Evidence Flashcards

Question

V. RESPONSIBILITIES OF THE PARTIES AND THE FEDERAL RULES | ***FRE 103

Answer 1

***FRE 103(a)(1)OF EVIDENCE o If the ruling admits evidence, a party, on the record must timely object or make a motion to strike the evidence and states the specific ground upon which the motion or objection is made unless it is obvious from the context of the evidence. *** FRE 103(a)(2) o If the ruling excludes evidence, a party must inform the court of what the substance of the excluded evidence is by an offer of proof, unless the substance of the excluded evidence is obvious from the context of the evidence.

Answer 2

1. The question and answer method a. A statement by counsel of what the evidence would have shown; 2. A statement by counsel of what the evidence would have been if it had been admitted; 3. A written statement by counsel outline the substance of the excluded evidence; 4. A written statement of the excluded evidence by the witness who would have provided the excluded evidence.

Answer 3

o Error may not be based on a ruling excluding evidence unless the substance of the evidence was made known to the court by offer of proof or was apparent from the context within which questions were asked. o Merely telling the court the content of proposed testimony is not an “offer of proof.” o Specificity and detail are the hallmarks of a good offer of proof of testimony. o In order to qualify as an adequate “offer of proof,” the proponent must, first, describe the evidence and what it tends to show and, second, identify the grounds for admitting the evidence. o A twofold purpose underlies the required showings for an adequate offer of proof; first, an effective offer of proof enables the trial judge to make informed decisions based on the substance of the evidence, and second, an effective offer of proof creates a clear record that an appellate court can review to determine whether there was reversible error in excluding the evidence o “[W]here offer of proof is necessary, it is error for the trial court to refuse an opportunity to counsel to state what he proposes to prove by the evidence offered.” Castell v. State, 252 Ga. 418 (1984)

Answer 4

o If the court admits evidence that is admissible against a party or for a purpose –but not against another party or for another purpose-the court, on timely request, must restrict the evidence to its proper scope and instruct the jury accordingly.

Answer 5

o The defense raised no objection on hearsay grounds; nor did counsel request a limiting instruction to inform the jury that the recording was admitted solely to impeach Palmer's testimony. The trial then resumed, with Sherman taking the stand and identifying the tape recording. The court admitted the recording into evidence and played it before the jury without any limiting instruction. o Since the court had no duty to give a limiting instruction in the absence of a request, the court of appeals may reverse only if it concludes that the court's failure to give the instruction constituted plain error. o Lawyers frequently choose for strategic reasons not to request limiting instructions. In order to find plain error in this context, therefore, a court must conclude that, as a matter of law, counsel's strategic choice resulted in a manifest miscarriage of justice. In this case the appellate court found no plain error in the trial court's decision to admit the tape-recorded statement for its nonhearsay purpose without a cautionary instruction.

Answer 6

o In a civil case, unless a federal statute or these rules provide otherwise, the party against whom a presumption is directed has the burden of producing evidence to rebut the presumption. But this rule does not shift the burden of persuasion which remains on the party who had it originally. o The burden of persuasion is the affirmative duty of a party to establish his or her right to judicial relief by convincing the trier of fact, the judge or the jury, that the facts asserted are true and support the allegations.

Answer 7

o In a civil case, state law governs the effect of a presumption regarding a claim or defense for which state law supplies the rule of decision. o Ga. Code Ann., § 24-6-601  It is presumed that every person is competent to be a witness unless otherwise provided by the Georgia evidence code. o Ga. Code Ann., § 24-6-602 (in part)  A witness may not testify to a matter unless evidence is introduced sufficient to support a finding that the witness had personal knowledge of such matter.  This supports the “presumption” that a witness is testifying based upon personal knowledge of the matter about which they are giving testimony. o Ga. Code Ann., § 24-6-603 (in part)  Before testifying, every witness shall be required to declare that he or she will testify truthfully by oath or affirmation administered in a form calculated to awaken the witness’s conscience and impress the witness’s mind with the duty to do so  This supports the “presumption” that witnesses are telling the truth unless they are rebutted or impeached.

Answer 8

Standards Allocated to Burdens Allocated to the Parties Burden of Production of Evidence o Sometimes Called Burden of Going Forward o The “burden of going forward,” also called the “burden of production,” is a procedural term. It refers to the party that is legally obligated to initiate the production of evidence on a claim or defense. The plaintiff has the burden of going forward as to its claims and any affirmative defenses to the defendant's counterclaims; the defendant has the burden of going forward as to its affirmative defenses and counterclaims. This is so in both civil and criminal cases. o If a party fails to introduce any evidence to support an issue, whether a claim or an affirmative defense, on which it has the burden of going forward, the remedy is that the court will, on request, enter a directed verdict on that claim or defense against the party having the burden. If a party has met its burden of going forward and made a prima facie case, the burden of going forward with contrary evidence to disprove the issue then shifts to the other side. If the other side presents contrary evidence, the effect is to make the issue a disputed one for the jury to resolve. If the other side fails to present contrary evidence, the effect depends on the quality and quantity of the proponent's evidence: If the proponent's unrebutted evidence is so overwhelming that no reasonable minds could differ, the judge will direct a verdict on that issue in favor of the proponent; if the proponent's evidence, though unrebutted, is not so overwhelming, the effect is to make the issue one for the jury to decide

Answer 9

o If one party introduces “evidence of circumstances which under the law causes a presumption of undue influence to arise, the burden of going forward with the evidence shift[s] to the [other party].” Thus, the burden being shifted to the other party is the burden to produce evidence rebutting the presumption; it is not the ultimate burden of persuasion, which never shifts from the party asserting the claim of undue influence.

Answer 10

o The burden of going forward with evidence shifts from party to party in a civil case.

Answer 11

o The burden of persuasion is the affirmative duty of a party to establish his or her right to judicial relief by convincing the trier of fact, the judge or the jury, that the facts asserted are true and support the allegations. o Burden of Proof by a Preponderance of the Evidence o Generally Used in Civil Proceedings o “Preponderance of the evidence” or preponderant evidence,” need not be sufficient to wholly free the mind from a reasonable doubt, but is sufficient if it inclines an impartial and reasonable mind to one side rather than the other. o The trial court acts as a gatekeeper with regard to the admissibility of evidence

Answer 12

o It is generally agreed by all courts that the jury will not be permitted to believe testimony that is contradicted by physical facts.

Answer 13

o Clear and convincing evidence is an intermediate standard of proof, requiring a higher minimum level of proof than the preponderance of the evidence standard, but less than that required for proof beyond a reasonable doubt.

Answer 14

o “Evidence that, when weighed against evidence in opposition, will produce in the mind of the trier of fact a firm conviction as to each essential element of the claim and a high probability as to the correctness of the conclusion. Proof by clear and convincing evidence requires a level of proof greater than a preponderance of the evidence, but less than beyond a reasonable doubt.”

Answer 15

o The role of presumptions in the applications of the burden of proof responsibilities. o Fraud is never presumed o Burden of Proof is on the party asserted that a fraud has taken place. o The Standard of Proof is by “clear and convincing” evidence.

Answer 16

o Disclosure of HIV Confidential Information o Need for guardianship of alleged incapacitated adult o Recovery of punitive damages in tort actions o Proceeding to terminate parental rights

Answer 17

o Involuntary sterilization determination requires clear and convincing evidence.

Answer 18

o Generally use in criminal prosecutions o The burden of proof in criminal prosecutions never shifts to the accused. o Reasonable doubt is defined as when a juror or trier of fact can have some doubt in his or her mind, but it cannot be a doubt that would affect a reasonable person’s “moral certainty” that a defendant is guilty. Because a defendant’s liberty is often at stake in a criminal trial, the reasonable doubt standard is the highest standard in the legal system.

Answer 19

o Due Process Clause prohibits the state from using evidentiary presumptions in a jury charge that have the effect of relieving the state of its burden of persuasion beyond a reasonable doubt of every essential element of a crime.

Answer 20

a. “mandatory presumption” would require the jury to infer the presumed fact as having been proven without actual proof being submitted for the jury’s consideration. b. “mandatory presumption” that shifts the burden of proof to the defendant is impermissible in a criminal case. c. “permissive presumption of permissive inference” suggests to the jury a possible conclusion to be drawn if the state proves predicate facts, but does not require the jury to draw that conclusion. i. (More detailed analysis and application of “presumptions will be a part of our next class.)

Answer 21

o ‘[C]ircumstantial evidence’ means evidence which only tends to establish the issue by proof of various facts, sustaining by their consistency the hypothesis claimed.”

Answer 22

o “Direct evidence is evidence which, if believed, resolves a matter in issue. Circumstantial evidence also may be testimonial, but even if the circumstances depicted are accepted as true, additional reasoning is required to reach the desired conclusion.

Answer 23

• Common Definition of Presumption - To suppose something to be true without proof the application of proof. Presumptions are either: • Rebuttable (presumptions of fact) or o Presumptions of fact are also called permissive presumptions. These presumptions can be rebutted

Answer 24

o Presumptions of law are also called mandatory presumptions. These presumptions can NOT be rebutted and once established must be accepted.

Answer 25

o The effect of the existence of facts created by a presumption is to be governed by state law. o Presumptions are either (1) rebuttable (presumptions of fact) or (2) conclusive (presumptions of law)

Answer 26

Presumption of Facts  These presumptions are sometimes referred to as “permissive” presumptions.  These are circumstantial inferences that the law has determined to be the most rational hypotheses from the given facts and these presumptions may or may not be rebutted based upon the credit given to the evidence produced.

