Smith v. State

NOTICE: This opinion is subject to modification resulting from motions for reconsideration under Supreme Court
Rule 27, the Court’s reconsideration, and editorial revisions by the Reporter of Decisions. The version of the
opinion published in the Advance Sheets for the Georgia Reports, designated as the “Final Copy,” will replace any
prior version on the Court’s website and docket. A bound volume of the Georgia Reports will contain the final and
official text of the opinion.

In the Supreme Court of Georgia

Decided: October 15, 2025

S25A0548. SMITH v. THE STATE.

BETHEL, Justice.

In 2003, Danyel Smith was convicted of felony murder and

aggravated battery in connection with the death of his two-month-

old son, Chandler, based on a diagnosis of Shaken Baby Syndrome

(“SBS”). On direct appeal, we affirmed Smith’s convictions. See

Smith v. State, 283 Ga. 237 (2008) (“Smith I”). In 2021, Smith filed

an extraordinary motion for new trial based on newly discovered

evidence, arguing that the science surrounding the diagnosis of

brain injuries in infants has dramatically evolved since his trial and

pointing to a new expert affidavit ruling out SBS as the cause of

Chandler’s death. See Smith v. State, 315 Ga. 287, 287 (2022)

(“Smith II”). The trial court denied Smith’s motion without

conducting an evidentiary hearing. Id. Smith appealed, and we
vacated the trial court’s ruling based on our conclusion that the facts

alleged in Smith’s motion, “if proven, may warrant relief” and, as

such, “the trial court was not authorized to deny the motion without

a hearing.” Id. On remand, the trial court conducted an evidentiary

hearing at which Smith presented the testimony of eight expert

witnesses over the course of six days. The trial court again denied

Smith’s motion, and we granted Smith’s application for

discretionary appeal to consider whether the trial court applied the

appropriate legal framework for deciding an extraordinary motion

for new trial like Smith’s that is based on new expert analysis of

existing physical evidence. For the reasons explained below, we

conclude that the trial court’s analysis failed to conform to the

requisite legal framework, and we agree with Smith that the trial

court’s order must be vacated and this case remanded for that court

to apply the appropriate framework.

1. Background

We detailed the particulars of Smith’s extraordinary motion for

new trial in Smith II:

2
Relying on an expert affidavit, various academic
journal articles, and position papers by the American
Academy of Pediatrics (“AAP”), the motion described a
major shift in how the medical community thinks about
infant head trauma, from generally presuming child
abuse when an infant presents with head injuries, to
instead requiring a full examination of the child’s medical
record, including the circumstances of the child’s birth. As
the motion framed the issue, a hypothesis was “well-
entrenched in the medical and legal communities” at the
time of Smith’s trial that violent shaking was
presumptively to blame when an infant presented with
“the triad” of subdural hemorrhage, retinal hemorrhages,
and cerebral edema, with long falls (as from a multi-story
building) and car crashes the only other possible
explanations for the combination of those three
symptoms. Smith cited a 2001 AAP position paper, which
stated that “the constellation of” injuries associated with
SBS “does not occur with short falls, seizures, or as a
consequence of vaccination.”
Smith’s extraordinary motion said that a major shift
in the medical community’s thinking began in 2006 when
the National Association of Medical Examiners withdrew
a position paper endorsing the “triad” as diagnostic of
SBS. The medical community increasingly began to
accept the idea that the “triad” of symptoms once
considered diagnostic of SBS may also be caused by birth
injuries, short falls, or other diseases, the motion posited.
The motion cited a 2009 position paper by the AAP
indicating that “medical diseases” can “mimic” the
presentation of abusive head trauma (“AHT”), a broader
term that includes head injury due to shaking.
Smith emphasized a 2018 position paper by the AAP
and other professional organizations (“2018 Consensus
Statement”). The 2018 Consensus Statement, which

