Ga. Ry. v. Brower, 106 Ga. App. 340, 127 S.E.2d 33, rev'd on other grounds, 218 Ga. 525, 128 S.E.2d 926 (1962) (decided under former Code 1933, § 38-1710).
Explanation enhances weight of opinion.
- When the facts upon which an expert bases the expert's opinion are stated the opinion is entitled to greater weight. State Hwy. Dep't v. Howard, 119 Ga. App. 298, 167 S.E.2d 177 (1969) (decided under former Code 1933, § 38-1710).
Hypothetical Questions
Admissibility of opinion.
- Opinion of an expert on any question relating to the expert's profession, trade, or business is always admissible, when given in response to a hypothetical question based upon the testimony of witnesses other than the expert, or where the expert has personally observed the facts and given the expert's opinion based on the expert's own opinion. Yates v. State, 127 Ga. 813, 56 S.E. 1017, 9 Ann. Cas. 620 (1907) (decided under former Civil Code 1895, § 5287); Cranshaw v. Schweizer Mfg. Co., 1 Ga. App. 363, 58 S.E. 222 (1907); Fincher v. Davis, 27 Ga. App. 494, 108 S.E. 905 (1921) (decided under former Civil Code 1895, § 5287); Taylor v. Warren, 175 Ga. 800, 166 S.E. 225 (1932); Wallace v. State, 204 Ga. 676, 51 S.E.2d 395 (1949) (decided under former Civil Code 1910, § 5876);(decided under former Civil Code 1910, § 5876);(decided under former Code 1933, § 38-1710).
Trial court did not err by allowing an expert to respond to the state's hypothetical question during redirect examination because the hypothetical was supported by the evidence; the expert was asked to consider a scenario based on the defendant's version of the facts and photographs of a crib in order to determine whether the victim's injury was consistent with the defendant's story. Elrod v. State, 316 Ga. App. 491, 729 S.E.2d 593 (2012) (decided under former O.C.G.A. § 24-9-67).
It is not necessary that question be propounded hypothetically when an expert testifies to the expert's opinion based upon facts which the expert has observed. Jones v. Ray, 159 Ga. App. 734, 285 S.E.2d 42 (1981) (decided under former Code 1933, § 38-1710).
When hypothetical question is appropriate.
- Proper mode of examining a physician or expert, when the physician or expert is not testifying from one's own knowledge, is to ask the physician or expert hypothetical questions. Kimball v. State, 63 Ga. App. 183, 10 S.E.2d 240 (1940) (decided under former Code 1933, § 38-1710).
When an expert is asked to give an opinion on facts not coming within the expert's own knowledge, the question should be hypothetical. Evans v. DeKalb County Hosp. Auth., 154 Ga. App. 17, 267 S.E.2d 319 (1980) (decided under former Code 1933, § 38-1710).
Factual basis for hypothetical question.
- When the testimony is based upon a hypothetical question, the facts assumed to be true should be such as the evidence on behalf of either party tends to establish. Flanagan v. State, 106 Ga. 109, 32 S.E. 80, 71 Am. St. R. 242 (1898) (decided under former Civil Code 1895, § 5287); Yarbrough v. Yarbrough, 202 Ga. 391, 43 S.E.2d 329 (1947); Ellis v. Southern Ry., 89 Ga. App. 407, 79 S.E.2d 541 (1953) (decided under former Code 1933, § 38-1710); Garrett v. State, 153 Ga. App. 366, 265 S.E.2d 304 (1980);(decided under former Code 1933, § 38-1710);(decided under former Code 1933, § 38-1710).
Opinion of an expert witness may be given in response to a hypothetical question based upon facts placed in evidence by the testimony of other witnesses or by competent evidence of any nature. Altamaha Convalescent Ctr., Inc. v. Godwin, 137 Ga. App. 394, 224 S.E.2d 76 (1976) (decided under former Code 1933, § 38-1710); DuBois v. Ray, 177 Ga. App. 349, 339 S.E.2d 605 (1985); Horton v. Eaton, 215 Ga. App. 803, 452 S.E.2d 541 (1994), overruled on other grounds, Smith v. Finch, 285 Ga. 709, 681 S.E.2d 147 (2009) (decided under former O.C.G.A. § 24-9-67); Rowe v. State, 266 Ga. 136, 464 S.E.2d 811 (1996);(decided under former O.C.G.A. § 24-9-67);(decided under former O.C.G.A. § 24-9-67).
When reliance is made upon circumstantial evidence alone for proof of one of the essential facts assumed in the framing of a hypothetical question, the trier of fact may consider the answer to the question only if it has first determined that the assumed fact has been satisfactorily established. Bowers v. State, 153 Ga. App. 894, 267 S.E.2d 309 (1980) (decided under former Code 1933, § 38-1710).
Reliance can be made upon circumstantial evidence to establish a basis for framing a hypothetical question; the question of whether the circumstances were sufficiently proven to establish the fact contained in the hypothetical question is an issue for the trier of fact. Stoneridge Properties, Inc. v. Kuper, 178 Ga. App. 409, 343 S.E.2d 424 (1986) (decided under former O.C.G.A. § 24-9-67).
That the testimony was circumstantial would not affect the viability of a hypothetical. Whether there was insufficient knowledge upon which the expert could render the expert's opinion goes not to the admissibility of that opinion, but to the credibility of the witness. Apac-Georgia, Inc. v. Padgett, 193 Ga. App. 706, 388 S.E.2d 900 (1989) (decided under former O.C.G.A. § 24-9-67).
Method of asking question.
- Attorney would be limited in framing the hypothetical question to the expert witness by the same parameters which would limit own testimony. Altamaha Convalescent Ctr., Inc. v. Godwin, 137 Ga. App. 394, 224 S.E.2d 76 (1976) (decided under former Code 1933, § 38-1710).
Weight of testimony in response to hypothetical question.
- Opinion testimony of an expert can be based upon hypothetical questions and though the jury is allowed to receive the testimony of experts the jury is not bound by such testimony; such testimony is not conclusive or controlling and is submitted for whatever the jury considers it to be worth. Woods v. Andersen, 145 Ga. App. 492, 243 S.E.2d 748 (1978) (decided under former Code 1933, § 38-1710).
Weight of Opinion Evidence
Expert testimony is weighed and judged like any other; its weight and value is determined by the jury considering its nature and the layman's knowledge thereof. Buckhanon v. State, 151 Ga. 827, 108 S.E. 209 (1921) (decided under former Penal Code 1910, § 1048). Mitchell v. State, 6 Ga. App. 554, 65 S.E. 326 (1909) See also (decided under former Penal Code 1895, § 1022).
Trier of fact not bound by expert testimony.
- While competent expert testimony is entitled to great weight, the testimony is not so authoritative that either court, jury, or commission is bound to be governed by that testimony, since the testimony is advisory merely and intended to assist the court, jury, or commission in coming to a correct conclusion. B.F. Goodrich Co. v. Arnold, 88 Ga. App. 64, 76 S.E.2d 20 (1953) (decided under former Code 1933, § 38-1710). Thomas v. United States Cas. Co., 218 Ga. 493, 128 S.E.2d 749 (1962) See also Miller v. Travelers Ins. Co., 111 Ga. App. 245, 141 S.E.2d 223 (1965) (decided under former Code 1933, § 38-1710); Hughes v. Newell, 152 Ga. App. 618, 263 S.E.2d 505 (1979); Moses v. State, 245 Ga. 180, 263 S.E.2d 916 (1980) (decided under former Code 1933, § 38-1710); 449 U.S. 849, 101 S. Ct. 138, 66 L. Ed. 2d 60 (1980); Nagel v. State, 262 Ga. 888, 427 S.E.2d 490 (1993) (decided under former Code 1933, § 38-1710);cert. denied,overruled on other grounds,(decided under former Code 1933, § 38-1710).
While direct and positive testimony cannot arbitrarily be rejected by a jury or other trier of facts, this rule does not apply to the opinion evidence of physicians or other experts. Accordingly, it was a question for the board's determination as to whether the board would accept the testimony of one physician, which authorized the award for the claimant, or the testimony of two other doctors, which would have authorized an award denying compensation. United States Fid. & Guar. Co. v. Doyle, 96 Ga. App. 745, 101 S.E.2d 600 (1957) (decided under former Code 1933, § 38-1710).
Expert testimony is not absolutely obligatory on the jury, even if uncontradicted. Smith v. Godfrey, 155 Ga. App. 113, 270 S.E.2d 322 (1980) (decided under former Code 1933, § 38-1710).
Probative value of opinion evidence is for the jury. Western Union Tel. Co. v. Ford, 8 Ga. App. 514, 70 S.E. 65 (1911) (decided under former Civil Code 1910, § 5876); McDowell v. State, 78 Ga. App. 116, 50 S.E.2d 633 (1948); Ford Motor Co. v. Hanley, 128 Ga. App. 311, 196 S.E.2d 454 (1973) (decided under former Code 1933, § 38-1710); Arnold v. State, 155 Ga. App. 569, 271 S.E.2d 702 (1980);(decided under former Code 1933, § 38-1710);(decided under former Code 1933, § 38-1710).
Weight given to discredited tests in expert community.
- Trial court did not err in admitting the expert testimony of the psychologist who interviewed the children even though defendant presented expert testimony that one of the tests used by the psychologist had been discredited in the psychological community; the conflicting expert opinions on test results went to the weight, rather than the admissibility, of the testimony. Hanson v. State, 263 Ga. App. 45, 587 S.E.2d 200 (2003) (decided under former O.C.G.A. § 24-9-67).
Quality of expert opinion must be considered.
- An expert opinion while very valuable in many situations, nevertheless has a limited weight-carrying capacity. The "quality" of such testimony must be considered. Lashley v. Ford Motor Co., 359 F. Supp. 363 (M.D. Ga. 1972), aff'd, 480 F.2d 158 (5th Cir.), cert. denied, 414 U.S. 1072, 94 S. Ct. 585, 38 L. Ed. 2d 478 (1973) (decided under former Code 1933, § 38-1710).
Jury can consider expert's credentials in assessing weight.
- Whether an examining physician is or is not a psychiatrist is a matter which may affect the extent of the physician's expertise in evaluating a mental condition, and therefore may affect the weight of any opinion or evaluation, a matter to be determined by a jury, but it does not affect admissibility, nor is admissibility precluded by the fact that the physician's opinions and evaluations are based on conversations with the patient. Petty v. Folsom, 229 Ga. 477, 192 S.E.2d 246 (1972) (decided under former Code 1933, § 38-1710).
Jury can consider the expert's credentials and then give such weight and credit to the expert's testimony as jury sees fit. McCoy v. State, 237 Ga. 118, 227 S.E.2d 18 (1976) (decided under former Code 1933, § 38-1710).
Positive factual testimony outweighs negative opinion.
- Affirmative and positive testimony of witnesses as to the actual facts of a particular occurrence is not overcome by testimony which is negative in its character or consists of mere opinions. West v. State, 84 Ga. 527, 10 S.E. 731 (1890) (decided under former Code 1882, § 3868).
An expert's opinion based on insufficient factual foundation or hearsay affects the weight, but not the admissibility, of the expert's testimony. Woods v. Andersen, 145 Ga. App. 492, 243 S.E.2d 748 (1978) (decided under former Code 1933, § 38-1710).
