EVIDENCE

Question 1

Relevance

Answer 1

Relevance is the first hurdle to admissibility. Irrelevant evidence is
inadmissible.

Evidence is relevant if it has any tendancy to make a fact more or less probable than it would be without the evidence.

Question 2

Excluding Relevant Evidence

Answer 2

If the probative value of relevant evidence is substantially outweighed by the risk of unfair prejudice, misleading the jury, confusion, wasting time, or needlessly cumulative evidence, the evidence will be excluded.

Question 3

Hearsay

Answer 3

Hearsay is a statement made by a human declarant outside of the courtroom which is being offered to prove the truth of the matter asserted. Hearsay is inadmissible unless an exception applies. A “statement” for the purpose of hearsay is any intentional oral or written assertion. “Outside of court” for the purpose of hearsay means any statement made outside of the current proceedings.

Question 4

Nonhearsay/Evidence not offered for the truth of the matter asserted

Answer 4

CELVIS

If the evidence is being offered to prove Capacity, the Effect on the listener motive, intent, etc.), a Legally operative fact, a Verbal act, to Impeach a witness, or to prove State of mind, it is not hearsay, and thus admissible.

Admissible when offered to establish motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake.

Question 5

Statements by a Party Opponent

Answer 5

Statements by a party opponent are exempt from the rules of hearsay and therefore may be admissible.

Includes any statement by a named party, an adoptive admission by words/conduct/silence (as long as the party heard and understood the statement they are adopting as their own), an authorized admission by the party’s agent, an employee admission (if made within the scope and furtherance of employment), or a co-conspirator’s statement (if made in furtherance of the conspiracy).

Question 6

Hearsay exceptions when the declarant’s unavailability is immaterial

Answer 6

1. Present sense impression.
2. Excited utterance.
3. Then-existing mental/physical/emotional condition.
4. Statement for purpose of medical diagnosis or treatment.
5. Past recollection recorded.
6. Business records/records of regularly conducted activity.
7. Public records.
8. Ancient Documents.
9. Learned treatises.

Question 7

Hearsay exceptions when the declarant is unavailable

Answer 7

1. Former testimony in the same or related proceeding.
2. Dying declaration (don’t have to be actually dead).
3. Statement against pecuniary, proprietary, or penal interest.
4. Statement of personal history.
5. Statement that wrongfully caused the declarant’s unavailability.

Question 8

Declarant’s Unavailability

Answer 8

PRISM —

Privilege,
Refusal,
Incapacity,
Subpoena, or
Memory.

Question 9

Habit Evidence

Answer 9

Evidence of a person’s habit is relevant and admissible to prove that conduct was in conformity with that habit. The habit must be so frequent that it borders on reflexive.

Question 10

Character evidence of other crimes, wrongs, or acts

Answer 10

This kind of evidence may be admissible NOT for a propensity purpose, but instead to prove MIMIC — Motive, Intent, lack of Mistake, Identity, or a Common scheme or plan.

Question 11

Character Evidence General Rule

Answer 11

Character evidence is evidence of a person’s propensity or disposition to behave within a certain character trait, such as honesty, peacefulness, or violence. In general, character evidence is not admissible to show that one acted in accordance with that character trait, however, there are exceptions.

Question 12

Character Evidence Exceptions in a Civil Trial

Answer 12

Character evidence is only admissible in civil cases in which character is an essential element of the case.

Character is an essential element in DNICE cases — Defamation, Negligent entrustment/hiring/supervision, Immigration, Child custody, Entrapment.

Can only be introduced in the form or reputation, opinion, or specific acts.

Question 13

Character Evidence Exceptions in a Criminal Trial

Answer 13

Character evidence is inadmissible in the prosecution’s case in chief, however, the ∆ can “open the door” by introducing evidence of their own good character. Then, the prosecution can rebut with their own character evidence for the same trait.

A ∆ may also offer character evidence of a victim’s violent character, in which case the prosecution can rebut with evidence of the victim’s good character for the victim, and bad character of the ∆.

Evidence must be introduced in the form of reputation or opinion on direct examination, or specific acts during cross-examination.

Question 14

Character Evidence of Prior Sexual Conduct

Answer 14

The general rule is the rape shield law, which excludes evidence of a victim’s sexual behavior/history/predisposition.

In civil cases, evidence of prior sexual behavior is admissible if the probative value is greater than the potential of harm to the victim or unfair prejudice to any party.

In criminal cases, evidence is admissible to show consent or the source of semen/injury.

Question 15

Public Policy Exclusions of Relevant Evidence

Answer 15

Otherwise relevant evidence may be excluded due to public policy, including evidence of:
1. Subsequent remedial measures,
2. Compromises or offers to settle,
3. Payment of medical bills,
4. Pleas or plea discussions (if made directly with the prosecutor), or
5. The existence of liability insurance.

However, some of these might be admissible to show ownership, control, to impeach, or the feasibility of precautions.