3
framed itself as “intended to help courts improve the
scientific accuracy of their decisions,” decried “denialism
of child abuse” and contentions by defense attorneys and
their expert witnesses proffering “speculative causation
theories” — including birth-related injuries — as
alternative diagnoses in child abuse cases. The statement
called the notion of a “triad” of symptoms as diagnostic of
AHT a “straw man” “fallacy” that is “a legal argument and
not a medically valid term.” Smith framed the 2018
Consensus Statement as “mandating” for the first time
“that pediatricians presented with patients whose
diagnosis previously would have defaulted to AHT must
now thoroughly investigate the possibility of alternative
causes.” Smith claimed that the 2018 Consensus
Statement represented the AAP’s first recognition of birth
trauma as an “alternative diagnosis” for the sort of
symptoms presented by Chandler. Citing a 2020 journal
article and his expert’s affidavit, Smith also posited that
“today it is known that vaccinations, including Hepatitis
B, can cause seizures and encephalopathy even in healthy
infants” and that “the modern medical literature
recognizes that prematurity and other health conditions
must be accounted for in vaccine administration.”
The expert affidavit attached to Smith’s motion was
provided by the chair of neurosurgery at Mount Sinai
West and Mount Sinai Morningside, Dr. Saadi Ghatan,
opining that the cause of Chandler’s death was pre-
existing conditions resulting from birth injury and other
events, and not from SBS. In his affidavit, Dr. Ghatan
cited several ways in which the medical understanding of
infant head injuries has changed since the time of Smith’s
trial. Regarding Chandler’s death in particular, Dr.
Ghatan explained how various events — including acute
fetal distress prior to Chandler’s birth, prolonged labor by
his mother, premature delivery via C-section and vacuum

4
extraction, and prior seizures — led to a brain injury that
was exacerbated by two things that happened shortly
before Chandler became nonresponsive and stopped
breathing: a seven-hour car ride the night before (that
would have left a young infant dehydrated) and
vaccinations received the same day. 1 Dr. Ghatan also
explained how the medical evidence, in the light of
current medical understanding, ruled out conclusions
that Chandler’s death was a result of battery or shaking:
Chandler did not present with the sort of injuries that one
would expect to see in a “battered” or “shaken” baby. Dr.
Ghatan also posited that Chandler’s abdominal bruising
was caused by CPR performed on him by untrained
persons. Dr. Ghatan added that he did not intend to
suggest that the doctors who “handled” Chandler’s case
did anything improper under the standard of care at the
time, but were working with a now-outdated framework.

Smith II, 315 Ga. at 290–92 (cleaned up; footnote in original).

Eighteen months after we remanded this case in Smith II, the

trial court held an evidentiary hearing on Smith’s motion at which

Smith presented the testimony of Dr. Ghatan and seven other expert

witnesses. The State presented the testimony of two expert

1 In explaining how routine infant vaccinations could have been so
problematic for Chandler, Dr. Ghatan noted Chandler’s low birth weight of
four pounds, seven ounces, and that “he received more vaccinations than
customary, and at an accelerated pace”; the extraordinary motion averred that
Chandler had accidentally been given two doses of the Hepatitis B vaccine
during his initial neonatal hospitalization, such that the shot he received on
April 29, 2002, was an “overdose.”
5
witnesses of its own in rebuttal. As a general matter, Smith’s experts

testified about changes in the medical understanding of three

hallmark injuries underlying an SBS diagnosis — subdural

hemorrhage, retinal hemorrhage, and diffuse axonal injury in the

brain — and how that changed understanding would affect

Chandler’s diagnosis in this case. Smith’s experts also testified

regarding their analysis of Chandler’s medical records and offered

their opinions, informed by current medical understanding, as to the

cause of those injuries. The State, through its witnesses, sought to

demonstrate the inaccuracy of the conclusions reached by Smith’s

experts regarding Chandler’s cause of death. Six months later, the

trial court denied Smith’s motion in a lengthy order that was drafted

by the State and adopted without alteration by the trial court,

finding that Smith failed to show that the new evidence was in fact

newly discovered, that he exercised diligence in obtaining and

presenting that evidence to the court, or that the evidence was

material. Smith filed an application for discretionary review, which

we granted. The case was orally argued before this Court on April

6
15, 2025.