When it is developed by examination that the opinion is based on inadequate knowledge, this goes to the credibility of the witness rather than to the admissibility of the evidence. Jones v. Ray, 159 Ga. App. 734, 285 S.E.2d 42 (1981) (decided under former Code 1933, § 38-1710).
Jury instructions.
- Even if the testimony of the civil engineer as to the distance between named points, introduced by the defendant in support of an alibi sought to be established by the defendant, could be considered as expert evidence, the omission to charge the law in regard to expert testimony as set forth in the former statute, declaring that "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," was not, as contended, an expression of opinion as to credibility of the witness and weight of the testimony; nor was it erroneous to omit to charge on that subject without request. Stone v. State, 180 Ga. 223, 178 S.E. 435 (1935) (decided under former Code 1933, § 38-1710).
Charge that opinion evidence could be accepted by the jury and considered along with all the other evidence in the case, but that the jury was not bound by the opinions of experts or nonexperts was not error. Allen v. Allen, 71 Ga. App. 272, 30 S.E.2d 665 (1944) (decided under former Code 1933, § 38-1710).
Jury charge upheld.
- There was no reversible error, despite the defendant's argument on appeal that the trial court's charge to the jury on DNA evidence was incomplete and prejudicial as a matter of law because: (1) a review of the record showed that the charge given by the court tracked the language set forth in the pattern charge and was otherwise a correct statement of law with respect to the collection and testing of DNA; and (2) the defendant's proposed jury charge was argumentative and composed primarily of evidentiary matters that were not proper for a jury instruction. Moreover, there was no request for the additional charge the defendant asserted was erroneously omitted present in the record. Stanley v. State, 289 Ga. App. 373, 657 S.E.2d 305 (2008) (decided under former O.C.G.A. § 24-9-67).
Cross-Examination
Matters admissible on cross examination.
- Matters the expert may have omitted from consideration in the expert's appraisal of property were appropriate matters for cross-examination and rebuttal, and ultimately for the weight to be given the opinion by the jury. Brookhaven Supply Co. v. DeKalb County, 134 Ga. App. 878, 216 S.E.2d 694 (1975) (decided under former Code 1933, § 38-1710).
Reasoning the expert used in reaching expert's opinion may be explored on cross-examination and need not be presented in toto as a condition precedent to admissibility. Woods v. Andersen, 145 Ga. App. 492, 243 S.E.2d 748 (1978) (decided under former Code 1933, § 38-1710).
Introducing inadmissible evidence by cross-examination.
- Party should not be allowed to introduce in evidence an opinion of an expert witness based on hearsay by the method of cross-examining such witness when such evidence would have been entirely inadmissible on direct examination. Moore v. State, 221 Ga. 636, 146 S.E.2d 895 (1966) (decided under former Code 1933, § 38-1710).
Volunteered testimony.
- Testimony of an expert witness is not reversible error if the expert volunteered testimony during cross-examination which was substantially the same or similar to that later objected to. DOT v. Coley, 184 Ga. App. 206, 360 S.E.2d 924 (1987) (decided under former O.C.G.A. § 24-9-67).
Illustrations
1. Opinions Admissible
Experts were permitted to testify in the following cases.
- See Hook v. Stovall, Dunn & Co., 26 Ga. 704 (1859) (physician on disease) (decided under former law); Walker v. Fields, 28 Ga. 237 (1859) (willwright) (decided under former law); May v. Dorsett, 30 Ga. 116 (1860) (banking expert) (decided under former law); White v. Clements, 39 Ga. 232 (1869) (physician on disease; ethnologist on question of race) (decided under former Code 1863, § 3792); Everett v. State, 62 Ga. 65 (1878) (physician) (decided under former Code 1873, § 3868); Taylor v. State, 83 Ga. 647, 10 S.E. 442 (1889) (physician on sanity) (decided under former Code 1882, § 3868); Von Pollnitz v. State, 92 Ga. 16, 18 S.E. 301, 44 Am. St. R. 72 (1893) (physician) (decided under former Code 1882, § 3868); Perry v. State, 110 Ga. 234, 36 S.E. 781 (1900) (physician) (decided under former Penal Code 1895, § 1022); Wheeler v. State, 112 Ga. 43, 37 S.E. 126 (1900) (acoustics expert on whether conversation could be overheard) (decided under former Penal Code 1895, § 1022); Travelers Ins. Co. v. Thornton, 119 Ga. 455, 46 S.E. 678 (1904) (physician on death but not on contributing cause) (decided under former Civil Code 1895, § 5287); Macon Ry. & Light Co. v. Mason, 123 Ga. 773, 51 S.E. 569 (1905) (osteopath notwithstanding lack of physician's license) (decided under former Civil Code 1895, § 5287); Bullard v. State, 127 Ga. 289, 56 S.E. 429 (1907) (physician) (decided under former Penal Code 1895, § 1022); Goodwyn v. Central of Ga. Ry., 2 Ga. App. 470, 58 S.E. 688 (1907) (railroad engineer) (decided under former Civil Code 1895, § 5287); Glover v. State, 129 Ga. 717, 59 S.E. 816 (1907) (physician on sanity) (decided under former Penal Code 1895, § 1022); Harper v. State, 129 Ga. 770, 59 S.E. 792 (1907) (physician) (decided under former Penal Code 1895, § 1022); Piedmont Cotton Mills v. Georgia Ry. & Elec. Co., 131 Ga. 129, 62 S.E. 52 (1908) (expert on location of railroad and factory) (decided under former Civil Code 1895, § 5287); Cochrell v. Langley Mfg. Co., 5 Ga. App. 317, 63 S.E. 244 (1908) (experts on machinery) (decided under former Civil Code 1895, § 5287); Garner v. State, 6 Ga. App. 788, 65 S.E. 842 (1909) (gun expert on caliber of bullet) (decided under former Penal Code 1895, § 1022); Western Union Tel. Co. v. Ford, 8 Ga. App. 514, 70 S.E. 65 (1911) (whether sight could have been saved by timely arrival of oculist) (decided under former Civil Code 1910, § 5876); Lanier v. State, 141 Ga. 17, 80 S.E. 5 (1913) (expert testimony on manner and cause of death) (decided under former Penal Code 1910, § 1048); Wilensky v. State, 15 Ga. App. 360, 83 S.E. 276 (1914) (jeweler as to symbol on watch) (decided under former Penal Code 1910, § 1048); Byrd v. State, 142 Ga. 633, 83 S.E. 513, 1915B L.R.A. 1143 (1914) (gun expert on wound) (decided under former Penal Code 1910, § 1048); Bates v. State, 18 Ga. App. 718, 90 S.E. 481 (1916) (handwriting expert on authorship of papers) (decided under former Penal Code 1910, § 1048); Spence v. State, 20 Ga. App. 61, 92 S.E. 555, cert. denied, 20 Ga. App. 832 (1917) (accountant as to what books show) (decided under former Penal Code 1910, § 1048); Holtzendorf v. McNeil, 25 Ga. App. 792, 104 S.E. 919 (1920) (dentist on value of extracted tooth) (decided under former Civil Code 1910, § 5876); Bullard v. Metropolitan Life Ins. Co., 31 Ga. App. 641, 122 S.E. 75 (1924) (physician on death but not on contributing cause) (decided under former Civil Code 1910, § 5876); Southern Ry. v. Wessinger, 32 Ga. App. 551, 124 S.E. 100, cert. denied, 32 Ga. App. 807 (1924) (railroad engineer) (decided under former Civil Code 1910, § 5876); Taber Mill v. Southern Brighton Mills, 49 Ga. App. 390, 175 S.E. 665 (1934) (expert on customs and usages of trade) (decided under former Code 1933, § 38-1710); Pollard v. Page, 56 Ga. App. 503, 193 S.E. 117 (1937) (physician on plaintiffs' condition, after giving basic facts) (decided under former Code 1933, § 38-1710); Southern Ry. v. Blanton, 59 Ga. App. 252, 200 S.E. 471 (1938), later appeal, 63 Ga. App. 93, 10 S.E.2d 430 (1940) (railroad engineer on safety practices) (decided under former Code 1933, § 38-1710); Sockwell v. Lucas & Jenkins, Inc., 71 Ga. App. 765, 32 S.E.2d 201 (1944) (building inspector on conformance to building code) (decided under former Code 1933, § 38-1710); McDowell v. State, 78 Ga. App. 116, 50 S.E.2d 633 (1948) (undertaker on cause of corpse's mutilation) (decided under former Code 1933, § 38-1710); Central Truckaway Sys. v. Harrigan, 79 Ga. App. 117, 53 S.E.2d 186 (1949) (physician on permanency of patient's injuries) (decided under former Code 1933, § 38-1710); Eller v. Matthews, 216 Ga. 315, 116 S.E.2d 235 (1960) (teacher on emotional state of pupil) (decided under former Code 1933, § 38-1710); State Hwy. Dep't v. Sinclair Ref. Co., 103 Ga. App. 18, 118 S.E.2d 293 (1961) (expert on damages to property) (decided under former Code 1933, § 38-1710); McGuire v. Davis, 437 F.2d 570 (5th Cir. 1971) (physician on pain suffered by patient) (decided under former Code 1933, § 38-1710); Altamaha Convalescent Ctr., Inc. v. Godwin, 137 Ga. App. 394, 224 S.E.2d 76 (1976) (plaintiff's attorney on reasonableness of attorney's fee) (decided under former Code 1933, § 38-1710); Hall v. State, 138 Ga. App. 20, 225 S.E.2d 705 (1976) (fingerprints) (decided under former Code 1933, § 38-1710); Harris v. Atlantic Creosote Co., 142 Ga. App. 695, 236 S.E.2d 909 (1977) (expert on vehicle's stopping distance) (decided under former Code 1933, § 38-1710); Security Life Ins. Co. v. Blitch, 155 Ga. App. 167, 270 S.E.2d 349 (1980) (expert on whether wound was self-inflicted) (decided under former Code 1933, § 38-1710); Smith v. State, 247 Ga. 612, 277 S.E.2d 678 (1981) (expert on battered woman's syndrome) (decided under former Code 1933, § 38-1710); Paxton v. State, 159 Ga. App. 175, 282 S.E.2d 912, cert. denied, 248 Ga. 231, 283 S.E.2d 235 (1981) (common origin of pubic hairs) (decided under former Code 1933, § 38-1710); Inta-Roto, Inc. v. Guest, 160 Ga. App. 75, 286 S.E.2d 61 (1981) (expert on mechanical engineering) (decided under former Code 1933, § 38-1710); Davis v. Williams, 165 Ga. App. 45, 299 S.E.2d 102 (1983) (surveyor as to boundary line) (decided under former O.C.G.A. § 24-9-67); Ford Motor Co. v. Stubblefield, 171 Ga. App. 331, 319 S.E.2d 470 (1984) (experts in automobile engineering and systems safety analysis) (decided under former O.C.G.A. § 24-9-67); Concrete Constr. Co. v. City of Atlanta, 176 Ga. App. 873, 339 S.E.2d 266 (1985) (expert in electric engineering familiar with the installation of gas lines) (decided under former O.C.G.A. § 24-9-67); Ingram v. State, 178 Ga. App. 292, 342 S.E.2d 765 (1986) (Georgia Bureau of Investigation (GBI) agent qualified to testify as an expert in drug business methods and language interpretation) (decided under former O.C.G.A. § 24-9-67); Height v. State, 221 Ga. App. 647, 472 S.E.2d 485 (1996);(drug investigator on amount and manner of packaging of cocaine) (decided under former O.C.G.A. § 24-9-67).