Answer 27

o Georgia did not adopt the FRE 301 or FRE 302 dealing with presumptions. o Presumptions of fact are exclusively questions for the jury, to be decided by the ordinary test of human experience.  For example, in a medical malpractice action, the presumption is that the medical services were performed in an ordinary skillful manner, that the burden is on the one receiving the services to show a want of due skill and diligence, and that the proof required to overcome such a presumption of care, skill and diligence must come from an expert witness.  Overstreet v. Nickelsen, 170 Ga. App. 539 (1984) o For example, in a criminal case the presumption of innocence continued until overcome by evidence beyond a reasonable doubt to establish guilt.  Coffin v. U.S., 56 U.S. 432 (1895)  The law presumes that every man in his private and official character does his duty, until the contrary is shown. See, Knight Drug co. v. Naismith, 73 Ga. App. 793 (1946)  For example, in cases attempting to establish the death of a person who has disappeared there is the presumption of the continuance of life for seven years. • The law presumes that an individual is sane and competent until there is evidence to the contrary, and the burden is on the party attacking a contract to show the incompetency of the signer at the time of the execution thereof. • Conclusive Presumptions or Presumptions of Law o Conclusive presumptions of law are termed estoppels; averments to the contrary of such presumptions shall not be allowed.  Ga. Code Ann., § 24-14-24  A record or judgment un-reversed;  The proper conduct of courts and judicial officers acting within their legitimate spheres; • A presumption imposes on the party against whom it is directed the burden of disproving the existence of the presumed fact(s). • McNulty v. Cusack, 104 So. 2d 785 (1958)  Evidence needed to create a presumption of negligence.  Duty to go forward and rebut presumptions once established. o O’Brien v. Equitable Life Assur. Soc’y, 212 F. 2d 383 (1954)  Evidence required to create a presumption of accidental death in order to collect double indemnity benefits. o State of Maryland v. Baltimore Transit Co., 329 F. 2d 738 (1964). • Presumption of due care for one’s own safety. o County Court of Ulster County v. Allen, 442 U.S. 140 (1979)  State law creating a permissive presumption that all of the occupants of automobile in which illegal firearms are found may be presumed to have possession of those firearms.  The trial court told the jurors that it could infer or presume possession of the firearms by the occupants of the car, but they did not have to presume or infer that fact. He made it clear that it was not a mandatory presumption. o Knighton v. State, 248 Ga. 199 (1981)  The Georgia Supreme Court held that a permissive, or rebuttable, presumption that contraband found in the house occupied by husband and wife belongs to husband by virtue of statutory status as head of the household is unconstitutional. o Sandstrom v. Montana, 442 U.S. 510 (1979)  Mandatory presumptions that shift the burden of proof to the defendant are impermissible in criminal cases.  In this case the trial court told the jurors that “the law presumes that a person intends the ordinary consequences of his voluntary acts. The Supreme Court reversed the trial court and stated this charge could have been interpreted as creating a conclusive presumption or presumption of law. o Watkins v. Prudential Ins. Co., 173 A. 644 (1934)  The so-called ‘presumption against suicide’ can take the place of evidence of accidental death in sustaining an averment of death ‘effected solely through external, violent and accidental means.’ o Belch v. Gulf Life Ins. Co., 219 Ga. 823 (1964)  When death from external and violent means is established, there is a presumption against suicide, which the law recognizes as arising out of a natural instinct and love of life. The presumption against suicide may be used as evidence going to support a verdict of accident. The presumption, which is a presumption of fact, vanishes only when the jury, in consideration of all the facts and circumstances, determines that the preponderance of evidence is against the theory of accident. o Clarkcraft v. Dunaway, 196 Ga. App. 12 (1990)  The “mailed letter” presumption  Before any presumption arises that a letter has been received through the mails it must be shown that ‘the letter • was written; • was properly addressed to the party; • contained the correct postage; and • was duly mailed in the United States Post Office o Riley Hill General Contractor, Inc. v. Tandy Corp., 737 P.2d 595 (Ore. 1987)  This case deals with the issue of clear and convincing evidence standard of proof.  Here there are two different standards of proof which must be applied.  Proof of damages by the preponderance of the evidence standard  Proof of Fraud by the clear and convincing evidence standard.  The greater weight of the evidence required in a civil (non-criminal) lawsuit for the trier of fact (jury or judge without a jury) to decide in favor of one side or the other. This preponderance is based on the more convincing evidence and its probable truth or accuracy, and not on the amount of evidence. • Criminal cases requires a standard of proof that a person has committed a crime by the “Beyond a Reasonable Doubt Standard” • The standard that must be met by the prosecution's evidence in a criminal prosecution: that no other logical explanation can be derived from the facts except that the defendant committed the crime, thereby overcoming the presumption that a person is innocent until proven guilty. • The term connotes that evidence establishes a particular point to a moral certainty and that it is beyond dispute that any reasonable alternative is possible. It does not mean that no doubt exists as to the accused's guilt, but only that no Reasonable Doubt is possible from the evidence presented. • In re Winship, 397 U.S. 358 (1970) o “the requirement of proof beyo0nd a reasonable doubt in a criminal case is bottomed on a fundamental value determination of our society that it is far worse to convict an innocent man than to let a guilty man go free.” • Clear and Convincing Evidence - A medium level of burden of proof which is a more rigorous standard to meet than the preponderance of the evidence standard, but a less rigorous standard to meet than proving evidence beyond a reasonable doubt.

Answer 28

o The burden of going forward, also called the burden of producing evidence, burden of production, or the burden of proceeding, requires a party in a lawsuit to refute or explain each item of evidence introduced that damages or discredits his or her position in the action, as a trial progresses. o When the proceedings reached this stage, with no evidence in the record to show defendant's negligence, and such evidence as there was revealed the exercise of due care on the part of the defendant, the burden of going forward with the evidence shifted to the plaintiff who then had the burden of producing evidence to show negligence on the part of the defendant. This the plaintiff failed to accomplish. While the plaintiff's initial evidence made out a prima facie case of negligence, because of the force of the statute, the defendant's evidence offset this by proving affirmatively that he exercised at least the degree of care which the bailment in question called for.”

Answer 29

* The obligation of a party to introduce evidence that persuades the factfinder, to a requisite degree of belief, that a particular proposition of fact is true. In civil cases, a party's burden is usually "by a preponderance of the evidence." In criminal cases, the prosecution's burden is "beyond a reasonable doubt." * In a matter involving the question of whether or not the statute of limitations prevents a claim from being asserted, “[o]nce the movant has presented evidence that the claim is time-barred, “[t]he burden of persuasion then shifts to the nonmovant to present some evidence showing that an issue exists that the statute has not run but has been tolled.”

Answer 30

• Generally right to opening and closing arguments is not matter resting merely in discretion of trial judge, but is a substantial right of the person who must introduce proof to prevent judgment against him.

Answer 31

This term is applied to order or sequence in which evidence is allowed to be introduced. Generally, the burden of the party bearing the burden of proof must go first, however, to a considerable extent, the sequence of evidence presentation is under the control and the sound discretion of the trial judge. o Although the trial judge may control the order in which evidence is presented, the judge may not allow the order of proof to be presented in such a way as to prejudicially affect the weight of the evidence and how the jurors receive the evidence. • Atkinson v. Smith, 9 N.B. 309 (1859) o Limiting the scope of cross-examination • Seguin v. Berg, 221 N.Y.S. 2d 169 (1979) o Right to elicit testimony in support of a counter-claim. • Boller v. Cofrances, 166 N.W. 2d 129 (1969) o The application of the “wide-open” cross-examination role.

Answer 32

o Cross-examination should not go beyond the subject matter of the direct examination and matters affecting the witness’s credibility. The court may allow inquiry into additional matters as if on direct examination. o Leading Questions. Leading questions should not be used on direct examination except as necessary to develop the witness’s testimony. Ordinarily, the court should allow leading questions: o (1) on cross-examination; and o (2) when a party calls a hostile witness, an adverse party, or a witness identified with an adverse party.

Answer 33

o The right of cross-examination includes the right to question a witness about all the relevant issues in the case, not merely those matters that were inquired into during direct examination. See, Ficken v. City of Atlanta, 114 Ga. 970 (1902) o Stone v. State, 250 Ga. 718 (1983) o The right of cross-examination in this state includes questioning a witness about subjects relevant to any of the issues in the case, not simply those matters elicited on direct examination. o James v. State, 260 Ga. App. 536 (2003) o As a general rule, it is better that cross-examination should be too free than too much restricted. o The right of cross-examination includes questioning a witness about subjects relevant to any of the issues in the case, not simply those matters elicited on direct examination. o Trial court ruling that curtails cross-examination is reviewed for abuse of discretion. o Trial court ruling that curtails cross-examination is reviewed for abuse of discretion.

Answer 34

o Evidence is material if it is offered to prove or disprove a specific fact in issue. Thus, evidence is material if it relates to one of the particular elements necessary for proving or disproving a case. If evidence is not material, it the defense or prosecution may object to the use of the evidence on grounds that it would mislead the trier of fact, result in inefficient trials, and prove a distraction to the substantive issues. The exclusion of immaterial evidence is sometimes called the collateral facts rule.

Answer 35

o Evidence is relevant if it indicates a relationship between facts that increases the probability of the existence of the other. A trier of fact (judge or jury) determines the sufficiency or weight of the given evidence. In other words, the trier of law decides whether the evidence is relevant enough to be admitted, but the trier of fact decides how much it counts (i.e. how much weight or probative value) in determining the verdict. o Relevance is a low standard, requiring only that the evidence in question have “any tendency to make a fact [of consequence] more or less probable than it would be without the evidence.”  United State v. Sumner, 522 Fed. Appendix 802 (2013)  Smart v. State, 299 Ga. 414 (2016) • “To evaluate relevancy, this Court relies on OCGA § 24–4–401, which defines “relevant evidence” as “evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.”

Answer 36

• Evidence is relevant if it has any tendency to make a fact more or less probable than it would be without the evidence; and the fact is of consequence in determining the action.  See, Ga. Code Ann., § 24-4-401 • As used in this chapter, the term “relevant evidence’ means evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence. • Under OCGA § 24–4–401, the term “relevant evidence” means “evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.” In addition, OCGA § 24–4–402 provides:  All relevant evidence shall be admissible, except as limited by constitutional requirements or as otherwise provided by law or by other rules, as prescribed pursuant to constitutional or statutory authority, applicable in the court in which the matter is pending. Evidence which is not relevant shall not be admissible.

Answer 37

 A trial court's ruling that evidence is relevant will not be reversed absent abuse of discretion. This is so because trial courts, unlike appellate courts, are familiar with a piece of litigation from its inception, hear first-hand the arguments of counsel, and consider disputed evidence within the context of an entire proceeding. Thus, as an appellate court we defer to the trial court with regard to the admission of evidence, unless the lower court's decision is so flawed as to constitute an abuse of discretion. Moreover, unless the potential for prejudice in the admission of evidence substantially outweighs its probative value, the Georgia rule favors the admission of any relevant evidence, no matter how slight its probative value. Even evidence of doubtful relevancy should be admitted and its weight left to the jurors. And if evidence is competent for any purpose, its admission does not constitute error.