2. Analysis

Georgia law “draws a distinction between timely, or ordinary,

motions for new trial and untimely, or extraordinary, motions for

new trial,” the latter of which “have long been disfavored by the law

because they work to undermine the finality of judgments[.]” Ford

Motor Co. v. Conley, 294 Ga. 530, 539 (2014). See also OCGA § 5-5-

41. Thus, we have cautioned that the grant of such a motion “should

not be commonplace, but rather is warranted only in truly

‘extraordinary’ circumstances.” Id. Still, it is well settled that “the

discovery of new evidence that would be admissible at the

defendant’s criminal trial and that materially affects the question of

the defendant’s guilt or innocence is a proper subject of an

extraordinary motion for new trial.” Mitchum v. State, 306 Ga. 878,

880 (2019).

Of course, evidence intended to establish a previously unknown

historical fact has long been recognized as a type of evidence that

may justify the grant of an extraordinary motion for new trial. See,

7
e.g., Wright v. State, 34 Ga. 110, 114–15 (1864). More recently, this

Court also has recognized that the type of evidence forming the basis

for Smith’s extraordinary motion — that is “new expert analysis of

existing physical evidence” — “may constitute new evidence

justifying the grant of an extraordinary motion for new trial.” Smith

II, 315 Ga. at 296; see also State v. Gates, 308 Ga. 238, 257 (2022).

A party who asks for a new trial on the ground of newly discovered

evidence bears the burden of showing that: (1) the new evidence was

unknown to him at the time of trial; (2) the evidence could not have

been acquired sooner through the exercise of due diligence; (3) the

evidence is so material it would probably produce a different verdict;

(4) the evidence is not merely cumulative; (5) the witness’s affidavit

has been obtained or its absence accounted for; and (6) the evidence

serves a purpose beyond impeaching the credibility of a witness. See

Timberlake v. State, 246 Ga. 488, 491 (1980).

When reviewing a trial court’s ruling on an extraordinary

motion for new trial based on new evidence, we “accord substantial

deference” to the court’s decision. Ford Motor Co., 294 Ga. at 538.

8
We review the trial court’s findings of fact for clear error, “meaning

that we must uphold a finding if there is any evidence in the record

to support it,” and “we review the trial court’s ultimate

ruling … only for abuse of discretion.” Id. See also OCGA § 5-5-41(a)

(extraordinary motion requires “good reason” and said “reason shall

be judged by the court”). Nevertheless, “that discretion is not

unfettered.” Ford Motor Co., 294 Ga. at 538. Rather, a trial court

must exercise its discretion “in conformity with the governing legal

principles,” and its decision must be based on “correct facts” that are

“relevant to determining whether the legal requirements were

satisfied.” Id. (quotation marks omitted).

(a) Admissibility

“Implicit in [the] six requirements for [granting a new trial on

the basis of newly discovered evidence] is that the newly discovered

evidence must be admissible as evidence.” Timberlake, 246 Ga. at

491. See also Dick v. State, 248 Ga. 898, 900–01 (1982) (affirming

denial of extraordinary motion that failed to show facts satisfying

“the overriding requirement that the newly discovered evidence be

9
admissible”). Here, in response to Smith’s extraordinary motion for

new trial in the court below, the State challenged the admissibility

of the testimony of Smith’s expert witnesses under OCGA § 24-7-702

(“Rule 702”), which would govern in the event of a retrial.2 Rule 702

requires courts to evaluate the admissibility of expert testimony

under the standard set forth in Daubert v. Merrell Dow

Pharmaceuticals, 509 US 579 (1993), and its progeny. See OCGA §

24-7-702(f). And the State argued that portions of Smith’s experts’

testimony failed to meet the Daubert standard for reliability. See

Smith II, 315 Ga. at 300 n.6 (Under Daubert, “a trial court must

evaluate the reliability of the expert’s proffered testimony; proper

considerations include whether a theory or technique can be tested,

whether it has been subjected to peer review and publication, the

known or potential rate of error for the theory or technique, the

2 At the time of Smith’s first trial, the standard articulated in Harper v.

State, 249 Ga. 519, 525 (1982), remained in force. Under Harper, trial courts
“were empowered to exclude expert testimony based on a particular ‘procedure
or technique’ on the ground that it had not ‘reached a scientific stage of
verifiable certainty.’” Smith II, 315 Ga. at 300 n.6 (quoting Harper, 249 Ga. at
525). But the Harper standard does not apply to hearings or trials commenced
after July 1, 2022. See id.; Ga. L. 2022 at 201–02, § 3.
10
general degree of acceptance in the relevant scientific or professional

community, and the expert’s range of experience and training.”