Battered women's syndrome expert was properly permitted to testify as to why a victim would not have reported instances of abuse and why the victim dismissed a complaint for divorce and reconciled with defendant; further, the expert was properly permitted to testify as to the expert's qualifications in the presence of the jury. Watson v. State, 278 Ga. 763, 604 S.E.2d 804 (2004), overruled on other grounds by State v. Lane, 308 Ga. 10, 838 S.E.2d 808 (2020) (decided under former O.C.G.A. § 24-9-67).
Fingerprint comparison expert.
- State's fingerprint expert was properly permitted to testify as fingerprint comparison evidence was not novel and was widely accepted in Georgia courts. Dailey v. State, 271 Ga. App. 492, 610 S.E.2d 126 (2005) (decided under former O.C.G.A. § 24-9-67).
Expert testimony about signatures.
- Trial court did not abuse the court's discretion by ruling that expert testimony was admissible as the expert did not testify as to whether the signatures on the checks belonged to the widow, the defendant, or some other person as the expert merely testified that the signatures reviewed were substantially different and went on to describe the differences the expert noticed in a review of the materials. Carr v. State, 350 Ga. App. 461, 829 S.E.2d 641 (2019), cert. denied, No. S19C1422, 2020 Ga. LEXIS 15 (Ga. 2020).
Rheumatologist testifying on the cause of an injured party's scleroderma.
- Trial court properly allowed a customer who fell while shopping at a home products store to offer the testimony of experts who opined that scleroderma the customer developed shortly after the customer underwent surgical fusion of two vertebrae was caused by trauma the customer suffered when the customer fell, and the court did not err when the court declined to apply the test established by the Supreme Court of Georgia in its Harper decision when it decided if the customer's experts could testify. Home Depot U.S.A., Inc. v. Tvrdeich, 268 Ga. App. 579, 602 S.E.2d 297 (2004) (decided under former O.C.G.A. § 24-9-67).
Contract terms.
- If there was no applicable custom to determine, in a timber lease, the size of trees meant by the phrase "suitable for turpentine purposes," opinion evidence would be admissible. It should be admitted, however, not to explain the meaning of descriptive terms in the contract, but simply for the purpose of determining what class of trees or timber as to size would come within such description. Nor would the quoted phrase be varied in the phrase's legal meaning because of the different methods of proof, for that would be the same whether a custom be shown or not, since any such custom, if existing, would presumably represent the standard of ordinarily prudent men. Dorsey v. Clements, 202 Ga. 820, 44 S.E.2d 783 (1947) (decided under former Code 1933, § 38-1710).
Expert testimony on credibility of witness.
- Generally, expert testimony as to the credibility of a witness is admissible if the subject matter involves organic or mental disorders, such as insanity, hallucinations, nymphomania, retrograde amnesia, and testimony concerning physical maladies which tend to impair mental or physical faculties. Jones v. State, 232 Ga. 762, 208 S.E.2d 850 (1974) (decided under former Code 1933, § 38-1710).
Expert's testimony as to whether victims' videotaped statements were coached.
- Expert's testimony as to whether victims' videotaped statements were coached was inadmissible in a prosecution for child molestation since the jury saw the interviews for themselves and heard the victims' direct and cross-examination as witnesses. Wright v. State, 233 Ga. App. 358, 504 S.E.2d 261 (1998) (decided under former O.C.G.A. § 24-9-67).
An expert on insanity may give an opinion based upon the expert's own examination of a person, upon the expert's observation of that person, or upon any state of facts, supported by some evidence in the case, which the expert assumes as true. Moore v. State, 221 Ga. 636, 146 S.E.2d 895 (1966) (decided under former Code 1933, § 38-1710).
Testimony by examining physician.- Physician who has examined an injured party may describe what the physician has seen and give the physician's expert inferences therefrom. McGuire v. Davis, 437 F.2d 570 (5th Cir. 1971) (decided under former Code 1933, § 38-1710).
Testimony by medical examiner regarding whether injuries were accidental.
- In the defendants' murder trial in which the defendants claimed a shooting was accidental as the parties struggled, because the medical examiner's testimony that the victim's injuries were inconsistent with an accidental shooting did not opine as to the defendants' mental intent for any crime or defense, there was no violation of O.C.G.A. § 24-7-704, and because the examiner's opinion was based on the examiner's specialized knowledge and training, O.C.G.A. § 24-7-707, any objection would have been meritless. Eller v. State, 303 Ga. 373, 811 S.E.2d 299 (2018).
Opinion on ultimate fact.
- Defendant's claim that a doctor improperly gave an opinion as to an ultimate fact was rejected as the doctor did not testify concerning child neglect syndrome when the doctor testified that the doctor's overall impression was a possible child-neglect scenario, the syndrome had been recognized and expert testimony concerning the syndrome was admissible, and a treating physician could testify that the examination of a child raised a strong suspicion of child abuse. Revells v. State, 283 Ga. App. 59, 640 S.E.2d 587 (2006) (decided under former O.C.G.A. § 24-9-67).
Testimony by examining psychologist.
- Juvenile court properly allowed expert to testify about mother's mental health status and its effects on the mother's parenting abilities even though the testing occurred two years prior to the hearing. In the Interest of A.K., 272 Ga. App. 429, 612 S.E.2d 581 (2005) (decided under former O.C.G.A. § 24-9-67).
In a child molestation case, there was no error in allowing certain expert testimony by a psychologist. The psychologist was properly allowed to explain conclusions based on tests developed either in the scientific community or from the psychologist's own clinical experience; the psychologist could testify that the victim's symptoms and accounts were highly consistent with sexual abuse; and because the trial court was authorized to conclude that one's ability to manufacture stories of abuse based upon his or her intelligence quotient (IQ) level fell beyond the ken of the average juror, the psychologist was properly allowed to testify that a person with the victim's IQ of 74 would have difficulty fabricating a detailed fictional account of abuse. Mullis v. State, 292 Ga. App. 218, 664 S.E.2d 271 (2008) (decided under former O.C.G.A. § 24-9-67).
Testimony by examining nurse.
- In a prosecution on charges of both child molestation and aggravated child molestation, the trial court did not abuse the court's discretion in allowing an examining registered nurse to give an opinion that a child sex abuse victim's injuries were consistent with ones caused by penetration by a finger when, prior to testifying, the nurse outlined the nurse's relevant background including completion of a sexual assault nurse examiner's program, advanced pediatric training under the supervision of a doctor involved in child abuse cases, and training and experience in performing numerous pelvic examinations on child abuse victims. Rodriguez v. State, 281 Ga. App. 129, 635 S.E.2d 402 (2006) (decided under former O.C.G.A. § 24-9-67).
Trial court did not err in denying the defendant's motion in limine to exclude a nurse's testimony, stating that the victim's normal physical examination was consistent with claims of molestation, as the nurse simply testified that the victim's physical examination results were consistent with the allegations, and as such was a permissible expression of the expert's opinion. Noe v. State, 287 Ga. App. 728, 652 S.E.2d 620 (2007) (decided under former O.C.G.A. § 24-9-67).
Experts on toxicology.
- As an expert witness was not a mere conduit for a toxicologist's findings, because the expert reviewed the data and testing procedures to determine the accuracy of the toxicologist's report, the expert's testimony was properly admitted. Therefore, defense counsel was not ineffective for failing to object to the testimony. Watkins v. State, 285 Ga. 355, 676 S.E.2d 196 (2009) (decided under former O.C.G.A. § 24-9-67).
Psychologist's hypothetical based on evidence adduced at trial.
- When appellant was charged with sexually molesting his daughter, and appellant acknowledged that he had sexually molested his first daughter by a previous marriage over a ten year period, the trial court did not err by admitting a psychologist's testimony about the mathematical probabilities regarding the self-rehabilitation of pedophiles or persons with incestuous behavior, since the likelihood of a person with compulsive behavior rehabilitating himself without treatment was a subject matter not within the scope of the ordinary laymen's knowledge and experience, and thus evidence regarding these matters was properly admissible under former O.C.G.A. § 24-9-67. Harwood v. State, 195 Ga. App. 465, 394 S.E.2d 109 (1990) (decided under former O.C.G.A. § 24-9-67).
Testimony on psychiatric disorders.
- Testimony of experts that plaintiff suffered from recognized psychiatric disorders that caused the plaintiff to have or complain of physical symptoms out of proportion to any injuries the plaintiff may have experienced did not go solely to the credibility of the plaintiff and was admissible. Rose v. Figgie Int'l, Inc., 229 Ga. App. 848, 495 S.E.2d 77 (1998) (decided under former O.C.G.A. § 24-9-67).
Medical social worker.
- Witness's testimony that a baby's injuries were inconsistent with the history of events the defendant had described was well within the witness's purview as a medical social worker because the witness's daily duties required consideration of medical evidence along with personal observations to determine whether factors were present which could indicate child abuse. Nichols v. State, 278 Ga. App. 46, 628 S.E.2d 131 (2006) (decided under former O.C.G.A. § 24-9-67).
Testimony of a mechanic was sufficient to prove the value of the damage to the victim's car in a case charging second degree criminal damage to property. Wyche-Hinkle v. State, 268 Ga. App. 898, 602 S.E.2d 902 (2004) (decided under former O.C.G.A. § 24-9-67).
Expert on property value.
- In an action to acquire land, a duly qualified expert may state the expert's opinion as to value without the necessity of stating the facts on which the expert's opinion is based. DeKalb County v. Cowan, 151 Ga. App. 753, 261 S.E.2d 478 (1979) (decided under former Code 1933, § 38-1710).
In an action to acquire land, if the expert testifies that the expert's opinion is based in part on a personal inspection of the property, it is no ground for objection that the expert's inspection was made subsequent to the taking. DeKalb County v. Cowan, 151 Ga. App. 753, 261 S.E.2d 478 (1979) (decided under former Code 1933, § 38-1710).
In an action to acquire land, it was not error to allow expert testimony as to the rental value of the property over the county's objection that the figure was based on the rental value of other property which was not shown to be comparable as the comparability of the other property was a matter going to the weight to be given the testimony, not its admissibility, and further, the testimony was relevant on the issue of consequential damages for the temporary loss of use of the property. DeKalb County v. Cowan, 151 Ga. App. 753, 261 S.E.2d 478 (1979) (decided under former Code 1933, § 38-1710).
Expert's reliance on hearsay.
- Trial court did not err in overruling a landowner's objection to the admission of evidence of a survey conducted by another surveyor employed by the landowner's neighbors in that the survey was prepared in partial reliance on data outside of the surveyor's personal knowledge; an expert may base the expert's opinion on hearsay and may be allowed to testify as to the basis for the expert's findings, and the lack of the expert's personal knowledge goes to the weight assigned to the opinion. Ellis v. Holder, 267 Ga. App. 503, 600 S.E.2d 425 (2004) (decided under former O.C.G.A. § 24-9-67).
Value of condemned land.