Answer 38

• Relevant evidence is admissible unless any of the following provides otherwise: o The United States Constitution,  Evidence taken in violation of the protections afforded to an individual in the Fourth Amendment, for example.  Evidence taken in violation of the protections afforded to an individual in the Fifth Amendment, for example. o A federal Statute;  Evidence that violates the federal Store Communications Act (SCA), 18 U.S.C. Chapter121, for example.  The SCA creates Fourth Amendment-like privacy protection for email and other digital communications stored on the internet. It limits the ability of the government to compel an ISP to turn over content information and noncontent information (such as logs and "envelope" information from email). In addition, it limits the ability of commercial ISPs to reveal content information to nongovernment entities. o These rules; or  FRE 412  The federal Rape Shield Statute which limits certain evidence concerning the victim of a rape or sexual assault, for example. o Other rules prescribed by the Supreme Court.  Miranda v. Arizona, 384 U.S. 436 (1966)  The United States Supreme Court held that both inculpatory and exculpatory statements made in response to interrogation by a defendant in police custody will be admissible at trial only if the prosecution can show that the defendant was informed of the right to consult with an attorney before and during questioning and of the right against self-incrimination before police questioning, and that the defendant not only understood these rights, but voluntarily waived them, for example.

Answer 39

• The court may exclude relevant evidence if its probative value is substantially outweighed by a danger of one or more of the following: 1. Unfair prejudice, 2. Confusing the issues, 3. Misleading the jury, 4. Undue delay, 5. Wasting time, or 6. Needlessly presenting cumulative evidence

Answer 40

o Relevant evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury or by consideration of undue delay, waste of time, or needless presentation of cumulative evidence.  “probative” means having the ability to prove a fact. Probative value is a weight given to the item of evidence rather than whether it may or may not proof something (see definition of discussion below of probative value determinations).

Answer 41

1) Gauging the probative value of the evidence, 2) Measuring the likely negative effects from admitting the evidence, and 3) Consideration of mitigating actions, short of excluding the evidence, that the trial court might take and how those actions affect the balance. • Rule 403 is designed for jury trials. • The exclusion of relevant evidence under Rule 403 (both federal and state) is an “extraordinary remedy.

Answer 42

 Exclusion of otherwise probative and relevant evidence under the statute allowing the exclusion of relevant evidence due to prejudice, confusion, or waste of time is an extraordinary remedy which should be used only sparingly

Answer 43

• Financial Worth and Condition of the Parties to an Action • City of Cleveland v. Peter Kiewit Sons’ Co., 624 F. 2d 749 (1980) o Evidence of the Size of the Corporation • Plump v. Curtis, 33 A. 998 (1895) o Evidence of the Wealth of a Party to Litigation o This case shows how evidence of financial worth, in some instances, can be relevant. • Hornsby v. State, 139 Ga. App. 245 (1976) o Evidence of Wealth or Worldly Circumstances of the Defendant o “[E]vidence of the wealth or worldly circumstances of a party is never admissible except in cases where position or wealth is necessarily involved. • State v. Mathis, 221 A. 2d 529 (1966) o The interjection of the defendant’s poverty was irrelevant and not material to the issue of whether or not he committed a robbery and murder. • Reed v. General motors, Corp. 773 F.2d 660 (5th Circ. 1985) o “Because the district court admitted evidence of the amount of liability insurance carried by the defendants and because we are unable to conclude that this was not prejudicial both on the question of the defendants' liability and the amount of damages awarded, we reverse the judgment in favor of the plaintiffs.: o “The scent of a skink thrown into the jury box cannot be wiped out by a trial court’s admonition to ignore the smell.” o FRE 411 - Evidence that a person was or was not insured against liability is not admissible upon the issue of whether the person acted negligently or otherwise wrongfully. But the court may admit this evidence for another purpose such as proving a witness’s bias or prejudice or providing agency, ownership, or control. • McClellan v. Evans, 294 Ga. App. 595 (2008) o “[e]vidence of insurance coverage is so prejudicial by nature that it should not be admitted unless it is clearly relevant and, as with any generally prejudicial evidence, in determining its admissibility, the trial court should not admit it unless its relevance outweighs its prejudice. o Ga. Code Ann., §24-4-411

Answer 44

* The concept of probative value allows the trial judge to consider at least three elements in evaluating the “probative value” of an item of evidence or testimony. * First, a judge may consider the facial vagueness or uncertainty of the proposed testimony. When the weakness of testimony is evidence on its face, a judge certainly should be permitted to consider that weakness in deciding whether to exclude even relevant evidence. * Remember the lower standard applied to what is and what is not “relevant.” * Second, a judge may consider the number of intermediate propositions between the item of evidence and the ultimate consequential fact that the item is offered to prove. The larger the number of intermediate inferences the jury must draw, the greater the probability that the jury will commit some inferential error. This element comes into play when the evidence is circumstantial. * Evidence under the law may be either direct or circumstantial or both. Evidence may also be used to prove a fact by inference. This is referred to as circumstantial evidence. Circumstantial evidence is the proof of facts or circumstances, by direct evidence, from which you may infer other related or connected facts that are reasonable and justified in the light of your experience. To warrant a conviction on circumstantial evidence the proven facts should not only be consistent with the hypothesis of guilt, it [sic] shall exclude every other reasonable hypothesis as to the guilt of the accused. * Third, the strength of the inference from the evidence to the consequential fact that it is offered to prove. The remoteness in time lowers the probative value of the evidence. Remoteness in place can have the same effect. Whenever the item of evidence is removed in space or time from the events alleged in the pleadings, the removal creates the possibility of intervening events which reduce the probative value of the evidence. * No matter how slight an item of evidence’s probative value is, all evidence that throws light on a material issue in the case should be admitted unless its potential for prejudice outweighs its possible probative value.

Answer 45

o Materiality (now referred to as “of consequence”) o To be admissible evidence must relate to questions being tried by the jury. If evidence is offered to prove a fact not in issue, the evidence is properly said to be immaterial. o Questions of relevancy of evidence, which includes the issue of materiality, are for the court, and in the absence of an abuse of judicial discretion, the trial court’s decision will not be overturned.

Answer 46

 Collateral Costs and Risks Flowing From the Admission of Evidence  In reaching a decision as to whether to exclude evidence on grounds of unfair prejudice, consideration should be given to the probable effectiveness or lack of effectiveness of a limiting instruction.  Evidence can be admitted for one specific purpose but inadmissible for others. Prejudice from spillover evidence is when a jury considers the evidence for all purposes. Limiting instructions may not entirely prevent a jury from considering evidence for a limited purpose. Limiting instructions are given for the purpose of reducing the possibility of misuse or misapplication of an item of evidence or testimony.  The Court may also consider whether or not there are other means of proofing a matter in dispute and whether the manner of offering an item of evidence itself might create unfair prejudice.  The trial court has discretion to exclude relevant and material evidence upon a determination that its probative value is substantially outweighed by the risk that its admission will create a substantial danger of undue prejudice or of misleading the jury.

Answer 47

• “[d]iscretion” has been defined to be ‘an impartial discretion, guided controlled in its exercise by fixed legal principles; a legal discretion to be exercised in conformity with the spirit of the law, and in a manner to subserve and not to defeat the ends of substantial justice. • American Southern Ins. Group, Inc. v. Goldstein, 291 Ga. App. 1 (2008) o “[Q]uestions of relevance are within the domain of the trial court, and absent a manifest abuse of discretion, a court’s refusal to admit evidence on grounds of lack of relevance will not be disturbed on appeal.”

Answer 48

o A judicial abuse of discretion requires that the reasons or rulings of a trial judge be clearly untenable, unfairly depriving a litigant of a substantial right and a just result. o An “abuse of discretion” is defined as the definite and firm conviction that the trial court committed a clear error of judgment. o The ultimate tests as to whether or not a trial court has mistakenly exercised its discretion is not whether another judge or a court on appeal might reasonable reach a different result, but whether the action of the trial court was reasonable and based upon substantial and legally sufficient evidence before it.

Answer 49

i. What is evidence for legal purposes? ii. When is evidence unnecessary? iii. How and by whom can evidence be presented?

Answer 50

• Every Person is competent to be a witness unless these rules provide otherwise. But in a civil case, state law governs the witness’s competency regarding a claim or defense for which state law supplies the rule of decision.

Answer 51

Except as otherwise provided in this chapter, every person is competent to be a witness.

Answer 52

• A witness may testify to a matter only if evidence is introduced sufficient to support a finding that the witness has personal knowledge of the matter. Evidence to prove personal knowledge may consist of the witness’s own testimony. This rule does not apply to a witness’s expert testimony under Rule 702. o FRE 702 a. (Testimony of expert witnesses)

Answer 53

• Before testifying, a witness must give an oath or affirmation to testify truthfully. It must be in a form designed to impress that duty on the witness’s conscience.

Answer 54

• Determining factor in deciding competency of child to testify is not age, but child's ability to understand nature of oath.

Answer 55

Ga. Code Ann., § 24-14-1 • Generally evidence is evaluated in three ways by the trial court. This evaluation of the evidence by the trial court can be said to pertain to the amount of “weight” which must be given before a determination is made that the burden of proof required has been satisfied. Ga. Code Ann., § 24-14-2 • What amount of evidence will change the onus or burden of proof shall be a question to be decided in each case by the sound discretion of the court. Ga. Code Ann., § 24-14-3 • Moral and reasonable certainty is all that can be expected in legal investigation. Except as provided in Code Section 51-1-29.5 or Code Section 51-12-5.1, in all civil proceedings, a preponderance of evidence shall be considered sufficient to produce mental conviction. In criminal proceedings, a greater strength of mental conviction shall be held necessary to justify a verdict of guilty.

Answer 56

• In an action involving a health care liability claim arising out of the provision of emergency medical care in a hospital emergency department or obstetrical unit or in a surgical suite immediately following the evaluation or treatment of a patient in a hospital emergency department, no physician or health care provider shall be held liable unless it is proven by clear and convincing evidence that the physician or health care provider's actions showed gross negligence.