(quotation marks omitted)).

In its order denying Smith’s motion, the trial court at the

outset cited two appellate decisions relevant to the Daubert analysis,

but in the lengthy analysis that follows, the trial court made no

express ruling on the Daubert issue with respect to any of the

testimony challenged by the State. The State nevertheless insists

that the trial court determined that much of the testimony

presented by Smith’s experts failed to meet the Daubert standard

for reliability and therefore excluded the testimony on that basis,

asserting at oral argument that we should construe the order’s bare

references to the unreliability of certain testimony as findings that

the evidence was inadmissible under Daubert.

But the order itself contradicts the State’s assertion that the

trial court found any of Smith’s experts’ testimony inadmissible

under Rule 702 and Daubert. Specifically, the order states that, in

ruling on Smith’s motion, the trial court had “qualified several

11
experts” and “consider[ed] everything that was presented at the

hearing[,] including the testimony and exhibits, and the arguments

and briefing submitted by the parties.” (Emphasis added.) Thus, the

trial court necessarily, albeit implicitly, rejected the State’s

argument that certain testimony was inadmissible under Rule 702

and Daubert.3 See Hampton v. State, 289 Ga. 621, 627 (2011) (“trial

courts are presumed to consider only relevant, legal evidence”),

overruled on other grounds by Nalls v. State, 304 Ga. 168 (2018). So

we proceed to evaluate the trial court’s rulings on the three

Timberlake requirements at issue here.

(b) Newly Discovered Evidence

The first requirement for obtaining a new trial on the basis of

newly discovered evidence is that the evidence must in fact be newly

discovered, that is, it must have been unknown to the defendant at

the time for filing a timely, ordinary motion for new trial. See

Timberlake, 246 Ga. at 491; Patterson v. State, 228 Ga. 389, 390–91

3 We express no opinion on the merits of the trial court’s implicit ruling

admitting this evidence. Because the State did not appeal this ruling, the issue
is not before us.
12
(1971) (“[The] state of facts [forming the basis for an extraordinary

motion for new trial based on new evidence] must have been

unknown to the movant or his counsel at the time when an ordinary

motion for a new trial could have been filed[.]” (quotation marks

omitted)). This inquiry “is focused on the evidence itself,” and the

defendant must show “that either the fact itself, proposed to be

proven, or the evidence by which it may be proven, was unknown to

the accused at the time of the trial” and the time for filing a timely

motion for new trial. Stinchcomb v. State, 308 Ga. 870, 877–78

(2020) (quotation marks omitted); see also Patterson, 228 Ga. at

390–91. And in Smith II we held that “new expert analysis of

existing physical evidence” may “relate to new and material facts”

and, thus, may constitute newly discovered evidence on which an

extraordinary motion for new trial may be premised. Smith II, 315

Ga. at 295–96.

In determining that Smith failed to satisfy this requirement,4

4 The trial court’s order touches on this requirement only briefly, and the

truncated analysis is embedded within findings that appear to be related to
the materiality factor, described further below.
13
the trial court found that Smith’s “presentation of evidence has

failed to show by reliable scientific evidence that the diagnosis of

abusive head trauma in infants has changed since 2002-2003 [in

such a way] that would constitute newly discovered evidence under

Timberlake.” In support of this finding, the trial court reasoned that

Smith “has not shown that the [State’s] expert witnesses at [his]

trial made a presumptive or materially flawed diagnosis” and thus

had failed to “persuade[ ]” the trial court that his “conviction rests

on an obsolete or unreliable foundation.” The trial court indicated

that its finding rested on “the reliable and credible testimony of [the

State’s expert witnesses], the record of the case, and numerous

exhibits and the scientific papers and studies presented.”

This analysis was wholly unsupported by decisional authority,

and it is unclear to us how these findings or the evidence cited by

the trial court are at all related to the Timberlake factor at issue.