- Expert's opinion as to what expert would pay for condemned land was probative of the land's fair market value and improperly excluded by the trial court. Jotin Realty Co. v. Department of Transp., 174 Ga. App. 809, 331 S.E.2d 605 (1985) (decided under former O.C.G.A. § 24-9-67).
Expert on safety and causation.
- Propriety of expert opinion as to whether a particular condition is safe or unsafe certainly is within the scope and purview of an expert's opinion; moreover, testimony as to causation is a proper matter for expert testimony. Pembrook Mgt., Inc. v. Cossaboon, 157 Ga. App. 675, 278 S.E.2d 100 (1981) (decided under former O.C.G.A. § 24-9-67).
Testimony of pathologist in murder was not inadmissible because it might possibly give rise to inferences adverse to defendant. Bethea v. State, 251 Ga. 328, 304 S.E.2d 713 (1983) (decided under former O.C.G.A. § 24-9-67).
Medical expert on murder victim's fatal condition.
- It was within the medical examiner's expertise to testify, based upon the examiner's observation of the blood stains at victim's condo and the significance of the blood loss indicated by those stains, that in the absence of immediate medical care victim was probably dead. White v. State, 263 Ga. 94, 428 S.E.2d 789 (1993) (decided under former O.C.G.A. § 24-9-67).
Medical examiner properly allowed to state opinion on cause of death.
- County medical examiner was properly permitted to state examiner's opinion, based on the facts contained in a 1979 autopsy report, that the victim died of a gunshot wound to the abdomen, and such opinion was not the restatement of the diagnostic opinion of another expert. Turner v. State, 273 Ga. 340, 541 S.E.2d 641 (2001), cert. denied, 534 U.S. 838, 122 S. Ct. 93, 151 L. Ed. 2d 54 (2001) (decided under former O.C.G.A. § 24-9-67).
Testimony from medical examiner on findings.
- State was properly allowed to ask a medical examiner (ME) whether the defendant's account of the homicide was consistent with the ME's findings in the autopsy as: 1) the ME did not state an opinion as to the veracity of any witness or the defendant; and 2) the ME's testimony did not go to the ultimate issue because the defendant admitted strangling the victim but claimed self-defense. Cade v. State, 289 Ga. 805, 716 S.E.2d 196 (2011) (decided under former O.C.G.A. § 24-9-67).
Forensic pathologist on single fatal blow.
- Expert's testimony regarding the possibility of death by a single blow, and the possibility of subsequent head movement following death in that manner, was admissible because it was based on facts in evidence and because this testimony pertained to conclusions jurors would not ordinarily be able to draw for themselves. Maxwell v. State, 263 Ga. 57, 428 S.E.2d 76 (1993) (decided under former O.C.G.A. § 24-9-67).
Expert testimony on bullet trajectory.
- Defendant was not entitled to a new trial due to ineffective assistance of trial counsel for failure to conduct a pre-trial consultation with an expert witness to utilize the evidence of the trajectory of the fatal bullet to support the defense because the defendant failed to demonstrate a reasonable probability that the trial result would have been different if counsel had made such a consultation as the undisputed evidence established that the defendant fired the first shot and was the aggressor who started the gunfight; and the fact that the defendant fired the fatal shot while trying to get away from the gunfight the defendant started did not change the analysis regarding the lack of justification as the defendant was the aggressor. Mosby v. State, 300 Ga. 450, 796 S.E.2d 277 (2017).
Testimony by pathologist instead of physician on injury was proper.
- In a prosecution for kidnapping and aggravated assault, the trial court properly allowed a pathologist instead of a physician to testify as to whether the holes in the victim's shoe and an injury to the victim's toe were caused by a bullet; the pathologist had experience in inspecting gunshot wounds on people and in clothing and footwear.(decided under former O.C.G.A. § 24-9-67).
Expert trained in behavioral science.
- Expert in the areas of homicide investigation and crime scene reconstruction was allowed to testify regarding the reasons why a perpetrator might reposition and cover a victim since the challenged testimony was well within the expert's range of training and experience and the average juror does not possess the experience necessary to discern the most common complex behavioral reasons for a perpetrator's acting in such a manner. Foster v. State, 273 Ga. 34, 537 S.E.2d 659 (2000) (decided under former O.C.G.A. § 24-9-67).
Expert testimony on DNA profile.
- Expert's testimony regarding the frequency in the population of the DNA profile obtained from three rape victims was admissible given the expert's credentials and expertise and the expert's testimony as to the computer program which generated the statistical frequencies to which the expert testified. Collins v. State, 267 Ga. App. 784, 600 S.E.2d 802 (2004) (decided under former O.C.G.A. § 24-9-67).
No error resulted by admitting expert testimony on the issue of DNA testing, and because the defendant did not contend that the expert's testimony failed to meet the Harper standard, no basis for reversal on this ground existed. Carruth v. State, 286 Ga. App. 431, 649 S.E.2d 557 (2007) (decided under former O.C.G.A. § 24-9-67).
Expert testimony on pancreatic injury.
- Trial court did not abuse the court's discretion in allowing the state's expert witness to testify to the cause of certain of the victim's injuries because the expert testified that one of the victim's injuries was caused by blunt force trauma without opining on how such trauma occurred; the opinion offered by the expert regarding the cause of the victim's pancreatic injury was one which jurors would not ordinarily be able to draw for themselves; i.e., the conclusion was beyond the ken of the average layman. Amador v. State, 310 Ga. App. 280, 713 S.E.2d 423 (2011) (decided under former O.C.G.A. § 24-9-67).
Pediatrician's opinion that a child had been molested was one of fact and one which the jurors would not ordinarily be able to draw for themselves, and was admissible even though the testimony indirectly involved the child's credibility. State v. Butler, 256 Ga. 448, 349 S.E.2d 684 (1986), aff'd, 181 Ga. App. 589, 353 S.E.2d 855 (1987) (decided under former O.C.G.A. § 24-9-67).
Defendant had no ground to contest the trial court's decision to allow a pediatrician to give opinion testimony to show that the victims' recitation of events was consistent with child abuse because the state proffered the pediatrician as an expert in the field of child sexual abuse, and with no objection from the defense, the trial court so qualified the pediatrician. Ledford v. State, 313 Ga. App. 389, 721 S.E.2d 585 (2011) (decided under former O.C.G.A. § 24-9-67).
Expert's opinion that child molested.
- Expert's testimony that in expert's opinion the child had been molested without comment as to whether the defendant was the molester was not testimony as to the ultimate issue in the case and was not objectionable. Karonen v. State, 205 Ga. App. 852, 424 S.E.2d 47, cert. denied, 205 Ga. App. 900, 424 S.E.2d 47 (1992) (decided under former O.C.G.A. § 24-9-67).
Child abuse syndrome.
- Trial court properly allowed a psychologist, who had examined a child molestation victim, to testify as to the psychologist's conclusion that the victim suffered from child abuse syndrome, since the testimony was not a conclusion that the victim was in fact abused and that issue was left to the jury to determine. Cooper v. State, 200 Ga. App. 560, 408 S.E.2d 797 (1991) (decided under former O.C.G.A. § 24-9-67).
Trial court properly admitted an expert's testimony as to child sexual abuse syndrome as: (1) it was helpful to the jury; and (2) laymen could not understand this syndrome without expert testimony, nor would laymen be likely to believe that a child who denied a sexual assault, or who was reluctant to discuss an assault, in fact had been assaulted; further, the expert offered no opinion as to whether the victims were being truthful, but left that determination for the jury. McCoy v. State, 278 Ga. App. 492, 629 S.E.2d 493 (2006) (decided under former O.C.G.A. § 24-9-67).
Child abuse accommodation syndrome.
- Expert testimony by a licensed psychologist regarding child abuse accommodation syndrome was properly admitted because the expert testified regarding how the victim's demeanor was consistent with having been sexually abused and not whether the victim was telling the truth. Haithcock v. State, 320 Ga. App. 886, 740 S.E.2d 806 (2013).
Testimony of burglary investigator.
- Testimony of a sheriff's department's burglary investigator as to whether, based on his training and experience, items are sometimes sold when items are stolen and whether the crime lab would process fingerprints taken from a burglary crime scene was admissible. Hestley v. State, 216 Ga. App. 573, 455 S.E.2d 333 (1995) (decided under former O.C.G.A. § 24-9-67).
Testimony on blood samples based on electrophoresis procedure.
- Expert witness may testify concerning identification of blood samples based on procedure known as electrophoresis, the statistical or mathematical probability of certain enzymes being found in the blood of the general population. Graham v. State, 168 Ga. App. 23, 308 S.E.2d 413 (1983) (decided under former O.C.G.A. § 24-9-67).
Evidence of source of DNA.
- Trial counsel was not ineffective in failing to make a meritless objection based on the state's expert's testimony as to the source of the DNA on a sock as the possible mechanisms by which epithelial cells ended up on a sock were beyond the ken of the average layman; since the evidence at issue was admissible, defendant's trial counsel was not required to object. Eley v. State, 266 Ga. App. 45, 596 S.E.2d 660 (2004), overruled on other grounds by State v. Burns, 829 S.E.2d 367, 2019 Ga. LEXIS 400 (Ga. 2019) (decided under former O.C.G.A. § 24-9-67).
Expert testimony as to the practices of an industry is admissible. Dan Gurney Indus., Inc. v. Southeastern Wheels, Inc., 168 Ga. App. 504, 308 S.E.2d 637 (1983) (decided under former O.C.G.A. § 24-9-67).
Expert could rely on the Safety Code for Elevators and Escalators in forming the expert's opinion. Millar Elevator Serv. Co. v. O'Shields, 222 Ga. App. 456, 475 S.E.2d 188 (1996) (decided under former O.C.G.A. § 24-9-67).
Product liability action.
- Trial court did not abuse the court's discretion in allowing an expert witness to testify, pursuant to former O.C.G.A. § 24-9-67, in a truck owner's products liability action against a truck modifying company regarding an allegedly defective switch that was installed on the floorboard of the truck, as the expert testified that the expert had some knowledge of electrical systems, vehicle wiring, and in investigating electrical fires; accordingly, the expert's opinion that the origin of the fire was electrical and the expert's explanation as to the meaning of a flammability rating and the expert's testimony thereon was properly admitted. Cottrell, Inc. v. Williams, 266 Ga. App. 357, 596 S.E.2d 789 (2004) (decided under former O.C.G.A. § 24-9-67).
In an action for libel, there was no error in the admission of the testimony of a journalism professor who testified as to certain generally recognized minimum standards in journalism and then stated the professor's opinion that the conduct described in a hypothetical question did not meet these standards. News Publishing Co. v. DeBerry, 171 Ga. App. 787, 321 S.E.2d 112 (1984), cert. denied, 471 U.S. 1053, 105 S. Ct. 2112, 85 L. Ed. 2d 477 (1985) (decided under former O.C.G.A. § 24-9-67).
Testimony of police officer on cocaine use admissible.
- Knowledge of the amount of crack cocaine one would generally possess for personal use or the amount which might evidence distribution was not necessarily within the scope of the ordinary layman's knowledge and experience. Therefore, the testimony of a veteran police officer on the subject would have been properly admissible under former O.C.G.A. § 24-9-67. Davis v. State, 200 Ga. App. 44, 406 S.E.2d 555 (1991) (decided under former O.C.G.A. § 24-9-67).
