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By: Alexia Roney
After a recent article in the Georgia Bar Journal, there is renewed interest in using experts to testify on ultimate issues under the protection of O.C.G.A. § 24-7-704. See Brett A. Adams, An Overview of Ultimate Issue Evidence, 25 Ga. Bar J. 19 (June 2020). As of January 1, 2013, expert testimony “otherwise admissible shall not be objectionable because it embraces an ultimate issue to be decided by the trier of fact” unless such testimony concerns the mental state or condition of an accused in a criminal proceeding. O.C.G.A. § 24-7-704. See generally State v. Orr, 305 Ga. 729, 729, 827 S.E.2d 892, 894 (2019). As noted by Mr. Adams, “the statute is exceedingly broad,” and the benefits to litigants are clear: juries value an expert’s opinion, often over their own.
Despite the statute’s breadth, though, there remain two significant limits on an expert’s testimony. Before reaching the ultimate issue, the proponent of the testimony must first run the gauntlet of O.C.G.A. § 24-7-702. Expert testimony is admissible only if “scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue….” O.C.G.A. § 24-7-702(b). The opinions must be “based upon conclusions drawn by the expert that the jury could not ordinary determine for themselves.” Clayton County v. Segrest, 333 Ga. App. 85, 90 775 S.E.2d 579, 584 (2015) (quotations omitted). The Georgia courts will not let a party use an expert to bolster their position on an ultimate issue where it is within the ken of the jury. See Pyatt v. State, 298 Ga. 742, 755, 784 S.E.2d 759, 771 (2016); State v. Butler, 256 Ga. 448, 454, 349 S.E.2d 684, 689 (1986).
Moreover, there is still one line that the expert cannot cross: the purview of the Court. Experts cannot give their opinions on legal matters, such as fault or proximate cause, even if expert testimony is needed. The expert cannot “merely tell the jury what result to reach and may not testify to the legal implications of conduct,” Segrest, 333 Ga. App. at 91, 775 S.E. 2d. at 585, or which party is “at fault.” Brown v. Tucker, 337 Ga.App. 704, 707, 788 S.E.2d 810, 815 (2016).
For those practicing in federal court, the limitations above are old friends. The Comments to the Federal Rules of Evidence 704 advise litigants that Rules 701 and 702 “stand ready” to exclude expert opinions which merely tell the jury what result to reach or phrased as inadequately explored legal criteria. Mr. Adams provides a helpful section outlining potential limitations to expert testimony despite O.C.G.A. § 24-7-704, 25 Ga. Bar J. at 22, but there is a dearth of Georgia law on point. As such, litigants in state court still must turn to federal case law before offering expert testimony on an ultimate issue. Not anything goes.
If you have questions or would like more information, please contact Alexia Roney at [email protected].