5 K.I.S.S. TOP TEN NEW EVIDENCE RULES Paul S. Milich Georgia State University College of Law Atlanta, Georgia
7 1 of 9 Institute of Continuing Legal Education K.I.S.S Keep It Short & Simple November 14, 2014 Top Ten New Evidence Rules Paul S. Milich Professor of Law and Director of Advocacy Program Georgia State University, College of Law (1) So that s how we do it Rule 104 and Preliminary Fact Questions New O.C.G.A : (a) Preliminary questions concerning the qualification of a person to be a witness, the existence of a privilege, or the admissibility of evidence shall be determined by the court, subject to the provisions of subsection (b) of this Code section. In making its determination, the court shall not be bound by the rules of evidence except those with respect to privileges. Preliminary questions shall be resolved by a preponderance of the evidence standard. (b) When the relevancy of evidence depends upon the fulfillment of a condition of fact, the court shall admit it upon, or subject to, the introduction of evidence sufficient to support a finding of the fulfillment of the condition. All evidentiary issues are now decided by the trial judge. Technical legal issues are subject to rule 104(a). Relevance based objections (e.g., authentication) are subject to 104(b). Rule 104(a) Rule 104(b) Who makes the final decision? Judge Jury What evidence may the any non privileged same evidence the trial court consider? evidence jury will hear (incl. hearsay) Standard of proof for preponderance could a reasonable admission of the evidence jury find...
8 2 of 9 In determining whether a preliminary question of fact is a subsection (a) issue or a subsection (b) issue, apply this simple test: If the objection before the court is valid, would that destroy the relevance of the evidence for the purpose for which it is offered? If the answer is Yes, then it is a 104(b) question. If the answer is No, then it is a 104(a) question. See, Milich, GEORGIA RULES OF EVIDENCE, 3.7 (West ) COURTROOM HANDBOOK ON GEORGIA EVIDENCE, 2014 ed., Trial Court Rulings (West). (2) It can t be this easy the New Business Record Exception O.C.G.A (11) allows the use of a certification to lay foundation for a business record. A party intending to offer a record into evidence under this paragraph [902(11)] shall provide written notice of such intention to all adverse parties and shall make the record and declaration available for inspection sufficiently in advance of their offer into evidence to provide an adverse party with a fair opportunity to challenge such record and declaration. O.C.G.A (6) allows opinions in the record as long as the court is convinced, by a preponderance of the evidence, that the opinions meet the requirements of (lay opinions) or (expert opinions). Multiple hearsay in the record. The exception includes sources of information who had a business duty to report and who reported at or about the time of the events described. Any information provided by another person, if an outsider to the business preparing the record, must itself fall within a hearsay exception to be admissible. U.S. v. Gwathney, 465 F.3d 1133, 1141 (10 th Cir. 2006). Records prepared for purposes of litigation do not qualify under the business records rule. (But see, medical narrative statute, renumbered ). Integrated Records Rule A business may lay foundation for a record generated by another business. The foundation witness must testify as to how the originating business produced the record in order to satisfy the statutory requirements that the record was made in the regular course of business at or near the time of the events described in the record. The witness may obtain this knowledge by documents supplied by the business that produced the records or by speaking to counterparts in the originating business. This is not objectionable as hearsay since the foundation is a preliminary question subject to O.C.G.A (a) which allows the trial judge to consider any non-privileged evidence, including hearsay, in determining whether the foundation is met. See, Milich, GEORGIA RULES OF EVIDENCE, (West ). COURTROOM HANDBOOK ON GEORGIA EVIDENCE, 2014 ed., Business Records (West).
