Changes In Georgia’s Evidence Code Effective January 1, 2013

by

Frank E. Jenkins, III
Brandon L. Bowen
JENKINS & BOWEN, P.C.

 

15 South Public Square
Cartersville, Georgia  30120
(770) 387-1373
http://www.ga-lawyers.pro

TABLE OF CONTENTS
Page
A.Agent Admissions1
B.Business Records3
C.Privileges.5
D.Prior Statements8
E.Learned Treatises.9
F.Summaries of Voluminous Records10
G.Lay Opinion11
H.Expert Witnesses.13
I.Electronic Evidence15


INTRODUCTION1

Effective January 1, 2013, Georgia’s rules of evidence will undergo a dramatic change.  In April 2011, the Georgia legislature voted to completely replace the rules of evidence, Title 24 of the Code, with a new title based very closely on the Federal Rules of Evidence.  In some ways, this new Evidence code simply consolidates rules that have been in place in this state for years, but the new code also introduces substantial changes that practitioners will need to be ready for.  This paper presents some of the highlights of the new Evidence code most germane to environmental law and discusses how these changes will affect the way we all practice.

A.        AGENT ADMISSIONS

Current Rules

New Code

O.C.G.A. § 24-3-33:  “Admissions by an agent or attorney-in-fact, during the existence and in pursuance of his agency, shall be admissible against the principal.”

O.C.G.A. § 10-6-64:  “The agent shall be a competent witness either for or against his principal. … The declarations of the agent as to the business transacted by him shall not be admissible against his principal unless they were part of the negotiation constituting the res gestae....”

§ 24-8-801(d)(2)(D):  Excludes from the hearsay rule “[a] statement by the party’s agent or employee …2 concerning a matter within the scope of the agency or employment, made during the existence of the relationship.”

Here, the new rules provide relief from a confusing and contradictory pair of provisions split between the Evidence and Agency titles of the Code.  The confusion arises from the inconsistent effect given by the courts to the Agency title’s reference to res gestae.  In some cases, the courts have interpreted this to mean that only admissions made during the transaction in question may be admitted and have excluded agent admissions made after the fact.3 In other cases, adverse admissions by employee-agents made after the fact have been admitted under the provisions of § 24-3-33. 4

The new rules provide some needed clarity by adopting intact the corresponding provision of the Federal Rules of Evidence.  Although it remains to be seen how the courts will apply the new language, there is reasonable consistency across the federal circuits in treating this rule as permitting the admission of any statement by any agent, expressly authorized to speak for his principal or not, made within the scope of the agency, without reference to any res gestae requirement.5

B.        BUSINESS RECORDS


Current Rules

New Code

O.C.G.A. § 24-3-14(b):  Permits the use of a “memorandum or record of any act, transaction, occurrence or event” to prove the act, transaction, occurrence or event, provided the court finds the record was made in the regular course of business.

§ 24-8-803(6):  Allows the use of records, in any form, of “acts, events, conditions, opinions, or diagnoses” if “(A) made at or near the time of the described acts, events, conditions, opinions or diagnoses; (B) made by, or from information transmitted by, a person with personal knowledge and a business duty to report; (C) kept in the course of a regularly conducted business activity; and (D) it was the regular practice of that business activity to make the memorandum, report, record, or data compilation.”

Although it is expressly excluded under current law6, the new rule permits the introduction through business records of opinion evidence, which would include medical diagnoses and appraisals of value.  But perhaps the greater change in this area is the addition of new methods of authenticating the records sought to be admitted:

Current Rules

New Code

O.C.G.A. § 24-7-4:  Requires that the subscribing witness – that is, the person who signed the subject instrument as a witness – be produced, with exceptions that include “[i]f from any cause the witness cannot be produced or sworn.”

A person who was not the subscribing witness is not competent to authenticate a document. McClinton v. Sullivan, 208 Ga.App. 411 (1993).