Answer 57

• In determining where the preponderance of evidence lies, the jury may consider all the facts and circumstances of the case, the witnesses' manner of testifying, their intelligence, their means and opportunity for knowing the facts to which they testified, the nature of the facts to which they testified, the probability or improbability of their testimony, their interest or want of interest, and their personal credibility so far as the same may legitimately appear from the trial. The jury may also consider the number of the witnesses, though the preponderance is not necessarily with the greater number. • Jury Instructions concerning preponderance of the evidence o “I charge you that by preponderance of evidence is meant that superior weight of evidence upon the issues involved, which, while not enough to wholly free the mind of reasonable doubt is yet sufficient to incline a reasonable impartial mind to one side of the issue rather than to the other.”

Answer 58

• Proof by “preponderance of the evidence” means that jury must believe that the facts asserted are more probably true than false, whereas to be “clear and convincing,” evidence must establish that the truth of the facts asserted is highly probable and “beyond a reasonable doubt” means that the facts asserted are almost certainly true.

Answer 59

• Fraud is never presumed. o One reason for imposing higher clear and convincing evidence standard in a claim based on deceit is that defendany is with branded something akin to guilt.

Answer 60

* Beyond a Reasonable Doubt * Whether dependent upon direct or circumstantial evidence, the true question in criminal cases is not whether it is possible that the conclusion at which the evidence points may be false, but whether there is sufficient evidence to satisfy the mind and conscience beyond a reasonable doubt.

Answer 61

Proof beyond a reasonable doubt is proof that leaves you firmly convinced of the defendant's guilt. There are very few things in this world that we know with absolute certainty, and in criminal cases the law does not require proof that overcomes every possible doubt. If, based on your consideration of the evidence, you are firmly convinced that the defendant is guilty of the crime charged, you must find him guilty. If on the other hand, you think there is a real possibility that he is not guilty, you must give him the benefit of the doubt and find him not guilty."

Answer 62

• “[t]he Due Process Clause protects the accused against conviction except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime with which he is charged.”

Answer 63

• Circumstantial Evidence o To warrant a conviction on circumstantial evidence, the proved facts shall not only be consistent with the hypothesis of guilt, but shall exclude every other reasonable hypothesis save that of the guilt of the accused.

Answer 64

o The “de novo” standard of appellate review is the strictest standard of review (i.e., the one affording the least amount of discretion). The term de novo literally means “anew” or “afresh” and thus connotes “an independent determination of a controversy that accords no deference to any prior resolution of the same controversy.” Under the de novo standard of appellate review it is often said that “the court is charged to affirm only if it agrees with the decision under review - that is, if it finds that the decision is a correct one.”

Answer 65

o The clearly erroneous standard of appellate court review plainly does not entitle a reviewing court to reverse the findings of the trier of fact simply because it is convinced that it would have decided the case differently. The reviewing court oversteps the bounds of its duty . . . if it undertakes to duplicate the role of the lower court. . . . Where there are two permissible views of the evidence, the factfinder's choice between them cannot be clearly erroneous.

Answer 66

o The “substantial evidence” standard of review is something less than the weight or preponderance of the evidence and “more than a scintilla” that would “create a suspicion of the existence of the fact to be established.” “It means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion,” or “enough to justify, if the trial were to a jury, a refusal to direct a verdict when the conclusion sought to be drawn from it is one of fact for the jury.

Answer 67

o The appellate applies the “abuse of discretion” standard of review for a ruling that admits or excludes evidence. An abuse of discretion can occur where the district court applies the wrong law, follows the wrong procedure, bases its decision on clearly erroneous facts, or commits a clear error in judgment.

Answer 68

• The appellate court’s review of a trial court’s evidentiary rulings uses the “abuse of discretion” standard of review and the trial court’s admission or denial of the admission of evidence will be reversed “only if the resulting error affected the defendant's substantial rights.” The trial court's discretion concerning relevancy determinations is wide. Although Federal Rule of Evidence 403 allows for the exclusion of otherwise relevant evidence “if its probative value is substantially outweighed by the danger of unfair prejudice,” the appellate court precedents recognize that Rule 403 is an “extraordinary remedy” that should be “invoked sparingly” with “the balance ... struck in favor of admissibility.” As a result, we review issues under Rule 403 by viewing “the evidence in a light most favorable to its admission, maximizing its probative value and minimizing its undue prejudicial impact.”

Answer 69

* Importantly, when a trial court exercises its discretion in assessing attorney fees and costs of litigation under OCGA § 9-15-14, it is “incumbent upon the court to specify the conduct upon which the award is made.” Indeed, a judgment devoid of such findings “must be vacated and the case must be remanded for reconsideration.” Additionally, an order awarding attorney fees under this statute must “specifically state whether the award is made under OCGA § 9-15-14 (a) or (b).” * Here, although the trial court awarded attorney fees under OCGA § 9-15-14, its mere five-line ruling near the end of the judgment and decree failed to make express findings of fact or conclusions of law as to the basis for such award under that statute. Moreover, the court’s ruling fails to specify whether the attorney fees and expenses are awarded to Otis under OCGA § 9-15-14 (a) or (b).

Answer 70

• Federal Rules of Evidence Rule 102  These rules shall be construed so as to administer every proceeding fairly, eliminate unjustifiable expense and delay, and promote the development of evidence law, to the end of ascertaining the truth and securing a just determination. • Ga. Code Ann., § 24-1-1  The principal issue in the Old Chief case was the scope of a trial judge's discretion under Rule 403, which authorizes exclusion of relevant evidence when its “probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence. Old Chief relied on that part of FRE 403 concerning “the danger of unfair prejudice.”  The term “unfair prejudice,” as to a criminal defendant, speaks to the capacity of some concededly relevant evidence to lure the factfinder into declaring guilt on a ground different from proof specific to the offense charged  The overriding policy of excluding such evidence, despite its admitted probative value, is the practical experience that its disallowance tends to prevent confusion of issues, unfair surprise and undue prejudice • Reasonable Alternatives and Abuse of Discretion  Grounds for Exclusion of Relevant and Material Evidence Pursuant to Old Chief v. United States, 519 U.S. 172 (1997) a. Unfair Prejudice b. Excessive emotionalism c. Jury Unable to limit the use of the evidence d. Undue Weight e. Confusion of the issues f. Misleading the jury g. Waste of Time or Undue Delay h. Needless presentation of Cumulative Evidence i. Discretionary Authority of the trial judge`

Answer 71

* Any evidence is relevant that logically tends to prove or to disprove a material fact that is at issue in a case. * Every act or circumstance serving to elucidate or to throw light upon a material issue or issues in a case is relevant. * Every item of evidence that is relevant is not always going to be material.

Answer 72

• Defense counsel offered to stipulate to the prior conviction pursuant to [Old Chief]. The court ruled that the defendant’s prior conviction was not an element of the pending DUI charge; rather, the prior incident-as distinguished from the prior conviction-was used to show bent of mind. The fact that the defendant had committed a prior similar transaction is not a “legal status” analogous to “convicted felon” status.

Answer 73

o In a civil case, unless a federal statute or these rules provide otherwise, the party against whom a presumption is directed has the burden of producing evidence to rebut the presumption. But this rule does not shift the burden of persuasion, which remains on the party who had it originally.

Answer 74

o In a civil case, state law governs the effect of a presumption regarding a claim or defense for which state law supplies the rule of decision.

Answer 75

o Presumptions are either of law or of fact. Presumptions of law are conclusions and inferences which the law draws from given facts. Presumptions of fact shall be exclusively questions for the jury, to be decided by the ordinary test of human experience.

Answer 76

o Certain presumptions of law, such as the presumption of innocence, in some cases the presumption of guilt, the presumption of continuance of life for seven years, the presumption of a mental state once proved to exist, and all similar presumptions, may be rebutted by proof.

Answer 77

o If a party has evidence in such party's power and within such party's reach by which he or she may repel a claim or charge against him or her but omits to produce it or if such party has more certain and satisfactory evidence in his or her power but relies on that which is of a weaker and inferior nature, a presumption arises that the charge or claim against such party is well founded; but this presumption may be rebutted.

Answer 78

o In the ordinary course of business, when good faith requires an answer, it is the duty of the party receiving a letter from another to answer within a reasonable time. Otherwise, the party shall be presumed to admit the propriety of the acts mentioned in the letter of the party's correspondent and to adopt them.

Answer 79

o In any proceeding to establish a right, title, or interest in or to real property that is a part of a railroad right of way, including a right of ingress or egress, where such proceeding is based upon occupancy of the railroad right of way by a person or entity other than the railroad corporation or railroad company, there shall be a presumption that any such occupancy of the railroad right of way is with the permission of the railroad corporation or railroad company. Such presumption may be rebutted.

Answer 80

b) In any dispute concerning payment by means of a check, a duplicate of the check produced in accordance with Code Section 24-10-1003, together with the original bank statement that reflects payment of the check by the bank on which it was drawn or a duplicate thereof produced in the same manner, shall create a presumption that the check has been paid.

Answer 81

o Evidence of the subsequent measures is not admissible to prove negligence, culpable conduct, a defect in a product, a defect in a product's design, or a need for a warning or instruction. o Subsequent remedial (repairs, etc) are admissible to prove ownership, control, or feasibility of precautionary measures, if controverted, or impeachment.

Answer 82

* The Plaintiff offered evidence that the defendant corporation had added rubber guards to the edge of doors and installed warning signs to support his allegations negligence. The Georgia Court held that “evidence of subsequent remedial measures is inadmissible in negligence actions. * The policy reason for this rule is that allowing the use of subsequent remedial evidence to prove negligence is to encourage safety through remedial actions

Answer 83

* Evidence of the furnishing or offering or promising to furnish, or accepting or offering or promising to accept, a valuable consideration in compromising or attempting to compromise a claim which was disputed as to either validity or amount; and, is not admissible to prove liability for or invalidity of the claim. * Evidence of conduct or statements made in compromise negotiations, except when offered in a criminal case and the negotiations related to a claim by a public office or agency in the exercise of regulatory, investigative, or enforcement authority are not admissible to prove liability for or invalidity of the claim. * Evidence offers to compromise is not inadmissible if it is offered other purposes proving a witness's bias or prejudice

Answer 84

• Evidence of “admissions or propositions made with a view to a compromise are not proper evidence.”

Answer 85

• An admission made in an offer to settle will be admissible in evidence while one made in an offer to compromise will not be admissible

Answer 86

* Evidence of furnishing, promising to pay, or offering to pay medical, hospital, or similar expenses resulting from an injury is not admissible to prove liability for the injury. * [G]enerally, evidence of payment of medical, hospital, or similar expenses of an injured party by the opposing party, is not admissible, the reason often given being that such payment or offer is usually made from humane impulses and not from an admission of liability, and that to hold otherwise would tend to discourage assistance to the injured person.”