9 3 of 9 (3) Does the cop have to testify? Public Records New O.C.G.A (8) creates a hearsay exception for... 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. There are three generic categories of public records under the new rules. The first, (A), mundane records of the office or agency, are admissible without restriction in civil and criminal cases. The second category, (B), matters observed pursuant to duty, is unavailable to the prosecution in a criminal case when the author or sources of the information are law enforcement acting in an investigative capacity. When a law enforcement official prepares a report as a mundane, ministerial function, and not in the course of an investigation, the report is admissible. Thus, for example, an intoxilyzer inspection certification is admissible without the testimony of the inspector under this exception. The third category, (C), investigative reports, is completely unavailable to the prosecution in a criminal case. For example, a crime lab report is inadmissible in a criminal trial without the testimony of someone from the crime lab. Of course, if the author of or sources in the report testify at trial, the report may be used, with proper foundation, to refresh recollection ( ) or as past recollections recorded ( (5)). Motor vehicle accident reports are inadmissible under O.C.G.A : Neither any accident report filed with the Department of Transportation, the action taken by the Department of Driver Services pursuant to this chapter, the findings, if any, of the department upon which such action is based, nor the security filed as provided in this chapter shall be referred to in any way, nor shall they be any evidence of the negligence or due care of either party, at the trial of any action at law to recover damages. See, Milich, GEORGIA RULES OF EVIDENCE, (West ) COURTROOM HANDBOOK ON GEORGIA EVIDENCE, 2014 ed., Public Records (West)
10 4 of 9 (4) Finis res gestae! Now what? (803(1),(2),(3)) As Professor Morgan wrote nearly a hundred years ago: The marvelous capacity of a Latin phrase to serve as a substitute for reasoning, and the confusion of thought inevitably accompanying the use of inaccurate terminology, are no where better illustrated than in the decisions dealing with the admissibility of evidence as res gestae. The new rules replace res gestae with three descriptive hearsay exceptions that have worked well in federal and state courts for the past 30 plus years: 803(1), (2), and (3). 803(1): A statement describing or explaining an event or condition made while the declarant was perceiving the event or condition or immediately thereafter. 803(2): 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. 803(3): 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. See, Milich, GEORGIA RULES OF EVIDENCE, (West ) COURTROOM HANDBOOK ON GEORGIA EVIDENCE, 2014 ed., Present Sense Impression, Excited Utterance, Statement of Mind/Body/Emotion Exception to Hearsay (West). (5) My truck driver shouldn t have said that Agent Admissions The new rules clarify and broaden the scope of agency admissions in contrast to prior Georgia law. New O.C.G.A (d)(2)(D) sets forth two simple requirements for an agent or employee admission: (1) the statement was made during the agency or employment relationship; and, (2) the subject matter of the statement concerns a matter the agent or employee would know about by virtue of his agent or employee duties. Thus even though an employee may not have been authorized to make the statement in question, the court may admit it over a hearsay objection if it meets the requirements of this subsection. See, Milich, GEORGIA RULES OF EVIDENCE, (West ) COURTROOM HANDBOOK ON GEORGIA EVIDENCE, 2014 ed., Agency Admissions (West).
11 5 of 9 (6) My co-conspirator shouldn t have said that Co-Conspirator Admissions the Return of the In Furtherance Requirement New O.C.G.A (d)(2)(E): A statement by a coconspirator of a party during the course and in furtherance of the conspiracy, including a statement made during the concealment phase of a conspiracy. A conspiracy need not be charged in order to make a statement admissible under this subparagraph. The new rule restores Georgia s co-conspirator exception to its original common law form by explicitly requiring that the statement have been in furtherance of the conspiracy. The jury is no longer instructed on application of this hearsay exception. Under the new rules, the judge alone decides whether, by a preponderance of the evidence, the foundation exists to allow admission of the statement. The court may consider the offered statement along with other evidence in making this determination but the offered statement alone is not sufficient to establish the basis for its admissibility but must be supported by independent evidence. See, Milich, GEORGIA RULES OF EVIDENCE, (West ) COURTROOM HANDBOOK ON GEORGIA EVIDENCE, 2014 ed., Co- Conspirator s Statements (West). (7) I did a bad, bad thing Statements Against Penal Interest New O.C.G.A (b)(3) A statement against interest is a statement: (A) Which a reasonable person in the declarant's position would have made only if the person believed it to be true because, when made, it was so contrary to the declarant's proprietary or pecuniary interest or had so great a tendency to invalidate a claim by the declarant against another or to expose the declarant to civil or criminal liability The new rule admits statements against penal interest when the declarant is unavailable to testify at trial. As a condition to using the exception, the proponent (whether the prosecutor or defense counsel) must show that the statement is supported by corroborating circumstances that clearly indicate the trustworthiness of the statement. See, Milich, GEORGIA RULES OF EVIDENCE, (West ) COURTROOM HANDBOOK ON GEORGIA EVIDENCE, 2014 ed., Statements Against Interest (West).