Police officer's opinion testimony that the amount of cocaine seized in the execution of a search warrant upon defendant's residence would typically be intended for distribution by the defendant rather than for the defendant's personal use was properly admissible. Wise v. State, 257 Ga. App. 211, 570 S.E.2d 656 (2002) (decided under former O.C.G.A. § 24-9-67).
Unqualified testimony of a police officer offered to show intent to distribute cocaine, based on the amount of cocaine and the officer's knowledge of defendant, was not competent evidence of an intent to distribute. Stephens v. State, 219 Ga. App. 881, 467 S.E.2d 201 (1996) (decided under former O.C.G.A. § 24-9-67).
Crime lab chemist qualified regarding street value of drugs.
- It was not error for the trial court to permit the state expert, a crime laboratory chemist, to testify concerning the "street value" of confiscated drugs, where the chemist testified that the chemist had accumulated knowledge of the street value of cocaine as a result of the chemist's experience over years of comparing the prices paid by undercover officers during their undercover purchases with that which was supplied to the chemist for analysis. Robinson v. State, 203 Ga. App. 759, 417 S.E.2d 404, cert. denied, 203 Ga. App. 907, 417 S.E.2d 404 (1992) (decided under former O.C.G.A. § 24-9-67).
Although a print card was not admitted as a business record, it was relevant as the basis for an expert's conclusion that defendant's print matched that taken from the victim's vehicle; despite defendant's hearsay objection, the expert's testimony connected defendant to the crime, and the admissibility of the expert's inculpatory testimony did not depend upon the admission of the print. Roebuck v. State, 277 Ga. 200, 586 S.E.2d 651 (2003) (decided under former O.C.G.A. § 24-9-67).
Opinion of police officer on auto accident.
- Investigating officer's opinion testimony regarding the sequence of events involved in a vehicle collision is admissible evidence as a police officer with investigative experience on automobile collisions is an expert who may testify as to the cause of an accident the officer investigated. Bennett v. Mullally, 263 Ga. App. 215, 587 S.E.2d 385 (2003), overruled on other grounds by Willis v. State, 304 Ga. 686, 820 S.E.2d 640, 2018 Ga. LEXIS 685 (2018) (decided under former O.C.G.A. § 24-9-67).
Officer is an expert on narcotics investigations.
- Arresting officer should have been qualified as an expert in "narcotics investigation"; although the trial court allowed the officer's testimony over objection. Davis v. State, 209 Ga. App. 572, 434 S.E.2d 132 (1993) (decided under former O.C.G.A. § 24-9-67).
Trial court did not abuse the court's discretion during the defendant's trial for possession of cocaine with the intent to distribute in allowing the arresting officer to testify as an expert witness on the issue of the defendant's intent to distribute crack cocaine because the officer had over 900 hours of specialized training as a narcotics officer, was familiar with how crack cocaine was typically packaged and sold, and had made numerous drug-related arrests, at least 50 of which involved crack cocaine. Further, the officer's testimony was relevant to the issue of whether the defendant possessed the cocaine with the intent to distribute the cocaine and was within the scope of the officer's expertise. Thomas v. State, 321 Ga. App. 214, 741 S.E.2d 298 (2013).
Officer's testimony on effects of alcohol on body.
- At the time of a defendant's driving under the influence (DUI) trial, the arresting officer had over four years of law enforcement experience, had been trained in DUI detection and field sobriety testing, and had been involved in over 100 DUI arrests. Based on the officer's training and experience, the officer was qualified to testify about the effects of alcohol consumption on the body. Lanwehr v. State, 265 Ga. App. 359, 593 S.E.2d 897 (2004) (decided under former O.C.G.A. § 24-9-67).
Dock signals expert.
- Trial court did not err in permitting witness to testify as an expert for procedures where hand signals or sight alone is insufficient in a personal injury action brought by longshoreman against state port authority. Georgia Ports Auth. v. Hutchinson, 209 Ga. App. 726, 434 S.E.2d 791 (1993) (decided under former O.C.G.A. § 24-9-67).
Highway signal engineer.
- Trial court did not abuse court's discretion in permitting a Department of Transportation engineer, qualified as a signal engineer, to testify whether the state was negligent in designing an intersection and signal timing at the intersection. Fouts v. Builders Transp., Inc., 222 Ga. App. 568, 474 S.E.2d 746 (1996) (decided under former O.C.G.A. § 24-9-67).
Testimony by polygraph examiner.
- Trial court did not err by allowing a polygraph examiner to testify that the defendant showed deception to questions concerning an armed robbery because the defendant, by stipulation, voluntarily consented to admission of the polygraph test results. Therefore, the defendant agreed to the admission of the examiner's opinion testimony concerning the polygraph examination, and the trial court did not err by overruling the defendant's objection to the qualifications of the examiner, or by allowing the examiner to testify as an expert concerning the polygraph test which the examiner administered on the defendant. Jones v. State, 309 Ga. App. 886, 714 S.E.2d 590 (2011) (decided under former O.C.G.A. § 24-9-67).
Fire marshal's testimony regarding arson.
- After being qualified as an expert witness, the fire marshal's testimony that the fire at the victims' residence was intentionally set did not invade the province of the jury in deciding whether the defendant had committed arson because the testimony did not address other elements of the crime of arson or directly implicate the defendant as the perpetrator of that crime; and the conclusion that the fire was intentionally set was not one jurors would ordinarily be able to draw for themselves. Saffold v. State, 298 Ga. 643, 784 S.E.2d 365 (2016)(decided under former O.C.G.A. § 24-9-67).
Failure to identify expert before hearing not grounds to exclude testimony.
- In a child deprivation hearing, a parent's claim that the trial court erred by allowing the state to call an expert witness without identifying the expert or producing the medical records in advance of the hearing was meritless because: (1) the parent's discovery request did not ask the state to identify each person whom the state expected to call as an expert witness at trial; and (2) the parent did not show prejudice from the lack of any additional information other than a broad assertion of insufficient time to prepare for the hearing. In the Interest of A.A., 293 Ga. App. 471, 667 S.E.2d 641 (2008) (decided under former O.C.G.A. § 24-9-67).
Defendant was not entitled to a new trial due to ineffective assistance of trial counsel for failure to present the testimony of an expert witness who could have established that, based upon the video, the defendant could not have inflicted the muzzle wound to the victim's right leg and that the victim accidentally shot the victim's own leg because the jury was able to determine for itself whether the defendant was ever close enough to the victim to cause a muzzle contact wound; and it was undisputed that the shot to the victim's leg was not the fatal wound. Mosby v. State, 300 Ga. 450, 796 S.E.2d 277 (2017).
Failure to retain crime scene reconstruction or firearms expert.
- Defendant was not entitled to a new trial due to ineffective assistance of trial counsel for failure to consult with or retain a crime scene reconstruction or firearms expert to explain the events the video portrayed because the jury could draw its own conclusions about the events shown on the video; the defendant failed to show that the testimony of an expert witness with respect to what the expert observed on the video would have been admissible or that the jury would have accepted the expert's testimony over what the jury observed; and, even if admissible, the jurors could have disregarded the expert's testimony about what the expert saw in the video if it conflicted with what the jurors saw for themselves. Mosby v. State, 300 Ga. 450, 796 S.E.2d 277 (2017).
Expert testimony not objectionable.
- Trial court did not err in denying a defendant's motion for a new trial based on the ineffective assistance of counsel in failing to object to an expert's opinion testimony because the record did not support the defendant's argument that the expert's testimony was objectionable; the expert's testimony was limited to describing how the expert and doctors in the medical community generally performed genital examinations of female patients and did not touch on whether either the defendant or the victim was telling the truth on whether the defendant committed aggravated sexual battery, and the expert's testimony regarding the typical medical examination of a preadolescent girl's genitals was relevant to the issues raised by the defendant's defense. Lee v. State, 300 Ga. App. 214, 684 S.E.2d 348 (2009) (decided under former O.C.G.A. § 24-9-67).
Expert testimony on interviewing techniques in child abuse case not improperly restricted.
- Trial court did not improperly restrict the testimony of the defendant's expert because the expert was permitted to testify at length on the propriety and effect of interviewing techniques in child sexual abuse cases; the defendant did not point out how the trial court's decision to sustain the state's objection to the expert's statement unfairly restricted the expert's testimony when the expert went on to provide the expert's criticisms of how the victim's interview was conducted. Rayner v. State, 307 Ga. App. 861, 706 S.E.2d 205 (2011) (decided under former O.C.G.A. § 24-9-67).
Testimony by expert on geo-cell phone analytics.
- Testimony by the state's expert witness on geo-cell phone analytics was admissible as the defendant could not affirmatively show that the alleged error in admitting the evidence probably affected the outcome below and, thus, constituted plain error because the expert's testimony was used to indicate how the police were able to determine that, on the day of the murder - but the day before the victim's body was disposed of by being burned - the defendant's cell phone was located about 14 miles from where the victim's burned body was found; and ample evidence actually placed the defendant at the murder scene and the location where the defendant and an individual attempted to cover up the crime. Jones v. State, 299 Ga. 40, 785 S.E.2d 886 (2016).
2. Opinions Inadmissible
Testimony was inadmissible as expert testimony in the following cases.
- See Wylly v. Gazan, 69 Ga. 506 (1882) (meaning of "more or less" in deed) (decided under former Code 1882, § 3868); Central R.R. v. DeBray, 71 Ga. 406 (1883) (whether employees were required to get on or off moving train) (decided under former Code 1882, § 3868); Carter v. Carter Elec. Co., 156 Ga. 297, 119 S.E. 737 (1923) (damage to business from use of similar name by competitor) (decided under former Civil Code 1910, § 5876); Davies v. Blasingame, 177 Ga. 450, 170 S.E. 477 (1933) (soundness of property title) (decided under former Code 1933, § 38-1710); United States v. Roberts, 192 F.2d 893 (5th Cir. 1951) (continuing total disability a matter of law and fact) (decided under former Code 1933, § 38-1710).
Trial court properly granted summary judgment in favor of a drug store in a suit brought by the parents of a teenager who died while huffing butane for wrongful death and in a suit brought by the parents of two other teens who were injured when: the teens assumed the risk; the expert's affidavit presented by the parents was not based on personal knowledge from interviewing the teens, and was conclusory and speculative; to the extent that the expert's affidavit fit within former O.C.G.A. § 24-9-67, the expert's generalizations about the beliefs of adolescents about death or the propensity of adolescents to exercise poor judgment and behave irresponsibly were not appropriate yardsticks for assessing the minors' knowledge of the risk; the parents' claim that the drug store knew that the teens were going to misuse the butane was based on hearsay; and the parents' public policy claims were rejected as O.C.G.A. § 16-13-90 created a list of dangerous substances not to be sold to minors, butane was not on the list, and any change in the law had to be legislatively enacted. Garner v. Rite Aid of Ga., Inc., 265 Ga. App. 737, 595 S.E.2d 582 (2004) (decided under former O.C.G.A. § 24-9-67).
In a negligence and premises liability action, an administrator's expert affidavit regarding the foreseeability of a shooting of the decedent, a licensee, on the premises was inadmissible as there was no need for expert testimony to determine whether ordinary care was exercised in running the premises' business; moreover, because the evidence showed that there had never been an accidental shooting of one hunter by another on the premises, no basis existed for holding that the owners or operator should have foreseen that a third party would come onto the property and illegally shoot at a target which the third party could not identify. Hadden v. ARE Props., LLC, 280 Ga. App. 314, 633 S.E.2d 667 (2006) (decided under former O.C.G.A. § 24-9-67).