Answer 87

* a) Prohibited Uses. In a civil or criminal case, evidence of the following is not admissible against the defendant who made the plea or participated in the plea discussions: * (1) a guilty plea that was later withdrawn; * (2) a nolo contendere plea; * (3) a statement made during a proceeding on either of those pleas under Federal Rule of Criminal Procedure 11 or a comparable state procedure; or * (4) a statement made during plea discussions with an attorney for the prosecuting authority if the discussions did not result in a guilty plea or they resulted in a later-withdrawn guilty plea. * Exceptions. The court may admit a statement described in Rule 410(a)(3) or (4): * (1) in any proceeding in which another statement made during the same plea or plea discussions has been introduced, if in fairness the statements ought to be considered together; or * (2) in a criminal proceeding for perjury or false statement, if the defendant made the statement under oath, on the record, and with counsel present

Answer 88

* Evidence that a person was or was not insured against liability is not admissible to prove whether the person acted negligently or otherwise wrongfully. But the court may admit this evidence for another purpose, such as proving a witness’s bias or prejudice or proving agency, ownership, or control. * Liability insurance is insurance that provides protection against claims resulting from injuries and damage to people and/or property. Liability insurance policies cover both legal costs and any legal payouts for which the insured would be responsible if found legally liable.

Answer 89

* Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity therewith. * Evidence of other crimes, etc, is admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.

Answer 90

* Evidence of a person’s character or trait of character shall not be admissible for the purpose of providing action in conformity therewith on a particular occasion, except for: * Subject to the limitations imposed by Code Section 24-4-412, evidence of a pertinent trait of character of the alleged victim of the crime offered by an accused or by the prosecution to rebut the same; or evidence of a character trait of peacefulness of the alleged victim offered by the prosecution in a homicide case to rebut evidence that the alleged victim was the first aggressor

Answer 91

• Evidence of drug use is inadmissible when it is intended only to impugn a victim’s character and has no relevance to any disputed issues in the case

Answer 92

• As a general rule, a victim's character is not relevant or admissible in the murder trial. There is an exception when the defendant claims justification and offers evidence that the deceased was the first aggressor. In Georgia, this exception permits the defendant to present evidence of both the deceased's general reputation for violence and specific acts of violence against third persons. In response, the state may present evidence of the peaceable character of the deceased

Answer 93

• Murder victim’s prior cocaine convictions were irrelevant in self-defense case.

Answer 94

• In all proceedings in which evidence of character or a trait of character of a person is admissible, proof shall be made by testimony as to reputation or by testimony in the form of an opinion. . . • On cross-examination, inquiry shall be allowable into relevant specific instances of conduct. • In Georgia, Before Evidence of Similar Transactions in Criminal Cases is Admissible A Hearing Is Required o Georgia Uniform Rules of the Superior Court 31.3 o Williams v. State, 261 Ga. 640 (1991) - Any evidence of independent offenses or acts may be admitted into evidence, a hearing must be held. . . [t]he state must make three affirmative showings as to each independent offense or act it seeks to introduce. 1. The first of these affirmative showings is that the state seeks to introduce evidence of the independent offense or act, not to raise an improper inference as to the accused's character, but for some appropriate purpose which has been deemed to be an exception to the general rule of inadmissibility. 2. That there is sufficient evidence to establish that the accused committed the independent offense or act. 3. That there is a sufficient connection or similarity between the independent offense or act and the crime charged so that proof of the former tends to prove the latter.

Answer 95

• In child sexual abuse cases, a certified copy of a prior conviction for a sex crime against a child may, with no other evidence, sufficiently prove that the prior crime is similar to the current crim. [A] certified copy of the defendant's redacted indictment and guilty plea, which contained a factual description of the prior offense, were adequate for proving the required similarity.

Answer 96

• Civil Proceedings o Evidence of Other Happenings, etc. Is Admissible 1. To show that the situation as of the time of the accidence or occurrence was dangerous. 2. To prove that the defendant knew or should have known of the danger. 3. Rebut a claim of impossibility.

Answer 97

• The rule of the use of similar accidents to show dangerous condition and notice requires that the evidence show that the watering fountain was in the same condition at the time such other accidents occurred as at the time the accident involved in this case.

Answer 98

• To support award of punitive damages in premises liability case, there must be clear and convincing evidence that defendant showed such willful misconduct, wantonness, or that entire want of care which would raise statutory presumption of conscious indifference to consequences.

Answer 99

* The issue in this case was the offer of evidence to show an absence of prior or similar occurrences. * The Plaintiff filed a pre-trial motion seeking an order of the court denying Pak-Mor from introducing evidence of the “absence of accidents.” * Pak-Mor argued that such evidence was relevant to show that the design was not defective, that the product was not unreasonably dangerous, and that it had no notice of any defect or danger. * The trial court has discretion under Rule 403 to admit evidence of safety-history concerning both the existence and the nonexistence of prior accidents, provided that the proponent establishes the necessary predicate for the evidence.”

Answer 100

* The Massachusetts Rule * That evidence of the sale price of other real property is admissible upon the issue of the value of other real property where the conditions with respect to the other land and the sale thereof are similar to those involved in the case at bar... Size, use, location and character of the land, time, mode and nature of the sale all have a bearing on the admissibility of such evidence. * The burden is on the proponent of the evidence to show the similarity of the sold property to the value of the property in question

Answer 101

• Evidence of the sale price of other real property is inadmissible as independent proof of the value of the land involved in the case at bar.

Answer 102

• Methods of proving character o When evidence of a person’s character or character trait is admissible, it may be proved by testimony about the person’s reputation or by testimony in the form of an opinion. On cross-examination of the character witness, the court may allow an inquiry into relevant specific instances of the person’s conduct. o When a person’s character or character trait is an essential element of a charge, claim, or defense, the character or trait may also be proved by relevant specific instances of the persons’ conduct.

Answer 103

• Habit; Routine Practice o Evidence of a person’s habit or an organization’s routine practice may be admitted to prove that on a particular occasion the person or organization acted in accordance with the habit or routine practice. The court may admit the evidence regardless of whether it is corroborated or whether there was an eyewitness. • Character o Character is a generalized description of one’s disposition, or of one’s disposition in respect to a general trait, such as honesty, temperance, or peacefulness. • Habit o Habit is the person’s regular practice of meeting a particular knid of situation with a specific type of conduct. o Such as the habit of going down a particular stairway two stairs at a time, or giving the hand-signal for left turn, or of alighting from railway cars while they are moving.

Answer 104

* Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity therewith. * Evidence of other crimes, etc., is admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.

Answer 105

• Evidence of a person’s character or a trait of character shall not be admissible for the purpose of proving action in conformity therewith on a particular occasion, except for: o Evidence of a pertinent trait of character offered by an accused or by the prosecution to rebut the same; of if evidence of a trait of character of the alleged victim of the crime is offered by an accused and admitted under paragraph (2) of this subsection, evidence of the same trait of character of the accused offered by the prosecution; o Evidence of the character of a witness, as provided in Code Sections 24-6-607, 24-6-608, and 24-6-609  These evidentiary code sections relate to evidence offered to attack the credibility of a witness. o Evidence of other crimes, wrongs, or acts shall not be admissible to prove the character of a person in order to show action in Conformity therewith. It may, however, be admissible for other purposes, including, but not limited to, proof of motive, opportunity, intent, preparation, plan, knowledge, identify, or absence of mistake or accident. The prosecution in a criminal proceeding shall provide reasonable notice to the defense in advance of trial, unless pretrial notice is excused by the court upon good cause shown, of the general nature of any such evidence it intends to introduce at trial. Notice shall not be required when the evidence of prior crimes, wrongs, or acts is offered to prove the circumstances immediately surrounding the charged crime, motive or prior difficulties between the accused and the alleged victim.

Answer 106

* Any evidence of independent offenses or acts may be admitted into evidence, a hearing must be held. . . [t]he state must make three affirmative showings as to each independent offense or act it seeks to introduce. * The first of these affirmative showings is that the state seeks to introduce evidence of the independent offense or act, not to raise an improper inference as to the accused's character, but for some appropriate purpose which has been deemed to be an exception to the general rule of inadmissibility. * Secondly, that there is sufficient evidence to establish that the accused committed the independent offense or act. * Thirdly, that there is a sufficient connection or similarity between the independent offense or act and the crime charged so that proof of the former tends to prove the latter.

Answer 107

• The following evidence is NOT admissible in a civil or criminal proceeding involving alleged sexual misconduct: o Evidence offered to prove that a victim engaged in other sexual behavior; or o Evidence offered to prove a victim’s sexual predisposition. o [However], the court may admit the following evidence [in a criminal case involving alleged sexual misconduct.]: o Evidence of specific instances of a victim’s sexual behavior, if offered to prove that someone other than the defendant was the source of semen, injury, or other physical evidence; o Evidence of specific instances of a victim’s sexual behavior with respect to the person accused of the sexual misconduct, if offered by the defendant to prove consent or if offered by the prosecution; and o Evidence whose exclusion would violate the defendant’s constitutional rights.