12 6 of 9 (8) We ve lost our Bent of Mind Restoration of the Character Rule in Criminal Trials Georgia was the only jurisdiction in the English speaking universe that admitted evidence of the accused s unrelated past crimes and other bad acts to prove his bent of mind or course of conduct. The new rules reboot the law in this area by adopting Federal Rule 404(b) which follows the traditional common law approach of admitting evidence of the accused s other crimes, wrongs, or acts when specifically relevant to the necessary proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident. New O.C.G.A (b). The accused also may use 404(b) when relevant. Rule 404(b) applies to civil as well as criminal cases. New O.C.G.A : DUI exceptions: (paraphrasing the statute) (1) If defendant in this case refused the test and testifies that he did so for reasons that would be rebutted by the fact that he took the test in a prior instance and was convicted, then the prior is admissible in rebuttal. (2) Where defendant claims he was not the driver, a prior DUI is admissible to prove identity. McMullen v. State, 316 Ga. App. 684, n.30, 730 S.E.2d 151 (2012) ( We note in passing that the new evidence code adopted by the Georgia General Assembly, effective January 1, 2013, eliminates the bent-of-mind and course-of-conduct exception to similar-transaction character evidence. ) Jones v. State, Ga. App. (2014 WL ). See, Milich, GEORGIA RULES OF EVIDENCE, (West ) COURTROOM HANDBOOK ON GEORGIA EVIDENCE, 2014 ed., Independent Crimes or Acts (West). (9) Didn t you lie to your parents about where you were going? Unrelated acts of lying as a tool of impeachment Rule 608(b) Former Georgia law did not allow a cross-examiner to question a witness about past acts of untruthfulness, unrelated to the case, to impeach that witness s credibility. New O.C.G.A (b)(1) gives the trial court discretion to allow such questions but the cross-examiner must accept the witness s answer. See, Milich, GEORGIA RULES OF EVIDENCE, 14.5 (West ) COURTROOM HANDBOOK ON GEORGIA EVIDENCE, 2014 ed., Character Witnesses (West)
13 7 of 9 (10) You can say this but you can t say that Factual Bases of Expert Opinions Under the new rules, an expert in a criminal or civil case may base her opinion on inadmissible evidence, including hearsay, if the facts are of a type reasonably relied upon by experts in the particular field in forming opinions or inferences upon the subject. New O.C.G.A In a jury trial, the otherwise inadmissible facts upon which the expert relied shall not be disclosed to the jury by the proponent of the opinion or inference unless the court determines that their probative value in assisting the jury to evaluate the expert's opinion substantially outweighs their prejudicial effect. Opposing counsel may inquire into any and all factual bases of an expert s opinion. There is no change in the basic rule that an expert may not be a mere conduit for the opinions of other experts not before the court. Although an expert may base her opinion, in part, on what she learned from other experts, the testifying expert must have, and be able to defend, her own opinion, arrived at independently. Factual Bases of Expert s Opinion Facts Opinion Admissible? May Disclose Facts to Jury? Otherwise admissible Yes Yes Inadmissible BUT reasonably relied upon by experts in field Yes No (unless special showing) Inadmissible and NOT only if facts not No reasonably relied upon essential to opinion by experts in field See, Milich, GEORGIA RULES OF EVIDENCE, 15.5 (West ) COURTROOM HANDBOOK ON GEORGIA EVIDENCE, 2014 ed., Expert Witnesses Examination at Trial (West)
14 8 of 9 For an overview of 38 significant changes from the old rules to the new rule, see, Georgia s New Evidence Code An Overview, 28 Ga. St.L.Rev. 379 (2012) (may be downloaded for free from the GSU Law Review website) Conversion Table Pre-2013 Georgia Statutes that Have Been Retained and Renumbered (some with modifications) (If a pre-2013 code section from Title 24 is not on the list below, it was abolished) Pre-2013 Statute New 2013 Statute (4) to to to to to to to et seq et seq to to to to to , 21, , 21, to to
15 9 of to to (b) to to to to to to to to to to to to to to to 154 Professor Milich s books: GEORGIA RULES OF EVIDENCE and COURTROOM HANDBOOK ON GEORGIA EVIDENCE are available from: West Publishing