Trial court did not abuse the court's discretion in refusing to admit the testimony of a defendant's expert because the mistake charged to an arresting officer in administering an alco-sensor test too soon after the officer first stopped the defendant would not have affected the test result to which the arresting officer testified since the defendant admitted that defendant had been drinking, and the trial court admitted only the officer's testimony that the alco-sensor produced a positive result. Oliver v. State, 294 Ga. App. 299, 669 S.E.2d 162 (2008) (decided under former O.C.G.A. § 24-9-67).
Opinion going to matter of ultimate fact.
- Medical expert witness may give the expert's opinion as to the cause of an injury, but if the cause of the injury constituted the ultimate issue of fact to be determined by the fact finding tribunal, this opinion was not absolutely binding on such tribunal. Lockheed Aircraft Corp. v. Marks, 88 Ga. App. 167, 76 S.E.2d 507 (1953), overruled on other grounds, Fowler v. City of Atlanta, 116 Ga. App. 352, 157 S.E.2d 306 (1967) (decided under former Code 1933, § 38-1710).
Whether or not an attorney at law may qualify and testify as an expert witness as to what the law is and who has title and owns property as found by the attorney from examination of title records was a part of the ultimate fact to be decided by the jury. Bishop v. Lamkin, 221 Ga. 687, 146 S.E.2d 772 (1966) (decided under former Code 1933, § 38-1710).
Trial court did not err in refusing to permit a mother's expert to opine that a son's murder was foreseeable because it was within the discretion of the trial court to determine that no expert testimony on the question of foreseeability was required; the jury in this case, having heard evidence of numerous prior criminal acts that occurred in or around the complex, was capable of deciding the question of foreseeability without expert testimony on the ultimate issue. Raines v. Maughan, 312 Ga. App. 303, 718 S.E.2d 135 (2011), cert. denied, No. S12C0436, 2012 Ga. LEXIS 270 (Ga. 2012) (decided under former O.C.G.A. § 24-9-67).
Expert testimony on credibility of witness.
- If the characteristic of a witness attacked does not involve some organic or mental disorder or some impairment of the mental or physical faculties by injury, disease, or otherwise, or if there has been insufficient observation by the expert, expert testimony is usually excluded. Jones v. State, 232 Ga. 762, 208 S.E.2d 850 (1974) (decided under former Code 1933, § 38-1710).
Trial court erred by allowing a state's expert to testify, over the defendant's objection, that the expert did not believe the victim made up the allegations against the defendant, as such was an ultimate issue of fact, and nothing suggested that the determination of the victim's credibility was beyond the ken of the jurors; thus, to the extent that Smith v. State, 257 Ga. App. 88, 570 S.E.2d 400 (2002), allowed an expert to give an opinion on a witness's credibility or to express an opinion on the ultimate issue of defendant's guilt to rehabilitate the credibility of a witness whose veracity was attacked, it was overruled. Patterson v. State, 278 Ga. App. 168, 628 S.E.2d 618 (2006) (decided under former O.C.G.A. § 24-9-67).
Expert testimony on transference theory.
- Trial court's refusal to admit eyewitness expert testimony was supported by extensive corroborating evidence because there was no factual basis for allowing testimony regarding the potential for misidentification based on transference theory; the defendant presented no evidence indicating that the victim saw or could have seen any other person at the time the instant offenses took place. Cannon v. State, 310 Ga. App. 262, 712 S.E.2d 645 (2011) (decided under former O.C.G.A. § 24-9-67).
Opinion based on out-of-court evidence.
- Medical expert does not have the right to give in evidence an opinion based on information which the expert has derived from private conversations with third parties. Moore v. State, 221 Ga. 636, 146 S.E.2d 895 (1966) (decided under former Code 1933, § 38-1710).
Trial court erred in admitting a treating physician's opinions which were predicated in part on the opinions of other health care providers which were not admitted into evidence. Southern Bell Tel. & Tel. Co. v. Franklin, 196 Ga. App. 474, 396 S.E.2d 514 (1990) (decided under former O.C.G.A. § 24-9-67).
Witness invaded province of jury.
- Expert witness's testimony that the childhood maltreatment syndrome or abused child syndrome was the "manner" in which the fatal injuries occurred, and that the fatal injuries occurred "in the process" of the childhood maltreatment syndrome, constituted the expert's opinion that the fatal injuries in fact resulted from child abuse. Accordingly, as the jurors had the ability to reach this conclusion personally, the trial court erred by allowing the expert witness's testimony. McCartney v. State, 262 Ga. 156, 414 S.E.2d 227 (1992), overruled on other grounds, 287 Ga. 881, 700 S.E.2d 394 (2010) (decided under former O.C.G.A. § 24-9-67).
When testimony is not based on an expert opinion and is mere speculation, it is worthless and the trial court does not err in striking the testimony from the record. Gould v. State, 168 Ga. App. 605, 309 S.E.2d 888 (1983) (decided under former O.C.G.A. § 24-9-67); Welborn v. State, 174 Ga. App. 853, 331 S.E.2d 890 (1985);(decided under former O.C.G.A. § 24-9-67).
When an expert did not present sufficient evidence to show a relevant point, given lack of support for the expert's opinion, the lower court did not abuse the court's discretion in excluding the expert's testimony. Cromer v. Mulkey Enters., 254 Ga. App. 388, 562 S.E.2d 783 (2002) (decided under former O.C.G.A. § 24-9-67).
When differing ultimate conclusions of physicians as to whether a doctor-patient relationship existed evinced no more than a difference of nonmedical opinion between witnesses who happened to be physicians, those conclusions were neither admissible nor probative as expert medical testimony. Clanton v. Von Haam, 177 Ga. App. 694, 340 S.E.2d 627 (1986) (decided under former O.C.G.A. § 24-9-67).
Psychiatrist's reliance on psychologist's test results.
- To the extent the state's psychiatric expert relied upon the opinion of another psychologist expert not before the court, the expert's testimony was inadmissible hearsay without probative value even in the absence of an objection. Brown v. State, 206 Ga. App. 800, 427 S.E.2d 9 (1992) (decided under former O.C.G.A. § 24-9-67).
Psychologist's opinion irrelevant.
- State's motion in limine seeking to exclude the testimony of a defendant's psychologist was properly granted as the defendant claimed that defendant shot the victim in self-defense; the defendant's psychological state was irrelevant. Lott v. State, 281 Ga. App. 373, 636 S.E.2d 102 (2006) (decided under former O.C.G.A. § 24-9-67).
School counselor's opinion.
- Admission of a school counselor's opinion that a child had been molested based on the child's behavior and demeanor during the counselor's interview of the child was reversible error. Hilliard v. State, 226 Ga. App. 478, 487 S.E.2d 81 (1997) (decided under former O.C.G.A. § 24-9-67).
Medical examiner's opinion on defendant's demeanor admissible.
- Trial court did not err in allowing the testimony of the deputy medical examiner in which the examiner related observations of the defendant during an interview of the defendant because the examiner stated the general observation of the defendant's demeanor upon being told that the defendant's child had died. Smith v. State, 290 Ga. 428, 721 S.E.2d 892 (2012) (decided under former O.C.G.A. § 24-9-67).
Opinion as to alcohol content drop in dead person.
- Question propounded to a forensic chemist concerning whether or not the fact that a person might have died and it had been some days before the person was found would in any way decrease the alcohol content of the victim's body was proper under former O.C.G.A. § 24-9-67 (see now O.C.G.A. § 24-9-67). Cameron v. State, 256 Ga. 225, 345 S.E.2d 575 (1986) (decided under former O.C.G.A. § 24-9-67).
Physician's opinion of "rape."
- Allowing any question and answer of a physician who examined the victim of an alleged rape which would involve the physician's opinion stated in the physician's report that "this is rape" constituted reversible error. Nichols v. State, 177 Ga. App. 689, 340 S.E.2d 654 (1986) (decided under former O.C.G.A. § 24-9-67).
Physician's opinion of doctor-patient relationship.
- No professional skill or specialized medical knowledge was necessarily required to resolve the issue whether a doctor-patient relationship existed since the initial creation of such a relationship was well within the comprehension of the average layman, and a physician's affidavit on this issue was neither probative nor admissible as expert medical testimony. Minster v. Pohl, 206 Ga. App. 617, 426 S.E.2d 204 (1992) (decided under former O.C.G.A. § 24-9-67).
Ophthalmologist testimony in DUI case inadmissible.
- Trial court did not err in not allowing an ophthalmologist to testify as an expert that a DUI defendant had two surgeries in the past, which could have affected the defendant's performance on walk-and-turn and one-leg-stand tests. The witness had no personal knowledge of the surgery in question or of the medical records referring to the surgeries; moreover, the defendant's live-in companion was permitted to testify at length regarding the defendant's medical issues arising from the surgery and its effect on the defendant's ability to walk normally at the time of the arrest. Aal v. State, 290 Ga. App. 252, 659 S.E.2d 609 (2008) (decided under former O.C.G.A. § 24-9-67).
Romberg sobriety test subject to Harper standard.
- Admissibility of the Romberg test is subject to the Harper standard as the significance of eyelid tremors or an individual's internal clock, how they may be affected by the consumption of alcohol, and particularly whether a range of five seconds above or below the actual passage of 30 seconds establishes impairment, are not matters of common sense or experience, nor are they obvious to the average lay observer. Mitchell v. State, 301 Ga. 563, 802 S.E.2d 217 (2017), overruled on other grounds by State v. Turnquest, 305 Ga. 758, 827 S.E.2d 865 (2019).
Medical causation not within scope of psychological expertise.
- It is a matter within the sound discretion of the trial judge as to whether a witness has such learning and experience in a particular art, science or profession as to entitle the witness to be deemed prima facie an expert; therefore, when a neuropsychologist testified to the specific chemical which caused organic brain damage, the trial court did not abuse the court's discretion in striking portions of the affidavit of the psychologist, because medical causation is not a subject within the scope of psychological expertise. Chandler Exterminators, Inc. v. Morris, 262 Ga. 257, 416 S.E.2d 277 (1992) (decided under former O.C.G.A. § 24-9-67).
Officer's testimony on marijuana test results.
- Officer's testimony regarding officer's training and experience with "ontrack system" urine specimen analysis for the presence of tetrahydrocannabinol was insufficient foundation for the admission of the test results. Hubbard v. State, 207 Ga. App. 703, 429 S.E.2d 123 (1993) (decided under former O.C.G.A. § 24-9-67).
Hair analysis results cannot be used to make positive identification of an individual. Hudson v. State, 166 Ga. App. 660, 305 S.E.2d 409 (1983) (decided under former O.C.G.A. § 24-9-67).
Reconstruction of accident.
- Expert accident reconstructionist was not qualified to render an opinion as to which of two impacts caused plaintiff's injury. Johnson v. Knebel, 267 Ga. 853, 485 S.E.2d 451 (1997) (decided under former O.C.G.A. § 24-9-67).
False confession theory.