Answer 108

• In any prosecution for [involving the following offenses] o Rape; o Aggravated assault with the intent to rape; o Aggravated sodomy or sodomy; o Statutory rape; o Aggravated child molestation or child molestation; o Incest; o Sexual Battery; o Aggravated sexual battery o Evidence relating to the past sexual behavior of the complaining witness shall NOT be admissible, either as direct evidence or on cross-examination of the complaining witness or other witnesses, except as provided in this Code Section. For the purposes of this Code section, evidence of past sexual behavior includes, but is not limited to, o Evidence of the complaining witness’s marital history; o Mode of dress; o General reputation for promiscuity; o Nonchastity, or sexual mores contrary to the community standards. o In any prosecution for [the crimes set forth in paragraph (i) above [evidence relating to the past sexual behavior of the complaining witness may be introduce if the court, following [a hearing] finds that the past sexual behavior directly involved the participation of the accused and finds that the evidence expected to be introduced supports an inference that the accused could have reasonably believed that the complaining witness consented to the conduct complained of in the prosecution. • The procedure for introducing evidence as described [by §24-4-412] shall be as follows: o At the time the defense seeks to introduce evidence which would be covered by subsection (b) of this Code section, the defense shall notify the court of such intent, whereupon the court shall conduct an in camera hearing to examine the accused's offer of proof; o At the conclusion of the hearing, if the court finds that any of the evidence introduced at the hearing is admissible under subsection (b) of this Code section or is so highly material that it will substantially support a conclusion that the accused reasonably believed that the complaining witness consented to the conduct complained of and that justice mandates the admission of such evidence, the court shall by order state what evidence may be introduced by the defense at the trial of the case and in what manner the evidence may be introduced; and o The defense may then introduce evidence pursuant to the order of the court

Answer 109

• The Constitution guarantees a defendant the right to confront the victim, or accuser, at trial. Defendants have argued that rape shield laws abuse this right by hiding victims’ previous sexual behavior. However, courts throughout the United States and the federal and state levels have held that a defendant’s right to confrontation doesn’t include a right to present irrelevant evidence such as the victim’s reputation and sexual acts with other people. • There are three significant public policy reasons for rape shield statutes 1. Protection of the right of privacy of victims; 2. Prevention of embarrassment of victims; 3. Encouragement of victims to come forward • At common law, the past sexual behavior and reputation of the complainant in a rape case was generally admissible either as evidence that she was likely to consent to sex with the accused or to attack her credibility under oath. The common law generally did not protect the victims of crime from any inquiry into their character that was at all relevant to the issues on trial, regardless of the negative collateral effects it might cause. In the context of sexual offenses, these negative side effects were quite substantial. On the other hand, evidence of the complainant's past sexual behavior is sometimes relevant for a specific, highly relevant point at trial and excluding it would seriously diminish the accused's constitutional right to confront the witnesses against him and present his case at trial. Rape victim shield statutes are an attempt to resolve the tension between the defendant's constitutional rights and the need to afford some level of protection for victims of sex offenses. • Many reasons have been advanced for offering special protection for the victims of sex crimes. The old tactic of putting the victim's sexual history and attitudes on trial no doubt deterred many victims from making or following through with complaints of sexual assault, preferring to avoid public embarrassment and loss of privacy. Moreover, there is little legitimate probative value in, and thus little need for, such evidence when it is used only to suggest that because the complainant may have been sexually active, she is less likely to have been raped. Worse, by admitting the evidence expressly for this low probative value purpose, the law could not help but suggest, at least indirectly, that the more sexually active a woman is, the less deserving she is of the law's protection. • Rape victim shield laws are designed to exclude the “low probative value” variety of evidence of the complainant's sexual character and provide a controlled, deliberate procedure for the admission of such evidence when offered for a highly probative purpose.

Answer 110

• There are four different types or forms of rape shield laws. Federal Rule Pattern (7 jurisdictions) 1. This patter contains specific and “catch-all” exceptions ii. The Michigan Group Pattern (25 states) 1. Contains enumerated exceptions iii. The Texas Group Pattern (11 states) 1. Trial judge has almost unfettered discretion iv. The California Group Pattern (7 states) 1. Evidence is either categorized as substantive or credibility related evidence (impeachment, etc.) V. Case Analysis of the Application of Rape Shield Laws Protections a. Doe v. United States, 666 F. 2d 43 (1981) i. Legislative purpose of rape shield laws 1. Past sexual history of alleged victims is not relevant

Answer 111

Evidence that is constitutionally mandated; b. When the defendant claims that he is not the source of semen oaf injury; c. When the defendant claims the victim consented, he may testify about his prior relations with the victim.

Answer 112

o Use of evidence to exclude the defendant as a possible perpetrator of the crime. o Georgia’s Rape Shield Statute and the federal rape shield laws have excluded evidence such as: o The identity of the victim’s boyfriend with whom she was sexually active.

Answer 113

• Cox v. State, 241 Ga. App. 388 (1999) o Evidence of the victim’s last reported voluntary intercourse. • Johnson v. State, 245 Ga. App. 690 (2000) o Statement that the victim had previously had sex with her cousin. • Snow v. State, 228 Ga. App. 649 (1997) o A phone-sex tape made by the victim. • Sweeney v. State, 233 Ga. App. 862 (1998) o A victim’s prior false accusation of sexual misconduct against another person. • Eley v. State, 266 Ga. App. 45 (2004) o The use of contraceptives by victim held to be inadmissible since the use of contraceptives implies sexual activity • United States v. Galloway, 937 F. 2d 542 (1992) o The victim’s giving birth to an illegitimate child held to be inadmissible. • United States v. One Feather, 702 F. 2d 736 (1983) o Evidence from the deputy sheriff interviewing the victim in a sexual abuse case that she had told the deputy she thought the deputy was “cute” and that she asked the deputy if he “wanted to “crawl into bed” with her. • United States v. Papakee, 573 F.3rd 569 (8th Cir. 2009) o Evidence that the victim suffered from a venereal disease was held to be inadmissible. • State v. Carmichael, 727 P. 2d 918 (1986) • Murrell v. Ricks, 280 Ga. 427 (2006) o Evidence of an alleged rape victim’s sexually transmitted disease was inadmissible under the rape shield statute. Even when it ca not be determined when the victim contracted the sexually transmitted disease, the law makes no distinction between the victim’s behavior before or after the crime. • However, see, Reece v. State, 192 Ga. App. 14 (1989) o The Court of Appeals reversed a conviction for rape and held that rape shield law did not prevent defendant from showing that his wife did not have venereal disease, and that by logical extension, defendant did not have such disease, after State elicited and introduced evidence that child victim developed vaginal infection after “forcible entry” by defendant, thus implying that defendant gave her the disease.

Answer 114

• Atkins v. State, 2017 WL 3038360 (June 30, 2017) o Defendant was prohibited by the Rape Shield Statute from inquiring about the paternity of victim's baby at trial in statutory rape prosecution, where defendant sought to ask the victim about paternity even though evidence had been introduced that victim was pregnant, that the pregnancy was aborted, and that defendant was excluded as the father; defendant's requested line of inquiry concerned the identity of the father, which was precisely the information as to her “past sexual behavior” that the statute was designed to bar. • Bill v. State, 341 Ga. App. 340 (2017) o Trial court properly excluded evidence of victim's history of prostitution, which defendant claimed was relevant to show that someone else could have been angry and caused victim's injuries, in trial for kidnapping, aggravated assault, aggravated sodomy, aggravated sexual battery, rape, and false imprisonment, where defendant provided nothing other than speculation linking victim's sexual assault with her prior prostitution with other men. • Morgan v. State, 337 Ga. App. 29 (2016) o Trial court must make threshold determination outside presence of jury that a reasonable probability of falsity exists before admitting evidence under Rape Shield Statute that victim made prior false allegations of child molestation.

Answer 115

Federal Rule of Evidence 413-Similar Crimes in Sexual-Assault Cases • In a criminal case in which the defendant is accused of an offense of sexual assault, evidence of the defendant’s commission of another offense or offenses of sexual assault is admissible, and my be considered for its bearing on any matter to which it is relevant. • Sexual-Assault is defined by the rules as: o Any conduct prohibited by [federal law setting forth the definitions of “sex acts.”] o Contact, without consent, between any part of the defendant’s body-or an object-and another person’s genitals or anus; o Contact, without consent, between the defendant’s genitals or anus and part of another person’s body; o Deriving sexual pleasure or gratification from inflicting death, bodily injury, or physical pain on another person; or o An attempt or conspiracy to engage in conduct described in a-d. • United States v. LeMay, 260 F.3d 1018 (2001) o The court must evaluate several factors in determining whether to admit evidence of a defendant’s prior acts of sexual misconduct.  The similarity of the prior acts to the acts charged;  The closeness in time of the prior acts to the acts charged;  The frequency of the prior acts;  The presence or lack of intervening circumstances;  The necessity of the evidence beyond the testimonies already offered at trial. • Cannon v. State, 296 Ga. App. 687 (2009) o The sexual molestation of young children, regardless of sex or type of act, is of sufficient similarity to make the evidence admissible. The exception to the general rule that evidence of independent crimes is inadmissible has been most liberally extended in the area of sexual offenses. It is not necessary to introduce a conviction of the other crimes in order to adduce testimony that they occurred. • Parker v. State, 283 Ga. App. 714 (2007) o In child sexual abuse cases, a certified copy of a prior conviction for a sex crime against a child may, with no other evidence, sufficiently prove that the prior crime is similar to the current crim. [A] certified copy of the defendant's redacted indictment and guilty plea, which contained a factual description of the prior offense, were adequate for proving the required similarity. • Morgan v. State, 337 Ga. App. 29 (2016) o The Rape Shield Statute, codified at OCGA § 24–4–412, provides that in prosecutions for child molestation “evidence relating to the past sexual behavior of the complaining witness shall not be admissible, either as direct evidence or on cross-examination of the complaining witness[.]”But such evidence may be admissible to show “the victim's lack of credibility where the victim has made prior false allegations of child molestation.” o The reason for this exception to the Rape Shield Statute is that the “evidence does not involve the victim's past sexual conduct but rather the victim's propensity to make false statements regarding sexual misconduct.” However, “before such evidence can be admitted, the trial court must make a threshold determination outside the presence of the jury that a reasonable probability of falsity exists.”

Answer 116

• Every person is competent to be a witness unless these rules provide otherwise. But in a civil case, state law governs the witness’s competency regarding a claim or defense for which state law supplies the rule of decision.

Answer 117

• Except as otherwise provided in this chapter, every person is competent to be a witness.

Answer 118

• A witness may not testify to a matter unless evidence is introduced sufficient to support a finding that the witness has personal knowledge of the matter. Evidence to prove personal knowledge may, but need not, consist of the witness’ own testimony. This rule is subject to the provisions of rule 703, relating to opinion testimony by expert witnesses.

Answer 119

* The parties may agree to stipulate to facts in criminal and civil cases. Stipulations should be in writing or made on the record. * A party may stipulate to the truth of certain evidence or merely to its admissibility. When a party stipulates only to admissibility, the party can still challenge the reliability or truthfulness of the evidence. * Many exhibits are admitted by stipulation of the parties without the need for a testimonial foundation. * There are times when a stipulation can help to avoid unfair prejudice. An example would be the attempt to admit very gory photographs to prove that an accident took place because of excessive speed. An offer to stipulate to evidence that a car was speeding might help to avoid the introduction of the unfairly prejudicial photographs of injured people at the scene of an accident.