The Court of Appeals has grappled with the question of what type of witness may authenticate a business record, but it has always held – despite the statute not saying so expressly – that a witness with personal knowledge of the origins of the record must lay the foundation before a court may admit a business record into evidence under the hearsay exception.  Loyal v. State, 300 Ga.App. 65 (2009).

§ 24-9-903:  “The testimony of a subscribing witness shall not be necessary….”

§ 24-8-803(6):  Provides that the foundation for a business record can be laid by “the custodian or other qualified witness or by certification that complies with paragraph (11) or (12) of Code Section 24-9-902….”

§ 24-9-902(11):  Allows domestic records to be authenticated by a written declaration of a qualified witness that the record meets the requirements for the hearsay exception.

§ 24-9-902(12):  Allows foreign records on the same terms, so long as the declaration is signed in a manner that, if falsely made, would subject the maker to criminal penalties in the country where it is signed.

Where authentication is done by declaration, any adverse parties must be given notice and an opportunity to inspect and challenge the record and the declaration, sufficiently in advance of their being offered into evidence.

In adopting these provisions – virtually identical to the corresponding federal rules – Georgia has made a dramatic change, allowing practitioners to streamline the introduction of business records into evidence.

C.         PRIVILEGES

The federal rules provide that in matters governed by federal law, evidentiary privileges are determined by looking to the common law; for claims or defenses governed by state law, the privileges that apply in federal court are those recognized by the state whose law controls the matter being tried.  With the federal system having, in a sense, adopted the rules of the various states in this area, it is unsurprising that in adopting the federal rules Georgia has essentially kept its existing privilege doctrine intact.

Current Rules

New Code

§ 24-9-20, et seq.:  Provide a number of evidentiary privileges.  Among these are:

  • Privilege against self-incrimination;
  • Secrets of state;
  • Communications between:
    • husband/wife;
    • attorney/client;
    • psychiatrist/patient;
    • grand jurors;
    • licensed psychologist/patient;
    • patient/licensed clinical social worker or nurse specialist in mental health, etc.;

Note:  A doctor’s privilege does not cover a nurse who is an agent of the hospital and not the doctor.  Myers v. State, 251 Ga. 883 (1984).
Where the mental health professional is not a psychiatrist or clinical psychologist, there is no privilege.  Lipsey v. State, 170 Ga.App. 770 (1984).

  • Clergyman/penitent;

On its face, only applies to Christian or Jewish clergy.  No case law testing that limitation.
Does not apply to a “spiritual advisor” or a “psychic.”  Manous v. State, 200 Ga.App. 293 (1991).

  • Spousal privilege – One spouse may not be compelled to testify against the other in a criminal proceeding;
  • Attorney-client privilege at § 24-9-24, again;
  • Privilege of witness from being required to give testimony that will incriminate himself or bring infamy, disgrace, or public contempt on himself or his family; no witness shall be compelled to testify to a matter that will tend to work a forfeiture of his estate, except in post-judgment discovery;

Witness must state why he refuses to testify. Wynne v. State, 139 Ga.App. 355 (1976).

  • Journalist’s privilege;
  • Librarians;
  • Veterinarians.

§ 24-5-501, et seq.:  Provide a number of evidentiary privileges.  Among these are:

  • Privilege against self-incrimination;
  • Secrets of state;
  • Communications between:
    • husband/wife;
    • attorney/client;
    • grand jurors;
    • psychiatrist/patient;
    • psychologist/patient;
    • patient/licensed clinical social worker or nurse specialist in mental health, etc;
  • Clergyman/penitent;

Again, only appears to cover Christian and Jewish clergy.

  • Spousal privilege;
  • § 24-5-504: Privilege of a law enforcement officer not to be compelled to reveal his home address;
  • Privilege of witness from being required to give testimony that will incriminate himself or bring infamy, disgrace, or public contempt on himself or his family; no witness shall be compelled to testify to a matter that will tend to work a forfeiture of his estate, except in post-judgment discovery;
  • Journalist’s privilege;
  • § 24-12-30: Librarians;
  • § 24-12-31: Veterinarians.