The fact that the witnesses at Smith’s trial testified consistently

with the then-current understanding of SBS has no bearing on

whether the particular evidence supporting Smith’s extraordinary

14
motion for new trial was unknown to Smith and his counsel at the

time of trial. See Stinchcomb, 308 Ga. at 877 (trial court erred by

finding that eyewitness testimony had not come to defendant’s

knowledge since trial on basis that witness was known to defendant

before trial because the eyewitness “as a witness is not the evidence

at issue — the content of his sworn affidavit is”). It is likewise

unclear how the testimony of the State’s expert witnesses has any

bearing on Smith’s knowledge at the time of trial. The question

pertinent to this factor is whether the expert opinion testimony

underlying his extraordinary motion for new trial was known to

Smith or his counsel at the time of his 2003 trial. See id.; Smith II,

315 Ga. at 299 (“The trial court broadly concluded based on two

articles that ‘this type of expert opinion offered by Dr. Ghatan has

been available since the 1990s,’ such that Smith had failed to show

that his motion was based on evidence that has come to his

knowledge since the time of trial. But, on its face, Dr. Ghatan’s

particular opinion could not have been offered at the time of trial,

let alone in the 1990s.” (cleaned up)). By centering its analysis on

15
factual findings unrelated to the applicable legal inquiry, the trial

court erred. See Ford Motor Co., 294 Ga. at 538 (“[T]he trial court’s

discretion must be exercised in conformity with the governing legal

principles, and the facts that the court must find and that we must

evaluate on appeal are those relevant to determining whether the

legal requirements were satisfied.”). On remand, the trial court

should conduct its analysis of this Timberlake factor consistently

with this opinion and applicable decisional law.

(c) Diligence

The trial court also found that Smith failed to satisfy

Timberlake’s due diligence requirement. The diligence requirement

is related to, but distinct from, the new-knowledge requirement:

besides showing that the newly discovered evidence was unknown

to him, the defendant must also show that, even in the exercise of

due diligence, he could not have acquired the evidence at issue. See

Dick, 248 Ga. at 900. As we have explained, “[t]he grant of an

extraordinary motion for new trial on the ground of newly

discovered evidence is reserved for cases in which the facts at issue

16
in the motion were previously impossible to ascertain by the exercise

of proper diligence.” Bharadia v. State, 297 Ga. 567, 573 (2015). To

satisfy the defendant’s burden of proof on this requirement, the

defendant must make a “factual showing that [the new] evidence

could not have been discovered by the exercise of ordinary diligence”

before trial or during the motion-for-new-trial stage. Timberlake,

246 Ga. at 491–92; Bharadia, 297 Ga. at 569–70, 573 (“[T]he record

reflects no evidence showing that [the defendant] was unable to

obtain this evidence prior to trial.”). Besides diligence in discovering

the evidence at issue, the defendant also must exercise diligence in

bringing that evidence to the court’s attention. That is, the record

must show that, when the defendant became aware of the evidence

forming the basis for his extraordinary motion, he acted diligently

in presenting his motion and the new evidence to the court. See

Drane v. State, 291 Ga. 298, 304 (2012).

The trial court here rested its finding of a lack of diligence on

its determination that Smith could have presented testimony

“generally critical” of SBS at the time of his trial because “the

17
hearing revealed a long history of litigation on [SBS] going back

decades” and “there have been experts available for decades … who

questioned the validity of [SBS].” The State echoes this rationale on

appeal. But this narrow view of Smith’s evidence is incorrect. The

foundation of Smith’s motion is not testimony that is “generally

critical” or merely “question[s] the validity of” SBS. Rather, Smith’s

motion relies on the testimony of eight expert witnesses that, Smith

says, offers a new analysis of Chandler’s medical records rooted in a

new understanding of the underlying science and a medically based

alternative explanation for Chandler’s injuries. The finding that

Smith could have presented testimony “generally critical” of SBS in

2003 provides no basis for concluding that 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, 297 Ga. at 571–

72 (noting “inconsistent use of the term ‘evidence’” in order denying

extraordinary motion for new trial and identifying specific evidence

at issue in motion before considering diligence); Gates, 308 Ga. at

18
257 (rejecting argument that, “given the prevalence of DNA evidence

in criminal proceedings since at least the 1990s,” defendant should

have sought DNA testing on existing physical evidence sooner

because the newly discovered evidence at issue was not simply the

DNA found on the physical evidence but rather DNA analysis

derived from new software).