- Trial court did not abuse the court's discretion or violate the defendant's Sixth and Fourteenth Amendment rights by excluding expert testimony about false confessions; the Georgia Supreme Court found that the false confession theory was not reliable and had not yet reached a verifiable stage of scientific certainty. Crawford v. State, 283 Ga. App. 645, 642 S.E.2d 335 (2007) (decided under former O.C.G.A. § 24-9-67).
Trial court did not improperly exclude testimony from the defendant's proffered expert witness on police interrogation tactics resulting in false confessions, as such theory had not reached a verifiable stage of scientific certainty, and because the issue of whether the defendant's inculpatory statements were the results of threats or coercion was a matter the jury could discern for itself. Lyons v. State, 282 Ga. 588, 652 S.E.2d 525 (2007), overruled on other grounds, Garza v. State, 2008 Ga. LEXIS 865 (Ga. 2008) (decided under former O.C.G.A. § 24-9-67).
Airport operations manager failed to demonstrate qualifications as an expert witness to express an opinion regarding the acceptable and safe number of pounds of force of closing pressure for automatic doors on shuttle trains, or to present a factual predicate for a lay opinion. Saltis v. Benz, 243 Ga. App. 603, 533 S.E.2d 772 (2000) (decided under former O.C.G.A. § 24-9-67).
3. Witness Qualified as Expert
Automobile mechanic.
- Contention that testimony of witness qualified as an expert was erroneously admitted for the reason that the witness had testified that the witness did not see the car before impact, and therefor could not testify as to the car's value before the car was damaged, was without merit since the witness actually repaired the car, and was not only a mechanic, but had long experience in buying and selling cars of the same type and model. Hill v. Kirk, 78 Ga. App. 310, 50 S.E.2d 785 (1948) (decided under former Code 1933, § 38-1710).
Electrical engineer.
- When a witness was an electrical engineer of 31 years experience, and the engineer's opinions were based on proven facts, the opinions were admissible. Little v. Georgia Power Co., 205 Ga. 51, 52 S.E.2d 322 (1949) (decided under former Code 1933, § 38-1710).
Forensic analyst of telephone records.
- Trial court did not abuse the court's discretion in qualifying the forensic analyst as an expert or in admitting the forensic analyst's testimony regarding the telephone calls between those involved in the drug transactions because the forensic analyst was examined extensively on specific training as an analyst of telephone records and the specialized computer programs used in law enforcement data compilation, and because the correlation and analysis of large numbers of cellular telephone calls, using specialized computer programs and other tools and resources specific to forensic analysis, was a matter beyond the ken of the average layperson. Maldonado v. State, 325 Ga. App. 41, 752 S.E.2d 112 (2013).
Building inspector who held a license in the inspector's individual name at the time of conducting an inspection qualified as an expert; the fact that the inspector was unaware that the inspector was also required to get a license in the name under which the inspector conducted business did not prevent the inspector's qualification as an expert. Williamson v. Harvey Smith, Inc., 246 Ga. App. 745, 542 S.E.2d 151 (2000) (decided under former O.C.G.A. § 24-9-67).
A Ph. D. in entomology was not required to have a pest control operator's license before being qualified to testify in an action arising from termite infestation of property. Dayoub v. Yates-Astro Termite Pest Control Co., 239 Ga. App. 578, 521 S.E.2d 600 (1999) (decided under former O.C.G.A. § 24-9-67).
Specialist in obstetrics and gynecology.
- In a prosecution for rape, a physician may offer the physician's opinion as to what caused the tear in the victim's vagina over an objection that the physician's expertise to offer such an opinion has not been established, where the physician is duly qualified as a specialist in obstetrics and gynecology and testifies that one of the physician's duties at the medical center where the physician worked was to examine rape victims. Holt v. State, 147 Ga. App. 186, 248 S.E.2d 223 (1978) (decided under former Code 1933, § 38-1710).
Qualified medical expert with a first-hand knowledge of the material facts is well within permissible bounds in stating the expert's opinion and inferences concerning the existence and cause of a medical condition. McGuire v. Davis, 437 F.2d 570 (5th Cir. 1971) (decided under former Code 1933, § 38-1710).
Practicing physician was an expert witness on sanity. Petty v. Folsom, 229 Ga. 477, 192 S.E.2d 246 (1972) (decided under former Code 1933, § 38-1710).
Specialists in cardiac physiology.
- Two doctors who specialized in cardiac physiology were qualified to testify about the effects on a patient of a heart medication a doctor gave to a patient, and the appellate court reversed the trial court's ruling that the doctors could not testify and the court's judgment dismissing the spouse's claims against a pharmaceutical manufacturer that produced the medication, alleging strict products liability and negligent failure to warn. Bryant v. Hoffmann-La Roche, Inc., 262 Ga. App. 401, 585 S.E.2d 723 (2003) (decided under former O.C.G.A. § 24-9-67).
Investigator testifying as an expert.
- In an aggravated assault case, it was permissible for an investigator, testifying as an expert, to state that based on the investigator's experience, persons who suffered from cuts or stab wounds often did not remember being stabbed. This was a conclusion that was beyond the ken of the average layperson; even if the investigator's testimony was somewhat based upon hearsay, the opinion was mainly derived from the investigator's many years of professional experience. Jackson v. State, 291 Ga. App. 287, 661 S.E.2d 665 (2008) (decided under former O.C.G.A. § 24-9-67).
Officer properly qualified as expert witness in drug possession and distribution.
- In a prosecution for possession of cocaine with intent to distribute (O.C.G.A. § 16-13-30(b)), as the arresting officer testified to making 35 to 40 drug-related arrests, about half of which were for possession with intent to distribute, the trial court did not abuse the court's discretion in qualifying the officer as an expert witness in drug possession and distribution. Hight v. State, 293 Ga. App. 254, 666 S.E.2d 678 (2008) (decided under former O.C.G.A. § 24-9-67).
Any error waived by failure to object.
- Pro se defendant's claim that the trial court improperly admitted lay testimony on blood splatters was rejected as defendant failed to object to the admission of the lay opinions at trial; further, in light of the overwhelming evidence of defendant's guilt, any error was harmless. Swain v. State, 268 Ga. App. 135, 601 S.E.2d 491 (2004) (decided under former O.C.G.A. § 24-9-67).
RESEARCH REFERENCES10A Am. Jur. Pleading and Practice Forms, Expert and Opinion Evidence, § 2.
Criminal Law - The Battered Woman Defense, 34 POF2d 1.
Proof of Identification of Bite Marks, 75 POF3d 317.
Defense Use of Economist, 31 Am. Jur. Trials 287.
C.J.S.- 32 C.J.S., Evidence, §§ 593, 594, 607, 608, 732, 733, 737 et seq., 758 et seq.
ALR.
- Opinion or expert evidence as to whether pain is real or feigned, or as to its severity, 28 A.L.R. 362; 97 A.L.R. 1284.
Dental condition as subject of expert testimony; qualification of witness as expert, 49 A.L.R. 666.
Competency of physician or surgeon as an expert witness as affected by the fact that he is not a specialist, 54 A.L.R. 860.
Admissibility of opinion of medical expert as affected by his having heard the person in question give the history of his case, 65 A.L.R. 1217; 51 A.L.R.2d 1051.
Right of witness to give summary based on inspection of number of documents, 66 A.L.R. 1206.
Constitutionality of statutes relating to expert witnesses, 71 A.L.R. 1017.
Expert testimony to interpret or explain or draw conclusion from photograph, 77 A.L.R. 946.
Testimony of expert witness as to ultimate fact, 78 A.L.R. 755.
Right of witness to state his opinions or conclusion, based on examination of books and accounts, as to solvency or insolvency, 81 A.L.R. 1431.
Hypothetical questions in case of expert witness who has personal knowledge or observation of facts, 82 A.L.R. 1338.
Right of expert to give an opinion based on testimony of other witnesses not incorporated in a hypothetical question, 82 A.L.R. 1460.
Opinion evidence directly as to the ultimate question of the amount of damage to property, 86 A.L.R. 1449.
Opinion evidence as to speed of automobile, 94 A.L.R. 1190.
Testimony of expert predicated in whole or in part upon opinions, inferences, or conclusions of others, 98 A.L.R. 1109.
Right of expert witness to testify as to "total disability" or other physical condition contemplated by specific provision of insurance policy, 111 A.L.R. 603.
Necessity of expert evidence to warrant submission to jury of issue as to permanency of injury or as to future pain and suffering, or to sustain award of damages on that basis, 115 A.L.R. 1149.
Opinion or expert testimony as to materiality of misrepresentation in application for insurance or as to increase of risk or as to practice or usage of insurance companies regarding acceptance or rejection of certain class of risk, 135 A.L.R. 411.
Sufficiency of expert evidence to establish causal relation between accident and physical condition or death, 135 A.L.R. 516.
Opinion or expert evidence regarding loss or time of loss within fidelity bond, 135 A.L.R. 1145.
Opinion evidence as to distance within which automobile can be stopped, 135 A.L.R. 1404.
Admissibility of opinion evidence as to cause of death, disease, or injury, 136 A.L.R. 965; 66 A.L.R.2d 1082.
Expert or opinion evidence regarding lights on automobiles and the distance at which lights will "pick up" an object, 137 A.L.R. 753.
Necessity of expert evidence to support an action for malpractice against a physician or surgeon, 141 A.L.R. 5; 81 A.L.R.2d 597.
Safety of condition, place, or appliance as proper subject of expert or opinion evidence in tort actions, 146 A.L.R. 5; 62 A.L.R.2d 1426.
Probative value of opinion testimony of handwriting experts that document is not genuine, opposed to testimony of persons claiming to be attesting witnesses, 154 A.L.R. 649.
Comments in judge's charge to jury disparaging expert testimony, 156 A.L.R. 530.
Review on appeal of decision of trial court as to qualification or competency of expert witnesses, 166 A.L.R. 1067.
Testimony of physician based on information from third persons regarding physical condition or symptoms of person in question, 175 A.L.R. 274.
Unaccepted offer for purchase or sale of real property as evidence of value, 7 A.L.R.2d 781.
Proof of prospective earning capacity of student or trainee, or of its loss, in action for personal injury or death, 15 A.L.R.2d 418.
Expert evidence to identify gun from which bullet or cartridge was fired, 26 A.L.R.2d 892.
Necessity of expert testimony to show causal connection between medical treatment necessitated by injury for which defendant is liable and allegedly harmful effects of such treatment, 27 A.L.R.2d 1263.
Cross-examination of expert witness as to fees, compensation, and the like, 33 A.L.R.2d 1170.
Blood grouping tests, 46 A.L.R.2d 1000.
Admissibility of opinion evidence of lay witnesses as to diseases and physical condition of animals, 49 A.L.R.2d 932.
Chiropractor's competency as expert in personal injury action as to injured person's condition, medical requirements, nature and extent of injury, and the like, 52 A.L.R.2d 1384.
Admissibility, in homicide prosecution, of opinion evidence that death was or was not self-inflicted, 56 A.L.R.2d 1447.
Use of medical or other scientific treatises in cross-examination of expert witnesses, 60 A.L.R.2d 77.
Admissibility of evidence as to manner or ease of firing gun, in civil action involving issue of accidental death or suicide, 63 A.L.R.2d 1150.
Right of physician, notwithstanding physician-patient privilege, to give expert testimony based on hypothetical question, 64 A.L.R.2d 1056.
Admissibility of opinion evidence as to point of impact or collision in motor vehicle accident case, 66 A.L.R.2d 1048.
