by David Kim

The Supreme Court of Georgia clarified that the diligence requirement for extraordinary motions for new trial operates differently when such motions rest on scientific developments rather than physical evidence or eyewitness testimony. Because the materiality of scientific advancements often becomes apparent only after new theories undergo testing, peer review, and community scrutiny, defendants cannot be compelled to file prematurely, i.e., before they can ascertain and prove that materiality, the Court instructed. Applying this framework, the Court vacated the trial court’s denial of an extraordinary motion in a Shaken Baby Syndrome (“SBS”) case and remanded for reconsideration.

Background

In 2003, Danyel Smith was convicted of felony murder and aggravated battery following the death of his two-month-old son, Chandler, based on an SBS diagnosis. The Georgia Supreme Court affirmed his convictions on direct appeal.

In 2021, Smith filed an extraordinary motion for a new trial arguing that medical understanding of infant brain injuries had dramatically evolved since his trial. His motion relied on an affidavit from Dr. Saadi Ghatan, chair of neurosurgery at Mount Sinai West and Mount Sinai Morningside, who opined that Chandler’s death resulted from pre-existing conditions stemming from birth complications rather than abuse. Ghatan cited Chandler’s acute fetal distress, prolonged labor, premature delivery via cesarean section with vacuum extraction, and prior seizures as causative factors. The motion also referenced position papers from the American Academy of Pediatrics reflecting shifts in how the medical community views infant head trauma diagnoses.

The trial court initially denied Smith’s motion without a hearing. On appeal, the Georgia Supreme Court vacated that ruling, concluding that Smith’s allegations, if proven, might warrant relief and that an evidentiary hearing was required.

On remand, the trial court conducted a six-day evidentiary hearing at which Smith presented testimony from eight expert witnesses. The State offered two rebuttal witnesses. Smith’s experts addressed evolving scientific understanding of the “triad” of injuries underlying SBS diagnoses – subdural hemorrhage, retinal hemorrhage, and cerebral edema – and offered alternative explanations for Chandler’s condition based on current medical knowledge.

The trial court again denied Smith’s motion, adopting the State’s proposed order without modification. The court concluded that Smith failed to demonstrate that his evidence was newly discovered, that he exercised diligence, or that the evidence was material. Smith sought discretionary review, which the Georgia Supreme Court granted.

Analysis

The Court observed that Georgia law distinguishes between “timely, or ordinary, motions for new trial and untimely, or extraordinary, motions for new trial” and that the law disfavors extraordinary motions for new trial because they undermine the finality of judgments. Ford Motor Co. v. Conley, 757 S.E.2d 20 (Ga. 2014). Nevertheless, discovery of new evidence that materially affects guilt or innocence remains a proper basis for such motions. Mitchum v. State, 834 S.E.2d 65 (Ga. 2019).

Under Timberlake v. State, 271 S.E.2d 792 (Ga. 1980), a movant must establish six elements: (1) the evidence was unknown at trial, (2) it could not have been discovered sooner through diligence, (3) it is sufficiently material to probably produce a different verdict, (4) it is not merely cumulative, (5) witness affidavits have been obtained, and (6) the evidence serves purposes beyond impeachment. The Court noted that new expert analysis of existing physical evidence may satisfy these requirements. State v. Gates, 840 S.E.2d 437 (Ga. 2020).

Appellate courts review factual findings for clear error and the ultimate ruling for abuse of discretion, though that discretion must be exercised in a manner consistent with governing legal principles and based on facts relevant to whether legal requirements are satisfied. Ford Motor Co.

Threshold Admissibility Requirement

Before addressing the three contested Timberlake factors, the Court turned to a threshold question regarding the admissibility of Smith’s expert testimony. As the Court observed, implicit within the six Timberlake requirements is that newly discovered evidence must be admissible at a retrial. Timberlake; Dick v. State, 287 S.E.2d 11 (Ga. 1982).

In proceedings below, the State challenged the admissibility of testimony from Smith’s expert witnesses under OCGA § 24-7-702 (“Rule 702”), which governs expert testimony at any future trial. Rule 702 requires Georgia courts to evaluate expert testimony under the framework established in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993), and its progeny. Under that standard, trial courts assess reliability by considering factors such as whether the theory or technique can be tested, whether it has undergone peer review and publication, its known or potential error rate, its degree of acceptance within the relevant scientific community, and the expert’s qualifications. Id. The State contended that portions of Smith’s expert testimony failed to satisfy these reliability requirements.

The trial court’s order cited two appellate decisions relevant to the Daubert analysis at its outset, the Court noted. However, the extensive analysis that followed contained no express ruling on whether any challenged testimony was inadmissible under Rule 702. Despite this silence, the State urged the Court to interpret scattered references to the “unreliability” of certain testimony as implicit Daubert exclusions.

The Court refused to do as the State requested. Language elsewhere in the order directly contradicted the State’s characterization, the Court reasoned. Specifically, the trial court stated that it had “qualified several experts” and had “consider[ed] everything that was presented at the hearing[,] including the testimony and exhibits, and the arguments and briefing submitted by the parties.” This language necessarily, if implicitly, rejected the State’s admissibility challenge. See Hampton v. State, 713 S.E.2d 851 (Ga. 2011) (recognizing that trial courts are presumed to consider only relevant, legal evidence), overruled on other grounds by Nalls v. State, 815 S.E.2d 38 (Ga. 2018).