The trial court’s diligence analysis suffers from another

infirmity — its nearly singular focus on identifying a precise date

at which, in the court’s estimation, Smith’s new evidence could have

been obtained and presented to the court. Of course, this type of

analysis makes sense when the new evidence at issue is physical

evidence or historical-fact-based evidence, such as testimony from

a witness with knowledge relevant to the charged crimes, the

materiality of which is readily apparent with the exercise of

diligence and the acquisition of which is generally within the

control of the defendant. See Drane, 291 Ga. at 304 (“[T]he diligence

requirement ensures that cases are litigated when the evidence is

more readily available to both the defendant and the State, which

19
fosters the truth-seeking process.”). But the form and nature of the

evidence matters to the diligence inquiry. Smith’s evidence — the

experts’ testimony — is based not on historical fact or direct

observation of an alleged crime but rather on their understanding

of scientific knowledge. And the materiality of scientific

development often becomes apparent only with the passage of time

as new theories are subjected to the rigors of scientific testing, peer

review, and the general scrutiny of the scientific community. Cf.

Daubert, 509 US at 593 (“Scientific methodology today is based on

generating hypotheses and testing them to see if they can be

falsified; indeed, this methodology is what distinguishes science

from other fields of human inquiry.” (quotation marks omitted));

Frye v. United States, 293 F. 1013, 1014 (D.C. Cir. 1923) (“Just

when a scientific principle or discovery crosses the line between the

experimental and demonstrable stages is difficult to define.

Somewhere in this twilight zone the evidential force of the principle

must be recognized[.]”), superseded on other grounds as recognized

in Daubert, 509 US at 586–87.

20
Recognizing this reality, we have observed that “a prudent

defendant predicating [an extraordinary] motion on scientific

developments would wait until he is confident in the materiality of

those developments” before presenting the new evidence to the

court. Smith II, 315 Ga. at 302. Indeed, endorsing the trial court’s

analysis would impose upon defendants the requirement of filing

an extraordinary motion for new trial based on scientific

developments 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. Simply put, the

diligence requirement of Timberlake cannot operate to require a

defendant to present evidence of new scientific developments to the

court until the defendant is able to ascertain and prove the

materiality of those developments, especially in light of the fact that

“a convicted defendant may file only one extraordinary motion for

new trial.” See id. (“[A] defendant who brings an extraordinary

motion for new trial based on new scientific developments cannot

prevail unless those developments are ‘so material that they would

21
probably produce a different verdict.’” (alteration adopted)); see also

Bharadia, 297 Ga. at 570 (“Good reason exists only where the

moving party exercised due diligence but, due to circumstances

beyond his control, was unable previously to discover the basis for

the claim he now asserts.” (citations and punctuation omitted)).

Because the trial court relied on an incorrect characterization

of the evidence forming the basis for Smith’s motion and failed to

apply the proper legal framework in its analysis of this Timberlake

factor, the court erred. On remand, the trial court should undertake

the diligence analysis with the delicate balance we discussed above

in mind, while also taking care not to conflate its analysis of the

diligence factor with its analysis of the newly discovered evidence

factor.

(d) Materiality

Finally, we turn to the materiality requirement. To satisfy the

Timberlake materiality requirement, a defendant must show that

the evidence on which his extraordinary motion is based is “so

material that it would probably produce a different verdict.”

22
Timberlake, 246 Ga. at 491. As we recognized in Smith II, “expert

opinion testimony is ‘evidence’” that may properly form the basis for

an extraordinary motion for new trial. Smith II, 315 Ga. at 295–96

(emphasis added). And expert opinion testimony that offers a new

analysis of existing physical evidence premised on post-trial

scientific developments can satisfy the Timberlake materiality

standard. See id. at 300; Gates, 308 Ga. at 259–60.

Here, the bulk of the trial court’s order on Smith’s

extraordinary motion appears to be dedicated to an assessment of

the materiality factor. In considering this factor, the trial court’s

factual findings generally center on whether the opinion advanced

by Smith’s expert witnesses about the cause of Chandler’s injuries

was correct in the court’s estimation or whether the State’s rebuttal

witnesses, who maintained that Chandler’s injuries resulted from

SBS, offered the more persuasive explanation. And without

exception, the court found the State’s experts more persuasive and

rejected Smith’s experts’ opinions about the source of a particular

injury. Then, in light of its rejection of Smith’s experts’ testimony,

23
the trial court summarily concluded that Smith failed to

demonstrate Timberlake materiality or make some other showing

articulated in the order. 5 This is not the appropriate framework

within which to analyze Timberlake materiality.