Qualifications of chemist or chemical engineer to testify as to effect of poison upon human body, 70 A.L.R.2d 1029.
Propriety of hypothetical question to expert witness on cross-examination, 71 A.L.R.2d 6.
Admissibility of experimental evidence to determine chemical or physical qualities or character of material or substance, 76 A.L.R.2d 354.
Admissibility of experimental evidence as to explosion, 76 A.L.R.2d 402.
Qualification as expert to testify as to findings or results of scientific test to determine alcoholic content of blood, 77 A.L.R.2d 971.
Compelling expert to testify, 77 A.L.R.2d 1182; 66 A.L.R.4th 213.
Testing qualifications of expert witness, other than handwriting expert, by objective tests or experiments, 78 A.L.R.2d 1281.
Admissibility in wrongful death action of testimony of actuary or mathematician for purpose of establishing present worth of pecuniary loss, 79 A.L.R.2d 259.
Admissibility of testimony of actuary or mathematician as to present value of loss or impairment of injured person's general earning capacity, 79 A.L.R.2d 275.
Exclusion from courtroom of expert witnesses during taking or testimony in civil case, 85 A.L.R.2d 478.
Propriety and effect of instructions in civil case on the weight or reliability of medical expert testimony, 86 A.L.R.2d 1038.
Right to elicit expert testimony from adverse party called as witness, 88 A.L.R.2d 1186.
Expert or opinion evidence as to speed based on appearance or condition of motor vehicle after accident, 93 A.L.R.2d 287.
Trial court's appointment, in civil case, of expert witness, 95 A.L.R.2d 390.
Expert testimony as to modus operandi of criminals with respect to particular types of crimes, 100 A.L.R.2d 1433.
Person performing services as competent to testify as to their value, 5 A.L.R.3d 947.
Admissibility of expert evidence to decipher illegible document, 11 A.L.R.3d 1015.
Admissibility, in civil case, of expert evidence as to existence or nonexistence, or severity, of pain, 11 A.L.R.3d 1249.
Admissibility, in civil case, of expert or opinion evidence as to proposed witness's inability to testify, 11 A.L.R.3d 1360.
Admissibility of hearsay evidence as to comparable sales of other land as basis for expert's opinion as to land value, 12 A.L.R.3d 1064.
Necessity and admissibility of expert testimony as to credibility of witness, 20 A.L.R.3d 684.
Opinion testimony as to speed of motor vehicle based on skid marks and other facts, 29 A.L.R.3d 248.
Competency of general practitioner to testify as expert witness in action against specialist for medical malpractice, 31 A.L.R.3d 1163.
Locality rule as governing hospital's standard of care to patient and expert's competency to testify thereto, 36 A.L.R.3d 440.
Malpractice testimony: competency of physician or surgeon from one location to testify, in malpractice case, as to standard of care required of defendant practicing in another location, 37 A.L.R.3d 420.
Necessity of expert evidence to support action against hospital for injury to or death of patient, 40 A.L.R.3d 515.
Admissibility of physiological or psychological truth and deception test or its results to support physician's testimony, 41 A.L.R.3d 1369.
Medical malpractice: necessity and sufficiency of showing of medical witness's familiarity with particular medical or surgical technique involved in suit, 46 A.L.R.3d 275.
Admissibility of evidence of neutron activation analysis, 50 A.L.R.3d 117.
Necessity and sufficiency of expert evidence to establish existence and extent of physician's duty to inform patient of risks of proposed treatment, 52 A.L.R.3d 1084.
Admissibility on issue of sanity of expert opinion based partly on medical, psychological, or hospital records, 55 A.L.R.3d 551.
Modern status of rules regarding use of hypothetical questions in eliciting opinion of expert witness, 56 A.L.R.3d 300.
Necessity and effect, in homicide prosecution, of expert medical testimony as to cause of death, 65 A.L.R.3d 283.
Admissibility of testimony of coroner or mortician as to cause of death in homicide prosecution, 71 A.L.R.3d 1265.
Admissibility of expert medical testimony as to future consequences of injury as affected by expression in terms of probability or possibility, 75 A.L.R.3d 9.
Pleading and proof of law of foreign country, 75 A.L.R.3d 177.
Admissibility of opinion evidence as to employability on issue of disability in health and accident insurance and workers' compensation cases, 89 A.L.R.3d 783.
Admissibility of hypnotic evidence at criminal trial, 92 A.L.R.3d 442; 77 A.L.R.4th 927.
Competency of drug addict or user to identify suspect material as narcotic or controlled substance, 95 A.L.R.3d 978.
Admissibility and weight of voiceprint evidence, 97 A.L.R.3d 294.
Admissibility of expert medical testimony on battered child syndrome, 98 A.L.R.3d 306.
Necessity of expert testimony to show malpractice of architect, 3 A.L.R.4th 1023.
Admissibility and necessity of expert evidence as to standards of practice and negligence in malpractice action against attorney, 14 A.L.R.4th 170.
Admissibility of expert or opinion testimony on battered wife or battered woman syndrome, 18 A.L.R.4th 1153.
Admissibility of expert or opinion testimony concerning identification of skeletal remains, 18 A.L.R.4th 1294.
Admissibility and weight, in criminal case, of expert or scientific evidence respecting characteristics and identification of human hair, 23 A.L.R.4th 1199.
Unaccepted offer for purchase of real property as evidence of its value, 25 A.L.R.4th 571.
Unaccepted offer to sell or buy comparable real property as evidence of value of property in issue, 25 A.L.R.4th 615.
Unaccepted offer to sell or listing of real property as evidence of its value, 25 A.L.R.4th 983.
Emotional manifestations by victim or family of victim during criminal trial as ground for reversal, new trial, or mistrial, 31 A.L.R.4th 229.
Admissibility of testimony that bullet could or might have come from particular gun, 31 A.L.R.4th 486.
Admissibility of expert testimony as to modus operandi of crime - modern cases, 31 A.L.R.4th 798.
Propriety of cross-examining expert witness regarding his status as "professional witness", 39 A.L.R.4th 742.
Admissibility at criminal prosecution of expert testimony on battering parent syndrome, 43 A.L.R.4th 1203.
Admissibility of bare footprint evidence, 45 A.L.R.4th 1178.
Admissibility, at criminal prosecution, of expert testimony on reliability of eyewitness testimony, 46 A.L.R.4th 1047.
Admissibility of expert testimony as to appropriate punishment for convicted defendant, 47 A.L.R.4th 1069.
Right of independent expert to refuse to testify as to expert opinion, 50 A.L.R.4th 680.
Necessity of expert testimony to show standard of care in negligence action against insurance agent or broker, 52 A.L.R.4th 1232.
Compelling testimony of opponent's expert in state court, 66 A.L.R.4th 213.
Admissibility, in criminal cases, of evidence of electrophoresis of dried evidentiary bloodstains, 66 A.L.R.4th 588.
Admissibility of expert testimony that item of clothing or footgear belonged to, or was worn by, particular individual, 71 A.L.R.4th 1148.
Right of indigent defendant in state criminal case to assistance of fingerprint expert, 72 A.L.R.4th 874.
Necessity of expert evidence in proceeding for revocation or suspension of license of physician, surgeon, or dentist, 74 A.L.R.4th 969.
Admissibility of lie detector test results, or of offer or refusal to take test, in attorney disciplinary proceeding, 79 A.L.R.4th 576.
Admissibility, in criminal prosecution, of expert opinion allegedly stating whether drugs were possessed with intent to distribute - state cases, 83 A.L.R.4th 629.
Admissibility of expert opinion stating whether a particular knife was, or could have been, the weapon used in a crime, 83 A.L.R.4th 660.
Admissibility of testimony of expert, as to basis of his opinion, to matters otherwise excludible as hearsay - state cases, 89 A.L.R.4th 456.
Admissibility, in criminal prosecution, of expert opinion evidence as to "blood splatter" interpretation, 9 A.L.R.5th 369.
Cautionary instructions to jury as to reliability of, or factors to be considered in evaluating, voice identification testimony, 17 A.L.R.5th 851.
Necessity of expert testimony on issue of permanence of injury and future pain and suffering, 20 A.L.R.5th 1.
Admissibility of evidence of declarant's then-existing mental, emotional, or physical condition, under Rule 803(3) of Uniform Rules of Evidence and similar formulations, 57 A.L.R.5th 141.
Admissibility of expert testimony concerning domestic-violence syndromes to assist jury in evaluating victim's testimony or behavior, 57 A.L.R.5th 315.
Admissibility of expert testimony regarding questions of domestic law, 66 A.L.R.5th 135.
Qualification of nonmedical psychologist to testify as to mental condition or competency, 72 A.L.R.5th 529.
Admissibility of expert testimony regarding credibility of confession, 73 A.L.R.5th 581.
Admissibility of results of presumptive tests indicating presence of blood on object, 82 A.L.R.5th 67.
Admissibility of expert testimony regarding reliability of accused's confession where accused allegedly suffered from mental disorder or defect at time of confession, 82 A.L.R.5th 591.
Admissibility of expert and opinion evidence as to cause or origin of fire - modern civil cases, 84 A.L.R.5th 69.
Admissibility of expert and opinion evidence as to cause or origin of fire in criminal prosecution for arson or related offense - modern cases, 85 A.L.R.5th 187.
Admissibility of expert testimony on child sexual abuse accommodation syndrome (CSAAS) in criminal case, 85 A.L.R.5th 595.
Post-Daubert standards for admissibility of scientific and other expert evidence in state courts, 90 A.L.R.5th 453.
Admissibility and weight of voice spectrographic analysis evidence, 95 A.L.R.5th 471.
Admissibility and effect of evidence of electromagnetic fields generated by power lines, or public perception thereof, in action to value land or to recover for personal injury or property damage, 104 A.L.R.5th 503.
Admissibility and weight of fingerprint evidence obtained or visualized by chemical, laser, and digitally enhanced imaging processes, 110 A.L.R.5th 213.
Vertical gaze nystagmus test: Use in impaired driving prosecution, 117 A.L.R.5th 491.
Admissibility of ion scan evidence, 124 A.L.R.5th 691.
Admissibility and sufficiency of bite mark evidence as basis for identification of accused, 1 A.L.R.6th 657.
Qualification as expert to testify as to findings or results of scientific test concerning DNA matching, 38 A.L.R.6th 439.
Admissibility of computer forensic testimony, 40 A.L.R.6th 355.
Admissibility of evidence taken from vehicular Event Data Recorders (EDR), Sensing Diagnostic Modules (SDM), or "black boxes", 40 A.L.R.6th 595.
Reliability of scientific technique and its acceptance within scientific community as affecting admissibility, at federal trial, of expert testimony as to result of test or study based on such technique - modern cases, 105 A.L.R. Fed. 299.
Admissibility of expert or opinion evidence - Supreme court cases, 177 A.L.R. Fed. 77.
CHAPTER 8 HEARSAY Article 1 General Provisions.- For article, "Evidence," see 27 Ga. St. U.L. Rev. 1 (2011).
ARTICLE 1 GENERAL PROVISIONS
Law reviews.
- For article, "Evidence," see 53 Mercer L. Rev. 281 (2001). For article on the 2011 enactment of this article, see 28 Ga. St. U.L. Rev. 1 (2011).