Question 16

Relevance Balancing Test

Answer 16

The court will conduct a comprehensive analysis of various factors in considering whether the evidence’s probative value is substantially outweighed by the risk of unfair prejudice.

To determine the probative value, a court will consider how persuasive the evidence is, how material the fact to be proven is, and if there are other ways to prove that fact.

To determine how damaging the unfair prejudice may be, the court will consider if a limiting instruction can be given, the likelihood of damage, and the severity of the damage.

Question 17

Expert Opinions in Civil Cases

Answer 17

Georgia courts apply the Daubert test to determine if an expert’s testimony/opinion is valid.

The court will consider TAPES — whether their theory has been Tested, if it has general Acceptance in the field, if there has been Peer review of the theory, if there is a low/high rate of Error, and the existence and adherence to Standards in the field.

Question 18

What can expert witnesses base their opinions on?

Answer 18

Personal knowledge, facts presented during trial (hypotheticals), and/or facts presented before trial.

Question 19

Expert Opinion’s on an Ultimate Issue

Answer 19

Experts may give their opinion on an ultimate issue, but it cannot be stated as a legal conclusion. For example, an expert may say “the victim was strangled,” but not “the ∆ strangled the victim”.

Question 20

Seven Methods of Impeachment

Answer 20

1. Prior inconsistent statements.
2. Bias, motive, or interest.
3. Conviction of a crime.
4. Specific instances of bad acts.
5. Reputation or opinion for untruthfulness.
6. Sensory deficiencies.
7. Contradiction.

Question 21

Collateral Matter Rule

Answer 21

A collateral matter is evidence solely related to the creditability of a witness. Extrinsic evidence is inadmissible to prove a collateral matter.

Question 22

Prior Convictions to Impeach a Witness

Answer 22

If the ∆ is the witness, evidence of a prior conviction is admissible to impeach a witness if it is a felony (a crime punishable by death or at least one year in prison), or a >10 year old conviction in which dishonesty had to be proven as an element, as long as the probative value is greater than the prejudicial effect.

If the witness is not the ∆, the prior conviction is only admissible if the danger of unfair prejudice does not substantially outweigh the probative value.

Question 23

10 Year Rule for Impeachment by a Prior Conviction

Answer 23

If more than 10 years have passed since either conviction or release from confinement, evidence of said prior conviction is inadmissible unless its probative value substantially outweighs its prejudicial effect.

Question 24

6th Amendment Confrontation Clause

Answer 24

Under the 6th Amendment, ∆’s have the right to confront witnesses against them.

In a criminal case in which the declarant is unavailable, their testimonial statements will be inadmissible if the ∆ has not had the chance to cross-examine/”confront” the witness. (Not testimonial if made to address an ongoing emergency)

Some public policy exceptions may apply, such as witness protection or age.

Question 25

Marital Communications Privilege

Answer 25

Applies in both civil and criminal cases, but only to communications made during the marriage.

The privilege is held by the communicating spouse, who may prevent the other spouse from testifying.

Does not apply to crimes or intentional torts committed against one another or their children, divorce proceedings, or joint participation in a crime.

Question 26

Spousal Testimony/Immunity Privilege

Answer 26

Only applies to criminal cases, but protects all communications both before AND during the marriage.

Under the FRE, the privilege is only held by the spouse being compelled as a witness (the testifying spouse).

Does not apply to crimes or intentional torts committed against one another or their children

Question 27

Judicial Notice

Answer 27

Where the court accepts a fact as true.

A court can take judicial notice of facts that are not subject to reasonable dispute because they are either (a) generally known in the territory, or (b) readily determinable by a source whose accuracy cannot be reasonably questioned.

If a party supplies the necessary information, the court MUST take judicial notice.

A civil jury MUST take judicially noted facts as true, whereas criminal juries do NOT.

Question 28

What types of facts qualify for judicial notice in Georgia?

Answer 28

Facts that are not subject to dispute because they are either common knowledge in the territory, are capable of determination by a source whose accuracy is not reasonably called into question, or legislative facts (below).

• The existence and territorial extent of states and their forms of government;
• Symbols of nationality;
• Laws of all nations;
• Laws of the general assemblies of each branch;
• Laws of the US and states;
• Uniform rules of the court;
• Administrative rules;
• Customs of merchants;
• Admiralty and maritime courts;
• Political makeup of Georgia;
• All similar matters of legislative fact.

Question 29

Georgia “Open-Cross Examination” Rule

Answer 29

In Georgia, the subject of cross examination is not limited to only things discussed on direct examination.

In Georgia, a witness may be cross-examined on any matter relevant to any issue in the proceeding.

Question 30

What is the burden of proof in a civil action?

Answer 30

Generally, the burden of proof is by the preponderance of the evidence (meaning more likely than not).

The burden of proof may be raised to clear and convincing (meaning highly probable or reasonably certain) in healthcare liability claims or surgical suits.

Question 31

Georgia Advanced Notice Requirement for Criminal Cases

Answer 31

The prosecution must provide the ∆ with reasonable notice of their intent to use MIMIC evidence, unless excused by the court for a showing of good cause.