As we have explained, in assessing materiality, the pertinent

inquiry is not “whether the trial court found the newly discovered

evidence persuasive in light of the other evidence presented at trial,

but whether ‘a reasonable juror’ probably would.” Gates, 308 Ga. at

259. Under that framework, a court must “attempt to account for

how the new evidence would have influenced the jury’s assessment

5 Among the various phrasing in the trial court’s order indicative of the

standards that it applied are the following: “the Court is not persuaded that
[Smith’s] conviction rests on an obsolete or unreliable foundation”; “[t]he Court
must determine whether [Smith] has shown that in light of current medical
understanding, it is now understood that the victim did not present with
injuries that would be expected for a ‘battered’ or ‘shaken’ baby as claimed by
the affiant Dr. Ghatan”; “the Court evaluates whether the evidence, including
the up-to-date medical journals, exhibits, and scientific papers submitted at
the hearing show that the victim’s injuries are today now understood to have
been more likely the result of pre-existing trauma, such as birth trauma, or a
seizure, triggered by various factors such as vaccination and dehydration”; “the
Court finds that there is no increased or material certainty based on the
evidence it received or any scientific developments since [Smith’s] 2003 trial
that the victim’s birth, including his c-section, contributed to his death”; and
“[Smith] has not shown that recent scientific studies materially undermine the
foundations of the evidence used to convict him at trial.”
24
of the evidence presented by the State” at the defendant’s trial, had

the new evidence been available to the defendant at that time.

Gates, 308 Ga. at 259. See also Fields v. State, 212 Ga. 652, 653

(1956) (observing that “none of [the] requirements [for obtaining a

new trial on newly discovered evidence] can be determined without

an examination of the evidence adduced upon the original trial of

the case”). The trial court’s order here does not engage in the type of

analysis contemplated by Timberlake and its progeny, as it contains

no assessment of how Smith’s new evidence would have factored into

the jury’s consideration of the evidence presented at his trial.

Rather, the trial court’s various findings on materiality all flow from

the court’s own assessment of the persuasiveness of the testimony

offered by Smith’s and the State’s expert witnesses and its

determinations as to which expert offered the better explanation for

Chandler’s injuries. This was erroneous. See Gates, 308 Ga. at 259.

The trial court’s materiality assessment also overlooks a

critical point about the type of evidence on which Smith’s

extraordinary motion is based. Specifically, Smith’s motion is

25
predicated not on evidence intended to establish a historical fact, the

veracity of which may be up for debate. Instead, his motion relies on

expert opinion testimony, and an expert opinion that, as here, has

been found relevant, reliable, and thus admissible under Rule 702

“is not fact that can be proved true or false. It is opinion.” 6 United

States v. Shea, 989 F3d 271, 278 (4th Cir. 2021). See also Smith v.

State, 318 Ga. 868, 872–73 (2024) (distinguishing between expert

opinions and factual assertions and noting that “[e]xpert opinions

are just that — opinions — and are subject to different standards of

reliability and trustworthiness that govern their admission”). We

have acknowledged that in assessing whether a jury would find

expert testimony persuasive under these circumstances, a court

could determine “that a reasonable jury would not find the expert’s

opinion persuasive because it was too speculative, was too equivocal,

6 This is not to say that an expert witness could not lie on the stand, just

like any other witness. But concerns about the truth or falsity of an expert’s
testimony are addressed as part of the trial court’s assessment of the reliability
of the expert’s testimony under Rule 702. See, e.g., Elcock v. Kmart Corp., 233
F3d 734, 751 n.8 (3d Cir. 2000) (noting that the “fact that the expert lied about
whether his methodology had been subjected to peer review, or intentionally
understated the test’s known rates of error” is a factor to be considered in
determining Rule 702 reliability).
26
or did not stand up to the strength of other evidence in the record.”