D.        PRIOR STATEMENTS


Current Rules

New Code

§ 24-9-83:  “A witness may be impeached by contradictory statements previously made by him as to matters relevant to his testimony and to the case. Before contradictory statements may be proved against him, unless they are written statements made under oath in connection with some judicial proceedings, the time, place, person, and circumstances attending the former statements shall be called to his mind with as much certainty as possible. If the contradictory statements are in writing and in existence, they shall be shown to him or read in his hearing.”

§ 24-6-613(a):  “In examining a witness concerning a prior statement made by the witness, whether written or not, the statement need not be shown nor its contents disclosed to the witness at that time; provided, however, upon request the same shall be shown or disclosed to opposing counsel.”

As with the business records exception, the biggest change in the new rules with respect to the admissibility of prior statements is in how such evidence is used.  Until the new rules, Georgia has required an examining attorney to call to the witness’s mind the circumstances of the prior statement before confronting him with the substance of what was said; the new rules permit the attorney to hit the witness with the prior statement without easing him into it.  Not only do the new rules bring Georgia practice into line with the federal rules, but they also ensure that witness impeachment will become a lot more dramatic and entertaining.

E.         LEARNED TREATISES


Current Rules

New Code

An expert can express an opinion on the meaning and application of treatises (although the contents of the treatises are not themselves admissible).  “The opinion of an expert as to what conclusions may be properly drawn from statements in scientific works pertaining to his profession, amounts to something more than mere hearsay.”  Rogers v. State, 202 Ga.App. 595 (1992).

“[N]otwithstanding the inadmissibility of the books, the opinions contained therein may come to the jury through the mouth of an expert witness.”  Boswell v. State, 114 Ga. 40 (1901).

“[A]n expert witness may be cross-examined by reference to a standard treatise in the field of the expert's special knowledge to test his credibility, … [but] an expert cannot be cross-examined upon a treatise which has not been proved to be a standard treatise on the subject.”  Wooten v. Department of Human Resources, 152 Ga.App. 304 (1979).

§ 24-8-803:  Excepts from the rule against hearsay:  “[t]o the extent called to the attention of an expert witness upon cross-examination, statements contained in published treatises, periodicals, or pamphlets, whether published electronically or in print, on a subject of history, medicine, or other science or art, established as a reliable authority by the testimony or admission of the witness, by other expert testimony, or by judicial notice.  If admitted, the statements may be used for cross-examination of an expert witness and read into evidence but shall not be received as exhibits.”

There is not currently a statutory exception to the rule against hearsay for learned treatises, but rules similar to both the federal and new Georgia rules have been established in the case law.

F.         SUMMARIES OF VOLUMINOUS RECORDS


Current Rules

New Code

Summaries of voluminous records are allowed as competent evidence when the underlying records are available for examination by the opposing party.  Tyner v. Sheriff, 164 Ga.App. 360 (1982).

C.f., In re A.A., 252 Ga.App. 167 (2001).  Court of Appeals held that a social worker’s summary of a voluminous case file was inadmissible hearsay.  However, the contents of the file themselves were other social workers’ impressions and opinions, and the file itself was not produced.  Regardless, the language of the opinion seems to question the admissibility of summaries in general.

§ 24-10-1006:  “The contents of otherwise admissible voluminous writings, recordings, or photographs which cannot conveniently be examined in court may be presented in the form of a chart, summary, or calculation. The originals, or duplicates, shall be made available for examination or copying, or both, by other parties at a reasonable time and place. The court may order that the contents of such writings, recordings, or photographs be produced in court.”

The new rules codify what has essentially been the rule in Georgia found in case law.  To the extent that some courts had questioned whether summaries were competent evidence, the new rule makes it clear that they are.

G.        LAY OPINION


Current Rules

New Code

O.C.G.A. § 24-9-65:  “Where the question under examination, and to be decided by the jury, shall be one of opinion, any witness may swear to his opinion or belief, giving his reasons therefor. If the issue shall be as to the existence of a fact, the opinions of witnesses shall be generally inadmissible.”

