Disclaimer: I am not a lawyer. This article is my informed opinion.
Courts in the United States have rules to exclude junk science and cranks posing as experts. At the federal level, experts are subject to what is called the “Daubert standard” defined by three Supreme Court cases: Daubert v. Merrell Dow Pharmaceuticals, General Electric Co. v. Joiner, and Kumho Tire Co. v. Carmichael. These decisions are incorporated in the Federal Rules of Evidence 702 and 703.
At the most basic level, the Court said that an expert must meet two criteria:
- the expert witness used generally accepted practices and standards and
- the expert witness was property credentialed.
Their testimony must meet additional standards of relevance and methodology.
The Supreme Court’s ruling sets up the following standards for relevance and reliability of expert testimony:
- whether the theory at issue can and has been tested,
- whether the theory has been subjected to peer review and publication,
- whether there is a known or potential error rate, and
- whether the theory has been generally accepted within the scientific community
Farrar v Obama
The “witness list” presented by Orly Taitz for the January 26 hearing of Farrar v. Obama includes two individuals, Dr. Ron Polland and Douglas Vogt; both have published papers in which they claimed expertise in forensic document analysis. Dr. Polland concluded that President Obama’s short form was created from images of other certificates (no actual physical certificate exists), and Mr. Vogt has said that the PDF copy of the long form birth certificate released by the White House is not a scan of any real document but rather something composed electronically. Both allege criminal fraud by the President and Hawaiian officials. Neither have any credentials as document experts.
The rule in Georgia
In 2005, the State of Georgia adopted tort reform that, among other things, established standards for expert testimony in civil cases similar to the Supreme Court’s standards in Daubert. Georgia law now essentially adopts the Federal Rules of Evidence 702 and 703 with minor differences in wording from Federal Rule 703. (Georgia has not adopted the entire Federal Rules of Evidence or the Federal Rules of Civil Procedure, so the context under which Rule 702 and 703 are applied is different.) The Georgia statute also states:
(f) It is the intent of the legislature that, in all civil cases, the courts of the State of Georgia not be viewed as open to expert evidence that would not be admissible in other states. Therefore, in interpreting and applying this Code section, the courts of this state may draw from the opinions of the United States Supreme Court in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993); General Electric Co. v. Joiner, 522 U.S. 136 (1997); Kumho Tire Co. Ltd. v. Carmichael, 526 U.S. 137 (1999); and other cases in federal courts applying the standards announced by the United States Supreme Court in these cases.
The Georgia statute also provides for an optional pre-trial hearing hearing to assess proposed expert testimony.
If Orly Taitz tries to present Polland and Vogt as expert witnesses I would expect an objection to be made by Obama’s attorney. There is also the issue of relevance. I cannot imagine anyone presenting a JPG or PDF image of a birth certificate as evidence at the hearing. If a birth certificate is presented, it will be on paper. Looking rules, I don’t see any chance that either Polland or Vogt will be allowed to testify as expert witnesses.
- Georgia’s New Expert Witness Rule: Daubert & More. Georgia Bar Journal
- Application of the Daubert challenge. HGExperts.com
- Georgia statute O.C.G.A. § 24-9-67.1
- Federal Rules of Evidence 702, 703.