Debelbot v. State, 305 Ga. 534, 541 (2019). See also Shea, 989 F3d at

278 (Where expert opinion testimony has been found admissible

under Rule 702, “the factfinder cannot conclude that [the expert

testimony] is true or false. Rather, it must determine the weight to

give the opinion by considering whether it is plausible, coherent, and

internally consistent, and not contradicted by extrinsic evidence.”

(citations and punctuation omitted)). But we have cautioned that

“[t]his sort of assessment of the witness’s ‘credibility’ is at most one

factor to be considered … in determining how a reasonable juror

would probably weigh the newly discovered evidence against the

other evidence presented at trial.” Gates, 308 Ga. at 260 n.19

(emphasis added).

To be sure, the materiality inquiry is a holistic one that must

take into account the specific facts and circumstances of the case.

See Tanner v. State, 247 Ga. 438, 443–44 (1981) (“Each case of newly

discovered evidence must be judged on its own facts.”). Because of

this all-encompassing nature, it is difficult to predict in any given

27
case what facts and circumstances may be relevant to the

materiality inquiry. Nevertheless, we have emphasized that the

materiality analysis should include a consideration of “the strengths

and weaknesses of both the State’s and the defendant’s case and the

nature and strength of the defendant’s new evidence.” Gates, 308

Ga. at 260 (quotation marks omitted). See also id. at 259–64

(discussing how defendant’s newly discovered evidence would have

impacted jury’s consideration of various items of “strong”

inculpatory evidence presented by the State at trial); Bowden v.

State, 250 Ga. 185, 187 (1982) (affirming finding of no materiality

where defendant’s newly discovered evidence constituted “very

weak, if any, evidence” on contested issue of fact). The inquiry also

may entail an assessment of how the evidence would impact the

State’s theory of the case, the theory of defense, or both, as well as

whether the evidence might “suppl[y] the missing link” in the chain

of evidence of guilt (or innocence). See, e.g., Bell v. State, 227 Ga.

800, 808 (1971); Stinchcomb, 308 Ga. at 880–81 (noting that “the

only real question before the jury was whether [appellant] acted in

28
self-defense, and the evidence presented on that point was rather

close” and discussing how new evidence factored into assessment of

defense of self-defense); Moody v. State, 277 Ga. 676, 682 (2004)

(concluding defendant failed to establish materiality where

defendant failed to show that newly discovered evidence was

relevant to his guilt or innocence). Importantly, even when the

newly discovered evidence at issue “does not conclusively establish

who committed a particular crime, it may nonetheless be probative

evidence of a defendant’s guilt or innocence” and thus material for

purposes of Timberlake. Gates, 308 Ga. at 261; Bell, 227 Ga. at 807–

08 (“[T]hat the verdict was authorized by the evidence adduced at

the trial in no way precludes the probability of a different verdict on

another trial with the newly discovered evidence, since the evidence

merely authorized, but did not demand the verdict[.] … The State’s

evidence, while authorizing the verdict, was nevertheless not

altogether satisfactory.”).

Here, by relying exclusively on its own opinion of the experts’

credibility in determining the materiality of Smith’s newly

29
discovered evidence, the trial court erred. Instead, in considering

materiality, the trial court should have considered how the evidence

would have influenced the jury’s consideration of the evidence

introduced against Smith at his 2003 trial. On remand, the trial

court should consider the materiality of Smith’s evidence consistent

with the framework outlined above and in our relevant decisional

law.

For all these reasons, the trial court’s decision denying Smith’s

extraordinary motion for new trial is vacated and this case is

remanded for the trial court to consider Smith’s motion within the

appropriate legal framework, as outlined in this opinion. 7

Judgment vacated and case remanded. All the Justices concur.

7 Trial courts are permitted to adopt proposed orders prepared by a party

to the litigation, even without alteration, as the trial court did here. See
Treadaway v. State, 308 Ga. 882, 887 (2020) (“It is well established in Georgia
that a trial court may request and adopt a proposed order from either party.”).
Indeed, the ability to adopt litigant-prepared orders is often vital to a trial
court’s efforts to efficiently manage its docket. That said, given that we have
now vacated both orders entered by the trial court in this case, both of which
uncritically adopted drafts prepared by the State, we encourage the trial court
to proceed with care before pursuing the same approach on remand. And given
that Smith’s motion has now been pending for nearly five years, we encourage
the trial court and the parties to proceed with dispatch.
30