“[A]s a general rule a witness is not permitted to express an opinion of ultimate fact or the fact to be decided by the jury because to do so would invade the province of the jury.” Nichols v. State, 177 Ga.App. 689 (1986) (Internal punctuation omitted).

O.C.G.A. § 24-9-66:  “Direct testimony as to market value is in the nature of opinion evidence. One need not be an expert or dealer in the article in question but may testify as to its value if he has had an opportunity for forming a correct opinion.”  The owner of property is qualified to state his opinion as to value.  Maddox v. State, 157 Ga.App. 696 (1981).

§ 24-7-701:  Lay opinion limited to opinions which are:

  • “Rationally based on the perception of the witness;
  • Helpful to a clear understanding of the witness’s testimony or the determination of a fact in issue; and
  • Not based on scientific, technical, or other specialized knowledge….”

§ 24-7-704:  “…testimony in the form of an opinion or inference otherwise admissible shall not be objectionable because it embraces an ultimate issue to be decided by the trier of fact.”

§ 24-7-701(b):  “A witness need not be an expert or dealer in an article or property to testify as to its value if he or she has had an opportunity to form a reasoned opinion.”

In adopting the federal rule on lay witness testimony, Georgia has shifted the admissibility inquiry away from concerns over testimony about ultimate issues and the cloudy distinction between facts and opinions – even the most obviously factual testimony from a witness is really the result of his mental processes and the product of his subjective impressions – and toward the question of usefulness to the jury.

“As long the circumstances can be presented with greater clarity by stating an opinion, then that opinion is helpful to the trier of fact.”  Lauria v. National R.R. Passenger Corp., 145 F.3d 593 (3rd Cir. 1998).  “The fact that the lay opinion testimony bears on the ultimate issue in the case does not render the testimony inadmissible.”  Lightfoot v. Union Carbide Corp., 110 F.3d 898 (2d Cir. 1997).

H.        EXPERT WITNESSES

In 2005 Georgia adopted, essentially, the federal rules on expert witnesses for all civil trials, but retained its previous rules for criminal matters.  In the new code, Georgia’s version of the federal rules regarding expert witnesses is extended to both civil and criminal trials.
Using Expert Witnesses

  • Qualifying your expert.  Before an expert can give substantive testimony, you must first establish that the witness truly is an expert, based on knowledge, skill, experience, training, or education.  Your opponent may object to the use of the witness or voir dire the witness to test and challenge the witness’s qualifications. Keep in mind that the scope of the witness’s expertise is the scope on which the witness is qualified to offer an opinion.  For example, a scientist who qualifies as an expert on the effects of a certain chemical compound on the human body may not, without further qualification, give an opinion on the design of a containment facility for that compound. § 24-7-702(b).
  • Subject matter of expert testimony.  Expert testimony is based on scientific, technical, or other specialized knowledge, and is used to help the trier of fact understand evidence or determine a fact in issue.
  • Reliability.
    • Rules of evidence.  § 24-7-702.  The rules provide the fundamental standard for reliability of expert testimony, which turns on three key questions:
      • Is the testimony based on sufficient facts or data?
      • Is the testimony the product of reliable principles and methods? See, HNTB Georgia, Inc. v. Hamilton-King, 287 Ga. 641 (2010).
      • Did the witness apply the principles and methods reliably to the facts of the case? See, Butler v. Union Carbide Corp., 2011 WL 2347505 (Ga.App., 2011).
    • Daubert standard.  The rules of evidence adopted in 1995 directly adopt the standards for the admissibility of expert testimony expressed in a series of United States Supreme Court cases starting with Daubert v. Merrell Dow Pharmaceuticals, 509 U.S. 579 (1993).  Under this line of cases, a court must consider the following in determining whether or not to admit expert opinion:
      • Whether the theory or technique the expert is testifying to can be tested;
      • Whether the theory or technique has been subjected to peer review;
      • What the known or potential error rate is for the technique; and
      • The extent to which the theory or technique has been accepted within the scientific community.
    • Other considerations.  Some other questions a court may ask, and that a practitioner should be prepared to deal with, are:
      • Was the expert’s research conducted for a purpose independent of this litigation?
      • Has the expert accounted for alternative explanations?
      • Has the expert used the same care in preparing to testify as he or she uses in his or her professional work?
  • Special considerations for professional malpractice actions.  The code (O.C.G.A. § 24-9-67.1; new § 24-7-702(c)) imposes additional requirements on experts who testify to the standard of care applicable in professional malpractice cases.  In such actions, an expert’s opinions are admissible only if the expert, at the time of the alleged malpractice:
    • Was licensed to practice his or her profession; and
    • For medical malpractice cases, had professional knowledge and experience in the area to which the opinion pertains from actually practicing or teaching in that area for three of the prior five years, and from being a member of the same profession as the person whose conduct is the subject of the opinion.