Answer 120

Parties may agree to stipulate to facts in criminal and civil cases. Stipulations should be in writing or made on the record.” In criminal cases, the court should not accept a stipulation as to a material fact without a showing that it was authorized by the accused himself. The contention that a defendant cannot be convicted on a stipulation of facts agreed to and executed by him is not well taken. Under [OCGA § 24-4-24], a solemn admission in judicio is, at least until withdrawn after notice, conclusively binding upon the parties thereto.”

Answer 121

Real evidence is evidence that the court or jury perceives directly through its senses and that “ ‘speaks to them without the intervention of the testimony of witnesses.’ ” Its relevance “lies in its direct relationship to the facts or events in question at trial”—e.g., a package of cocaine that was allegedly seized from the accused, or fingerprints or blood samples allegedly taken from a crime scene. • Testimonial evidence, in this taxonomy, refers to “all testimony at trial and all hearsay statements admitted pursuant to an exception”; relevance depends on its logical relationship to the facts in issue at trial, and its probative force is highly dependent on the credibility of its source. • Demonstrative evidence is a combination of real and testimonial evidence. It is real evidence in that it “is adduced directly to the senses of the court or jury” but it is irrelevant and inadmissible unless accompanied by witness testimony that shows that the demonstrative evidence is substantially similar to the actual conditions or events at issue.

Answer 122

* The defendant objected to the medical examiner’s use of a baby doll to demonstrate how some of the victim's injuries appeared to have been inflicted and the amount of force that would have been required to cause the head and neck injuries that he observed when he performed the victim's autopsy. The defendant argued that it was an abuse of discretion to allow the use of the baby doll and demonstrative evidence. * Before the medical examiner testified, the prosecutor advised the trial court that it planned to have him use a baby doll as a demonstrative aid. Defense counsel objected on the grounds that shaking the doll as a demonstration was not supported by the evidence as defendant never said that he shook the victim, and that the probative value of the demonstration would be substantially outweighed by the risk of unfair prejudice. In addition, defense counsel requested a preview of the demonstration and a ruling on its admissibility before the medical examiner conducted the demonstration for the jury. * The trial court agreed to that procedure. With the jury excused, the State showed the medical examiner the baby doll to be used in the demonstration, which he confirmed was approximately the same size as the victim, within six inches in length and six pounds in weight. The medical examiner then explained that it would help the jurors understand his expert testimony if they could see him demonstrate how the baby's injuries were caused—the squeezing of her chest causing the rib fractures, the “slamming of the head [indicating what he meant] several times to cause injury,” and the gripping of her leg and arm resulting in the injuries there. After cross- and redirect examination, defense counsel renewed his objection, arguing that the demonstration was speculative and highly prejudicial given “the unknowing or unknowable number of times that it's alleged that this child was hit.” The trial court ruled “that the doll can be used as a demonstrative tool in [the medical examiner’s]testimony” because it would be helpful as “a[n] aid” to the jury in understanding that testimony. * Demonstrative evidence is a combination of real and testimonial evidence. It is real evidence in that it “is adduced directly to the senses of the court or jury” but it is irrelevant and inadmissible unless accompanied by witness testimony that shows that the demonstrative evidence is substantially similar to the actual conditions or events at issue. * Demonstrative evidence includes “charts, models, diagrams, replicas, re-enactments, pictures, or any other device used to aid the trier of fact in understanding the issues and facts at trial.” Demonstrative evidence implicates several provisions of the new Evidence Code. It must be relevant, see OCGA § 24–4–401, and it may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence, see OCGA § 24–4–403. Demonstrations are also subject to the reasonable control of the trial court. See OCGA § 24–6–611. (“Demonstrations ... are permissible for explanatory purposes but not for dramatic effect or emotional appeal.”). * As a general rule, the court has wide discretion to admit evidence of experiments conducted under substantially similar conditions.” The burden is on the party offering a courtroom demonstration or experiment to lay a proper foundation establishing a similarity of circumstances and conditions. Although the conditions of the demonstration need not be identical to the event at issue, “they must be so nearly the same in substantial particulars as to afford a fair comparison in respect to the particular issue to which the test is directed.” Further, experimental or demonstrative evidence, like any evidence offered at trial, should be excluded “if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury.”

Answer 123

• Real or Demonstrative Evidence is required to be authenticated or identified. 1. Testimony of a witness who has personal knowledge of the evidence. 2. Testimony of an expert who has made comparisons of the evidence. 3. Identifying characteristics 4. Public Records 5. Ancient Documents a. In Georgia in order to be admissible, the document must be 20 years old and otherwise authenticated as an ancient document. i. Statements in ancient documents. Statements in a document in existence 20 years or more the authenticity of which is established. b. A witness may authenticate the document from personal knowledge if he prepared or signed the document or saw who prepared or signed it. i. OCGA §24-9-901(b)(1

Answer 124

• Upon the trial of any civil proceeding involving injury or disease, the patient or the member of his or her family or other person responsible for the care of the patient shall be a competent witness to identify bills for expenses incurred in the treatment of the patient upon a showing by such a witness that the expenses were incurred in connection with the treatment of the injury, disease, or disability involved in the subject of the litigation at trial and that the bills were received from: i. A hospital; ii. An ambulance service; iii. A pharmacy, drugstore, or supplier of therapeutic or orthopedic devices; or iv. A licensed practicing physician, dentist, orthodontist, podiatrist, physical or occupational therapist, doctor of chiropractic, psychologist, advanced practice registered nurse, social worker, professional counselor, or marriage and family therapist.

Answer 125

• The continuing witness objection is “based on the notion that written testimony is heard by the jury when read from the witness stand just as oral testimony is heard when given from the witness stand. But, it is unfair and places undue emphasis on written testimony for the writing to go out with the jury to be read again during deliberations, while oral testimony is received but once. o Demonstrative evidence serves only to illustrate testimony given by the witness. o Most commonly, the types of documents that have been held subject to the continuing-witness rule include affidavits, depositions, written confessions, statements, and dying declarations. o Certain materials may be used as tools to illustrate testimony without being admitted as demonstrative evidence, but not where the illustrative material contains erroneous or prejudicial matter unauthenticated by the testimony which it purports to illustrate. When the materials are not introduced into evidence but are used solely to illustrate the testimony of a witness, minimal authentication is generally required o Travis v. State, 314 Ga. App. 280 (2012)

Answer 126

o The requirement of authentication or identification as a condition precedent to admissibility shall be satisfied by evidence sufficient to support a finding that the matter in question is what its proponent claims. o By way of illustration only, and not by way of limitation the following examples of authentication or identification conforming with the requirements of this Code Section: o Testimony of a witness with kn0wledge that a matter is what it is claimed to be; o Appearance contents, substance, internal patterns, or other distinctive characteristics, taken in conjunction with circumstances; o Evidence describing a process or system used to produce a result and showing that the process or system produces an accurate result; or o Any method of authentication or identification provided by law

Answer 127

 At trial, Harris made a chain of custody objection regarding the articles of his clothing upon which was found Spead's DNA, noting in particular that a photograph of Harris at the time of his booking into jail shows him wearing a white T-shirt, but that the evidence bags containing his clothing did not include such a shirt, but included a tank-top shirt. During trial, the State presented testimony that explained the discrepancy between the photograph and the items in the evidence bag, to wit: when Harris was arrested, he arrived wearing a white T-shirt over a tank-top shirt, as well as dark shorts; at the time, the jail's booking practice permitted a prisoner who arrived with a white T-shirt to retain the shirt to wear under his jail-issued jumpsuit; when Harris changed his clothing, he put the white T-shirt back on and then put his jumpsuit over it; and Harris's other clothing was collected as part of the standard procedure, and later turned over to a detective.  When the State seeks to introduce into evidence an item that is subject to the chain of custody rule, it must establish with reasonable assurance that the item seized is the same as the item being offered into evidence. And, the State must show with reasonable certainty that there has been no tampering or substitution of the evidence.

Answer 128

 An object which is to be introduced as real evidence must be identified and this should be done before it is offered. The trial judge’s function is to determine whether there is sufficient evidence of this connection for the object to go to the jury.  The rules of authentication require the proponent of a particular item of evidence to establish a prima facie case that the item is what the proponent claims it is, and “[o]nce that prima facie case is established, the evidence is admitted and the ultimate question of authenticity is decided by the jury.”  Of course, this rule is subject to the many other rules excluding certain evidence, such as the rules generally precluding admission of hearsay, unduly prejudicial evidence, character evidence, and evidence that is irrelevant. But authentication is always a prerequisite to admission of evidence.  The trial judge must make the determination whether there is sufficient evidence to support this finding. For example, when a thing is to be offered in evidence as having been made or used by a specific person, the thing cannot be introduced until evidence of its connection with such person has been produced. In the context of documentary evidence, evidence of authentication is not intended or required to establish validity of the document, but is rather a means of “identification, or showing that [the] writing” is what it purports to be. An object that is to be introduced as real evidence must be identified, and this should be done before it is offered, although it is not necessary that the authenticity of an object be proven with absolute certainty.  Circumstantial evidence may also satisfy the requirements of the authentication provisions. The Code provides that authentication may occur by proof of:  Appearance, contents, substance, internal patterns, or other distinctive characteristics, taken in conjunction with circumstances;

Answer 129

 letter purportedly sent by defendant to other inmate properly authenticated based on contents of letter, which included specific circumstances of crime and potential punishment.  Comparison by the trier of fact or by expert witnesses with specimens that have been authenticated. Such specimens shall be furnished to the opposite party no later than ten days prior to trial;

Answer 130

 Evidence describing a process or system used to produce a result and showing that the process or system produces an accurate result.

Answer 131

• Electronic communications are discoverable and electronic records have been held admissible in Georgia. Text-based electronic communications such as text messages, emails and tweets, are held to the same standards of authentication as other similar evidence. • Hammontree v. State, 283 Ga. App. 736, 642 S.E.2d 412 (2007). o Uniform Electronic Transactions Act, O.C.G.A. §§ 10-12-1 et seq., which treats authentication of electronic records the same as other documents o The Georgia Supreme Court has considered the requirements for authentication of documents printed out from an online social networking site. The Court held that documents printed out from electronic sources, such as a website like MySpace, are subject to the same rules of authentication as other more traditional documentary evidence and may be authenticated through circumstantial evidence.