Significantly, the Court expressly declined to address the merits of this implicit admissibility ruling. Because the State did not appeal that ruling, the issue was not before the Court. Consequently, it proceeded to evaluate the trial court’s rulings on the three Timberlake requirements at issue: (1) whether the evidence was newly discovered, (2) whether Smith exercised diligence, and (3) whether the evidence was material.

Newly Discovered Evidence

The trial court determined that Smith failed to show the science underlying SBS diagnoses had changed in ways constituting newly discovered evidence. It reasoned that Smith had not demonstrated the State’s trial experts made a “presumptive or materially flawed diagnosis.”

The Court concluded that this analysis was disconnected from the applicable legal inquiry. Whether trial witnesses testified consistently with then-current medical understanding has no bearing on whether the specific evidence supporting Smith’s motion was available at trial, the Court explained. The pertinent question is whether the expert opinion testimony underlying Smith’s motion was known or knowable when he was tried in 2003. Stinchcomb v. State, 843 S.E.2d 847 (Ga. 2020). The trial court’s reliance on irrelevant factual findings constituted error requiring remand, according to the Court.

Diligence

The trial court concluded Smith lacked diligence because experts who questioned SBS validity had existed for decades, and he could have presented “generally critical” testimony at trial.

The Court rejected this reasoning as fundamentally mischaracterizing Smith’s evidence. His motion rested not on generalized criticism of SBS but on testimony from eight experts offering specific analysis of Chandler’s medical records grounded in current scientific understanding of SBS that differed significantly from what was standard at the time of Smith’s trial, the Court stated. The diligence inquiry concerns whether the particular evidence at issue could have been obtained earlier, and Smith’s specific evidence could not have, the Court concluded. Bharadia v. State, 774 S.E.2d 90 (Ga. 2015); Gates. The Court explained that the trial court’s “finding that Smith could have presented testimony ‘generally critical’ of SBS in 2003 provides no basis for concluding Smith lacked diligence in bringing forth the specific evidence at issue in this case because the diligence factor is concerned with the particular evidence forming the basis of the defendant’s motion.” See Bharadia.

The Court identified an additional flaw in the trial court’s diligence analysis, viz., “its nearly singular focus on identifying a precise date” when Smith’s evidence became obtainable. However, the Court explained that the “form and nature of the evidence matters to the diligence inquiry.” An analysis that focuses on a specific date may suit cases involving physical evidence or eyewitness testimony because the materiality of such evidence is “readily apparent” and the “acquisition of which” is typically within the control of the defendant, according to the Court. Drane v. State, 728 S.E.2d 679 (Ga. 2012). But scientific evidence presents different considerations. The Court explained that the significance of scientific developments frequently becomes apparent only as new theories undergo testing, peer review, and community scrutiny over time. Frye v. United States, 293 F. 1013 (D.C. Cir. 1923), superseded on other grounds as recognized in Daubert.

Endorsing the trial court’s approach would force defendants to file motions based on nascent scientific theories before their materiality could be ascertained, the Court stated. This result would be particularly unjust given that Georgia permits only one extraordinary motion for new trial. The Court observed that a prudent defendant would wait until confident in the materiality of scientific developments before filing. The diligence requirement cannot compel presentation of evidence “at the moment the theory on which that motion is based has seeped into the intellectual ether without consideration of the base of scientific support for that theory,” declared the Court. Thus, the Court concluded that the trial court incorrectly characterized the evidence serving as the basis for Smith’s motion and that the trial court applied the incorrect legal framework for the diligence analysis.

Materiality

The trial court’s materiality analysis principally evaluated whether Smith’s or the State’s experts offered the more persuasive explanation for Chandler’s injuries. When the court determined that the State’s witnesses were more credible, it summarily rejected Smith’s showing on materiality.

The Court chided that this approach “is not the appropriate framework within which to analyze the Timberlake materiality standard.” Under the proper framework, courts must determine not whether they find newly discovered evidence persuasive but “whether ‘a reasonable juror’ probably would.” Gates. The analysis requires assessing how new evidence would have influenced the jury’s evaluation of trial evidence, not the judge’s personal view of competing experts, the Court explained. Id.

The Court noted that expert opinion testimony presents distinct considerations. An expert opinion ruled admissible under Rule 702 and Daubert “is not fact that can be proved true or false. It is opinion.” United States v. Shea, 989 F.3d 271 (4th Cir. 2021). While a court may conclude that a reasonable jury would find expert testimony unpersuasive because it was speculative or contradicted by other evidence, such credibility assessment represents “at most one factor” in the materiality determination. Debelbot v. State, 826 S.E.2d 129 (Ga. 2019).

Proper materiality analysis requires examining the strengths and weaknesses of both parties’ cases, the nature of the new evidence, and how that evidence would have affected the State’s theory and any defense, the Court explained. Gates. New evidence need not conclusively establish innocence; it may still be material if probative of guilt or innocence. Bell v. State, 183 S.E.2d 357 (Ga. 1971); Stinchcomb.

By relying exclusively on its own assessment of expert credibility rather than evaluating how the evidence would have influenced jury deliberations, the trial court applied an erroneous framework, the Court ruled.

Conclusion

Accordingly, the Court vacated the trial court’s denial of Smith’s extraordinary motion for new trial and remanded with instructions to apply the proper legal framework. See: Smith v. State, 922 S.E.2d 6 (Ga. 2025).  

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