I.          ELECTRONIC EVIDENCE

As the computer age progresses, an ever-increasing proportion of the evidence we deal with spends some time on a hard drive or other electronic medium, and practitioners need to know how to lay a proper foundation for introducing this electronic evidence in litigation.  Georgia doctrine on electronic evidence has developed through the common law, and the new code appears to supplement the existing rules rather than supplant them.

Current Rules

New Code

“Electronic computer messages are held to the same standards of authentication as other similar evidence. The admission of transcripts of internet chat sessions are akin to the admission of videotapes, which are ‘admissible where the operator of the machine which produced it, or one who personally witnessed the events recorded, testifies that the videotape accurately portrayed what the witness saw take place at the time the events occurred.’”  Hammontree v. State, 283 Ga.App. 736 (2007) (Internal citations omitted).

§ 24-8-801(g):  A public record can be electronic;
§ 24-8-803(18):  A learned treatise can be electronic;
§ 24-9-901(b)(5):  Identification of a voice by electronic transmission can be used for identification;
§ 24-10-1001:  “Writing” and “recording” include electronic records; “duplicate” includes electronic copy.  “If data are stored in a computer or similar device, any printout or other output readable by sight, shown to reflect the data accurately, is an original.”
§ 24-10-1001(3).

So, records and other evidence stored electronically are as admissible as those stored on paper or in another tangible medium, and the standard for authenticating those records is the same as for other, non-electronic evidence.  Nevertheless, working with electronic evidence, a practitioner finds familiar themes can play out with minor variations.

Introducing Electronic Evidence

  • With electronic data, “the focus is not on the circumstances of the creation of the record, but rather on the circumstances of the preservation of the record during the time it is in the file so as to assure that the document being proffered is the same as the document that originally was created.”  In Re Vee Vinhnee, 336 B.R. 437, 444 (9th BAP 2006).
  • The court will ask certain questions that are common to all forms of evidence:
    • Is the evidence relevant? (§ 24-4-401 et seq.)
    • Is it inadmissible hearsay? (§ 24-8-801 et seq.)
    • Is the probative value substantially outweighed by the danger of unfair prejudice? (§ 24-4-403)
    • Is the evidence, in the form being offered, an original or a duplicate under the best evidence rule? (§ 24-10-1001 et seq.)

In this connection, the rule at the federal level appears to be that “the ‘original’ of information stored in a computer is the readable display of the information on the computer screen, the hard drive or other source where it is stored, as well as any printout or output that may be read, so long as it accurately reflects the data.” Lorraine v. Markel American Ins. Co., 241 F.R.D. 534, 2007 WL 1300739 (D.Md., 2007).  New code § 24-10-1003 also permits the use of duplicates in place of originals in most circumstances.

    • Can the content be proved by admissible secondary evidence?

Federal rule 1004, adopted almost verbatim as new code § 24-10-1004, provides that secondary evidence – that is, evidence of the content of a writing that is neither an original nor a duplicate – may be admitted when:  1) All originals were lost or destroyed; 2) No original can be obtained; 3) The original is in the possession of the other party, who was put on notice that the original was required and has not produced it; or 4) The writing pertains to a collateral matter.  Remember, though, that admitted secondary evidence may still be the subject of an inference by the jury adverse to the party responsible for the loss of the original.  See, Vodusek v. Bayliner Marine Corp., 71 F.3d 148 (4th Cir. 1995).

