This article sets out some of the major changes to the Georgia Evidence Code which became effective January 1, 2013. Georgia has primarily adopted the Federal Rules of Evidence with some exceptions as noted herein.
Under the new rules hearsay testimony is now admissible if no objection is made. Previously hearsay was excluded as “illegal” evidence even if no objection was made. There are of course a number of exceptions which allow for hearsay testimony, some of which are outlined herein. (Language taken directly from the code sections appears in bold type).
O.C.G.A. § 24-8-802, Hearsay rule:
Hearsay shall not be admissible except as provided by this article; provided, however, that if a party does not properly object to hearsay, the objection shall be deemed waived, and the hearsay evidence shall be legal evidence and admissible.
The hearsay rules on admissions, found at O.C.G.A. § 24-8-801 (d)(2)(D), makes additional statements now admissible even when an agent or employee is not specifically authorized to speak as the statute provides that:
Admissions shall not be excluded by the hearsay rule. An admission is a statement offered against a party which is…
A statement by the party’s agent or employee, but not including any agent of the state in a criminal proceeding, concerning a matter within the scope of the agency or employment, made during the existence of the relationship.
Certified medical records are now admissible with testimony from a records custodian or other qualified witness O.C.G.A. § 24-8-803 (6).
Note that a custodian cannot lay sufficient foundation for another businesses’ records unless the custodian has some specific knowledge of how the old business records were made and kept.
Police report narratives are now admissible as a hearsay exception; as are factual findings in reports from governmental agency investigations, ie an NHTSA accident report.
O.C.G.A. § 24-8-803: The following shall not be excluded by the hearsay rule, even though the declarant is available as a witness: …
(8) Public records and reports. Except as otherwise provided by law, public records, reports, statements, or data compilations, in any form, of public offices, setting forth:
(A) The activities of the public office;
(B) Matters observed pursuant to duty imposed by law as to which matters there was a duty to report, excluding, however, against the accused in criminal proceedings, matters observed by police officers and other law enforcement personnel in connection with an investigation; or
(C) In civil proceedings and against the state in criminal proceedings, factual findings resulting from an investigation made pursuant to authority granted by law, unless the sources of information or other circumstances indicate lack of trustworthiness;
Various hearsay exceptions, such as excited utterance, should replace questions about res gestae.
O.C.G.A. § 24-8-803: The following shall not be excluded by the hearsay rule, even though the declarant is available as a witness:
(1) Present sense impression. A statement describing or explaining an event or condition made while the declarant was perceiving the event or condition or immediately thereafter;
(2) Excited utterance. A statement relating to a startling event or condition made while the declarant was under the stress of excitement caused by the event or condition;
(3) Then existing mental, emotional, or physical condition. A statement of the declarant’s then existing state of mind, emotion, sensation, or physical condition, such as intent, plan, motive, design, mental feeling, pain, and bodily health, but not including a statement of memory or belief to prove the fact remembered or believed unless such statements relate to the execution, revocation, identification, or terms of the declarant’s will and not including a statement of belief as to the intent of another person;
The best evidence rule now requires any recording, writing, video, photo, etc to be admitted to prove contents unless there was some evidence that the recording had been lost or destroyed through no fault of the party attempting to admit/use same.
O.C.G.A. § 24-10-1002: To prove the contents of a writing, recording, or photograph, the original writing, recording, or photograph shall be required.
A phone conversation may now be authenticated by showing that the number called was assigned to a certain person or business and self-identification of person called or a conversation related to the business called takes place. O.C.G.A. § 24-9-901 (b)(6)
The new evidence code clarifies and broadens the rule regarding inadmissibility of settlement discussions.
O.C.G.A. § 24-4-408. Compromises and offers to compromise:
(a) Except as provided in Code Section 9-11-68, evidence of:
(1) Furnishing, offering, or promising to furnish; or
(2) Accepting, offering, or promising to accept
valuable consideration in com-promising or attempting to compromise a claim which was disputed as to either validity or amount shall not be admissible to prove liability for or invalidity of any claim or its amount.
(b) Evidence of conduct or statements made in compromise negotiations or mediation shall not be admissible.
(c) This Code section shall not require the exclusion of any evidence otherwise discoverable merely because it is presented in the course of compromise negotiations or mediation. This Code section shall not require exclusion of evidence offered for another purpose, including, but not limited to, proving bias or prejudice of a witness, negating a contention of undue delay or abuse of process, or proving an effort to obstruct a criminal investigation or prosecution.
Georgia departs from the federal rules and retains the current Georgia rule that evidence of subsequent remedial measures is admissible in products liability cases – subsequent remedial measures remain inadmissible to prove negligence in other civil cases. O.C.G.A. § 24-4-407. Relevance and admissibility will be determined by a judge in each case. See O.C.G.A. § 24-1-103 and §§ 24-4-401 – 24-4-403.
Georgia departs from the federal rules and retains its rule that a prior consistent statement is not hearsay and is admissible if it rebuts an attack on a witness’s credibility. See O.C.G.A. § 24-8-801 (d) and § 24-6-613.
A new Georgia rule provides that in any jury trial case a juror may testify regarding extraneous prejudicial information, outside influence, or mistake in entering a verdict previously this applied only in criminal cases. See O.C.G.A. § 24-6-606.
Opposing counsel has the right to see any writing used to refresh a witness on the stand, to question the witness regarding the writing and introduce any portions of the writing that relate to the testimony. It is in the court’s discretion to determine if it is in the interest of justice for the same to apply with respect to a writing used to refresh recollection prior to testifying. See O.C.G.A. § 24-6-612.
Types of evidence, such as circumstantial evidence are no longer defined by code as in former O.C.G.A. § 24-4-401.
Rules that will not change in civil cases
· Evidentiary privileges
· Evidentiary presumptions
· Inadmissibility of liability insurance and/or collateral benefits
· The “apology statute” in medical malpractice cases
· Authentication of public records
· Wide open cross examination rule
· Impeachment by prior conviction
· Sequestration of witnesses
· Lay opinion rules
· Proving value
· Expert opinion rules
· Routine practice rule
· Definition of hearsay
· Hearsay exceptions for past recollection recorded; statements for medical diagnosis or treatment; medical narratives; reputation evidence; former testimony; dying declarations; statements by victim of child abuse; necessity exception (although now pre-trial notice is required).
Lara P. Percifield
404-248-2883
lpercifield@m-mlegal.com