MIMIC = Motive, Intent, lack of Mistake, Identity, Common scheme or plan.

Question 32

Under Georgia law, in what form may a criminal defendant present character evidence?

Answer 32

Reputation, opinion, or specific acts.

Question 33

When is evidence of a specific act admissible?

Answer 33

When a person’s character is an essential element of a charge, claim or defense;

If a criminal defendant is testifying about themselves; or

On cross examination.

Question 34

Admissibility of a Prior DUI Conviction

Answer 34

Admissibility of a prior conviction for a DUI is admissible if the ∆ refused to take a blood/urine/breath test and the conviction is relevant to proving knowledge, plan, or absence of mistake or accident; or

If the identity of the driver is in dispute in the current case and the evidence is relevant to proving identity.

Question 35

Impeachment by Bias or Self Interest

Answer 35

A witness with a relationship to a party may be impeached for bias if their bias is related to the facts of the case and shows self-interest or self-preservation motive.

The foundation of bias must be laid outside of the jury’s presence.

Question 36

Qualification of Experts in Criminal Cases

Answer 36

Georgia does not apply Daubert or FRE Rule 702 for criminal cases. Instead, the qualification of an expert witness is within the sound discretion of the court.

An expert must only be educated in a particular skill or profession and have used a method that has verifiable certainty.

Question 37

Evidence of surrounding circumstances when constructing a contract

Answer 37

In Georgia, evidence of the surrounding circumstances are always admissible to aid in the construction of contracts.

Question 38

Exceptions to the Parol Evidence Rule in Georgia

Answer 38

Parol evidence (evidence of prior or contemporaneous agreements outside of a contract) is admissible to:
- Discharge an entire contract;
- Prove a new and distinct subsequent agreement;
- Enlarge the time for performance; or
- Change the place of performance.

Question 39

Evidence of Contemporaneous Writings in Georgia

Answer 39

All contemporaneous writings are admissible to explain each other. Applies to all contemporaneous writings, even those that contain a merger clause.

Question 40

Under Georgia law, may jurors access tangible evidence in the jury room?

Answer 40

Demonstrative evidence that has been properly admitted into evidence can be taken into the jury room during deliberations, as are other exhibits.

Question 41

Continuing Witness Rule

Answer 41

In Georgia, testimony given at trial and statements that are read into evidence are not allowed into the jury room during deliberation.

Testimonial evidence is meant to be heard once, when the jury is best able to judge the credibility of the speaker.

Question 42

Georgia “Physician’s Shield” Statute

Answer 42

A physician, hospital, or healthcare facility is not required to release a patient’s medical information except (a) when authorized by the patient, (b) when required by court order or subpoena, or (c) when the patient has placed their treatment/injury at issue in the case.

Question 43

Evidence of Subsequent Remedial Measures

Answer 43

Evidence of subsequent remedial measures is not admissible to prove

• Negligence
• Culpable conduct

However, evidence of subsequent remedial measures is admissible to prove:

• Product liability of a manufacturer

Question 44

Pretrial Disclosures Deadline

Answer 44

The prosecutor or a party in a civil case need only disclose any required evidence to the defendant ten days before trial.

Question 45

Under Georgia law, are a child’s statements about abuse hearsay?

Answer 45

No. A statement by a child under the age of 16 years that describes sexual contact or physical abuse is admissible through the testimony of the person to whom the statement was made.

The adverse party must be given pretrial notice, the child must testify at trial (unless this is waived), and the person to whom the statement was made must be subject to cross-examination.

Question 46

Dying Declaration

Answer 46

Hearsay exception when:
1. The declarant is unavailable.
2. The statement is made under the reasonable belief that the declarant’s death is imminent or impending.
2. The statement is concerning the cicrcumstances or cause of their death.

Question 47

Present Sense Impression

Answer 47

A present sense impression which describes an event while the declarant is perceiving it is a hearsay exception, regardless of if the declarant is available.

Question 48

Statement against Pecuniary, Penal, or Proprietary Interest

Answer 48

Admissible as a hearsay exception where the declarant is unavailable, since such a statement is not likely to have been said if it were not true.

Question 49

Statements by a Co-Conspirator

Answer 49

Statements by a co-conspirator made in furtherance of the conspiracy is not hearsay when offered against an opposing party.

Question 50

Prior Inconsistent Statements

Answer 50

In Georgia, prior inconsistent statements are admissible both for impeachment and as substantive evidence as long as the witness is available for cross examination.

Question 51

Motion to Recuse

Answer 51

A judge can hear a motion to recuse if they believe that they can reasonably determine whether the motion lacks factual support and are unbiased as to the basis of the motion.

DURING TRIAL, a judge cannot comment on the merits of the case or the defendant’s guilty, innocence, or character.

AFTER VERDICT, the judge has more latitude.

Recusal is appropriate only where the judge has a bias against a party or other conflict of interest.