  • Most crucially, a court will ask:  Is it authentic? (§ 24-9-901 et seq.)  Authentication of electronic evidence can differ in technique from authentication of more traditional evidence, but it shares the same goal:  Testing whether the proffered evidence is what it purports to be.  But how do you show a court that the readable output you are offering reflects the electronically-stored data accurately?
    • Distinctive characteristics.  Emails contain the sender’s and recipient’s addresses, thread history, and the time and date the message was sent, and can even contain sufficient information about its origins – in the form of trade inscriptions and the like – to make it self-authenticating under § 24-9-902(7).
    • Metadata.  Metadata – or data about the data – consists of attributes embedded in computer files that reflect when files were accessed, created, or modified, who did so, what computer the person used, and similar information that can help establish that the document is what it purports to be.
    • Geotags.  A specific type of metadata most commonly inserted into photographs taken on smart phones and some cameras, a geotag records where – by longitude and latitude – a file was created.
    • Hash tags.  Just as museum curators photograph the edges of expensive paintings before they are framed so later they can tell the original from a clever forgery, an electronic document can have embedded in it a hash tag or hash value, derived from the document itself, which will change if the document is modified in any way.  Showing that the hash value for the document you wish admitted is the same as it was when the document was created is compelling evidence that the document has not been tampered with, changed by degradation, or otherwise altered.
    • Help desk.  Often the content expert is less helpful in authenticating electronic evidence than is the technician who manages or supports the storage system.  When the question is whether or not the evidence on offer has been damaged, corrupted, fabricated, or tampered with, it is the technologist who can provide the needed testimony about the storage system, its security, redundancy, and loss-recovery features, and assure the court that whatever came out of the system was the same as whatever went in.

Bibliography

  • Milich, Paul. (2002). Georgia Rules of Evidence, Second Edition. Thomson West.
  • Goode, Steven and Wellborne, Olin. (2009). Courtroom Handbook on Federal Evidence. Thomson Reuters/West.
  • Smith, Michael. (2011). O’Connor’s Federal Rules, Civil Trials. Jones McClure Publishing. Houston, Texas.
  • Kleiner, Jack. (updated 2001). Trial Handbook for Georgia Lawyers.  The Lawyers Co-Operative Publishing Co. Rochester, New York.
  • “The Proposed New Georgia Rules of Evidence: A Brief Overview.” State Bar of Georgia Evidence Study Committee, Paul S. Milich, Reporter. 2007.
  • Gifford, Michael. (2008). “Admitting Electronic Evidence in Federal Court: I’ve Got All This Electronic Data – Now What Do I Do With It?”
  • Whitaker, R. David. (2006). “Introducing Electronic Records Into Evidence” (PowerPoint presentation).

1 Special appreciation to Kenneth P. Crosson who assisted in the preparation of this paper.

2 The new Georgia rule adopts the corresponding federal rule verbatim, except that the new rule excludes statements of “any agent of the state in a criminal proceeding” from the exception.

3 See, Uniflex v. Saxon, 198 Ga.App. 445 (1991).

4 See, Brown v. Piggly Wiggly Southern, Inc., 210 Ga.App. 459 (1993).

5 However, in Rowell v. Bellsouth Corp., 433 F.3d 794 (2005), the 11th Circuit Court of Appeals held that a supervisor’s admission that an employee was fired because of his age was nothing more than that supervisor’s inadmissible opinion because he had no special knowledge of and was not personally involved in the decision to fire the employee – that is, the res gestae.  Where the circuits conflict, the new rules follow the 11th Circuit, so this case is helpful in marking the outer limits of this new doctrine.

6See, Knudsen v. Duffee-Freeman, Inc., 95 Ga.App. 872 (1957) (medical diagnosis does not fall under the business-records exception to the hearsay rule); Sheppard v. Sheppard, 229 Ga.App. 494 (1997) (tax assessments showing an appraiser’s opinion of value are inadmissible hearsay).