Answer 132

o In Burgess, prior to the entry of the document into evidence at trial, several witnesses testified that appellant was known by the nickname “Oops” and that he was a member of the gang “Murk Mob.” A police officer testified that he confirmed appellant's nickname by speaking with appellant's sister during the investigation, that he used this information to access the publicly available MySpace profile page, that he printed the document from his computer while observing the MySpace profile page, and that the printout fairly and accurately depicted what he observed on his computer screen. The officer also stated that he compared known photographs of appellant with the images depicted in the printout and determined they were images of appellant. He was also able to confirm, through his contact with appellant's family during the investigation, that appellant was 19 years old at the time the document was printed and that appellant was originally from New York. The Court found there was sufficient circumstantial evidence to authenticate the printout from the MySpace profile page.

Answer 133

• Text messages similarly may be authenticated through circumstantial evidence. The Court of Appeals has held that, although there was evidence that a mobile phone was not registered to the defendant and was used by the owner at times, the messages sought to be admitted referred to the defendant by his first name and was found on his person, and therefore the prosecution had presented sufficient evidence to prove establish a prima facie case for authentication purposes. Glispie v. State, 335 Ga. App. 177 (2015). • It should be noted, however, that the United States Supreme Court has held that law enforcement must obtain a search warrant, or consent, to search a mobile phone.

Answer 134

Interception of Electronic Communications • Unlawful interception of electronic communication renders the evidence obtained inadmissible, except to prove violations of the statute. a. O.C.G.A. §§ 16-11-60 et seq.; O.C.G.A. § 16-11-67. See, also, • Ransom v. Ransom, 253 Ga. 656, 324 S.E.2d 437 (1985) o A tape recordings of the wife's telephone conversation made by the husband without the wife's knowledge or consent could be used at trial for impeachment purposes.

Answer 135

• Parties may agree to stipulate to facts in criminal and civil cases. Stipulations should be in writing or made on the record. • “[w]hen the facts controlling an issue are not in dispute, the resolution of that issue is purely a legal question for the court to decision.” Walker v. Gwinnett Hosp. System, 263 Ga. App. 554(2003) • “where the facts are undisputed, the question of whether the lawsuit was filed within the statute of limitations is a question of law for the court.”

Answer 136

• As a general rule, the district court has wide discretion to admit evidence of experiments conducted under substantially similar conditions.” The burden is on the party offering a courtroom demonstration or experiment to lay a proper foundation establishing a similarity of circumstances and conditions. Although the conditions of the demonstration need not be identical to the event at issue, “they must be so nearly the same in substantial particulars as to afford a fair comparison in respect to the particular issue to which the test is directed.” Further, experimental or demonstrative evidence, like any evidence offered at trial, should be excluded “if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury.”

Answer 137

o “[t]he trial court abused its discretion in admitting a demonstration in a shaken-baby murder trial, where the conditions of the demonstration were substantially dissimilar to the evidence of what happened to the victim, the doll the expert used was dissimilar to the victim in several important respects, and the expert's understanding of how the victim was shaken was based on unreliable information from a different shaken-baby case.” o It was not an abuse of discretion in the trial court's admission of the medical expert's demonstration using the baby doll. Dr. Clark testified during the proffer and before the jury that using the baby doll would be helpful in explaining his opinions to the jury and that the doll used was substantially similar to the victim with respect to the characteristics relevant to the points that his testimony covered. Dr. Clark noted that he had used dolls in similar cases because “the baby doll helps show what the mechanism is that resulted in these types of injuries ... [and] also will show what kind of force could be involved in these injuries.” He then based the demonstration on information that he had derived from the victim's autopsy and medical records, being careful to qualify his testimony where details were uncertain, such as the exact number of blows the victim's head had suffered. Considering the record as a whole, the trial court's admission of this demonstrative evidence was not abuse of discretion.

Answer 138

* “Writing” or “recording” means letters, words, or numbers, or their equivalent, set down by handwriting, typewriting, printing, photostating, magnetic impulse, or mechanical or electronic recording or other form of data compilation. * “Photograph” includes still photographs, X-ray films, video recordings, and motion pictures. * “Original” means the writing or recording itself or any counterpart intended to have the same effect by a person executing or issuing it. An original of a photograph includes the negative or any print therefrom. 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. * “Duplicate” means a counterpart produced by the same impression as the original or from the same matrix or by means of photography, including enlargements and miniatures, or by mechanical or electronic rerecording, chemical reproduction, or other equivalent techniques which accurately reproduce the original.

Answer 139

* To prove the content of a writing, recording, or photograph, the original writing, recording, or photograph is required. * Admissibility of Duplicates A duplicate is admissible to the same extent as an original unless (1) a genuine question is raised as to the authenticity of the original or (2) in the circumstances it would be unfair to admit the duplicate in lieu of the original

Answer 140

* Demonstrative Evidence as distinguished from real evidence | * The use of a plastic model of a human skeleton rather than a real human skeleton to assist the explanations.

Answer 141

* Burden of Proof that the Real Evidence Offered is the same as the Real Evidence Involved in the Event in Question. * The Chain of Custody Must Be Established as Part of Fulfilling this Burden of Proof. * The Circuit Court held that the soft drink bottle containing foreign substance was inadmissible where both witnesses who identified bottle had no knowledge of what was in it, and could only testify to exclamation of others (who did not testify) as to nature of foreign substance, and there was no testimony as to care and custody of bottle and its contents.

Answer 142

* Fungibility is the property of an item of evidence whose individual units are capable of mutual substitution or degradation, such as drugs. * When the state seeks to introduce fungible material into evidence, it must show a chain of custody which is adequate to preserve the identity of the evidence. The burden is on the prosecution to show with reasonable certainty that the evidence is the same as that seized and that there has been no tampering or substitution. However, the State need not negate all possibility of tampering, and need only establish reasonable assurance of the identity of the confiscated evidence. Further, in proving chain of custody, the State is not required to show that the substance was guarded each minute it is in one's custody. When there is only a bare speculation of tampering, it is proper to admit the evidence and let what doubt remains go to its weight. Having reviewed the evidence, the Court of Appeals found that the state properly demonstrated the chain of custody of the cocaine.

Answer 143

o Materials that are easily confused or tampered with like drugs or blood must be carefully traced. The proponent must establish a reasonable assurance of the identity of the sample. In one case, the state did not establish sufficient chain of custody of a blood sample to provide reasonable assurance of its identity, and results of test on that sample were deemed to be inadmissible in a rape trial. Test results will not be received where there is no testimony at all about handling of blood from time it was taken to time it was tested. The technician did not testify as to how the blood sample was labeled or packaged or how he received it

Answer 144

o Where a distinctive, hard object is readily identifiable, chain of custody proof is not always required. Proof of chain of custody is not required on non-fungible items. A crack pipe is a “distinct and recognizable physical object” such that it is admissible without showing a chain of custody.

Answer 145

o Appellate court reviews the trial court's decision on the adequacy of chain-of-custody evidence under an abuse of discretion standard. o To show a chain of custody adequate to preserve the identity of fungible evidence, the State must prove with reasonable certainty that the evidence is the same as that seized and that there has been no tampering or substitution; the State is not required to foreclose every possibility of tampering, but need only show reasonable assurance of the identity of the evidence.

Answer 146

o Where the State seeks to introduce evidence of a fungible nature, it must show a chain of custody adequate to preserve the identity of the evidence. The burden is on the State to show with reasonable certainty that the evidence is the same as that seized and that there has been no tampering or substitution. o The State need not negative every possibility of tampering, and need only establish reasonable assurance of the identity of the evidence. o When there is only a bare speculation of tampering, it is proper to admit the evidence and let what doubt remains go to the weight. o The lack of testimony by a crime lab employee who originally receives drugs does not, in all circumstances, break the chain of custody. “Absent affirmative evidence of tampering, mere speculative doubt as to the handling of evidence while in the possession of the Georgia Crime Lab is a matter for consideration by the jury.”

Answer 147

• Admission of photographs is largely within the discretion of the court. • Foundation for admission of a photograph • Silent witness • Foundation for admission of a sound recording by showing the following facts: o That the recording device was capable of taking the conversation now offered in evidence, o that the operator of the device was competent to operate the device, o that recording is authentic and correct, o that changes, additions or deletions have not been made in the recording, o that the recording has been preserved in a manner that is shown to the court and o that the speakers are identified. o United States v. McKeever, 169 F. Supp. 427 (1958) Demonstrative • Clark v. St. Thomas Hospital, 676 S.W. 2d 347 (1984) o Video tape used to present a reenactment of the events in question. o The video tape in this instance depicted a reenactment of the events in which the hospital technician performed her version of her actions and a third party performed the movements of plaintiff as described by the technician in her testimony. The technician testified that the movie was a fair representation of the events narrated in her testimony. o the admission of the questionable evidence was not grossly unfair. Frequently witnesses are permitted to reenact before the jury the actions of the witness described in the testimony. Sometimes the reenactment requires a second person to represent the other participant in the actions. Such evidence is not original evidence, but is illustrative evidence and is valid for consideration only to the extent that it illustrates facts otherwise shown by sworn testimony. Of such character was the evidence in question. The fundamental evidence to be considered by the jury was the sworn oral testimony of the witness who also swore that the reenactment was the same as her testimony.

Answer 148

• Gadson v. State, 263 Ga. 626 (1993) o Videotape, like audio tape or photograph, is distinct recognizable physical object that can be identified upon observation, such that proof of chain of custody is not required.

Answer 149

• State v. Pulphus, 465 A.2d 153 (1983) • Cromartie v. State, 270 Ga. 780 (1999) o Subject to any other valid objection, photographs, motion pictures, videotapes, and audio recordings shall be admissible in evidence when necessitated by the unavailability of a witness who can provide personal authentication and when the court determines, based on competent evidence presented to the court, that such items tend to show reliably the fact or facts for which the items are offered. o The trial court did not abuse its discretion in admitting, after a proper foundation had been laid, the 20–minute portion of the Madison Street Deli surveillance video that depicted the assailant entering the store, the sound of the shot, the assailant's attempt to open the cash register, and the arrival of law enforcement.

Answer 150

* One theory is the “pictorial testimony” theory. Under this theory, the photographic evidence is merely illustrative of a witness' testimony and it only becomes admissible when a sponsoring witness can testify that it is a fair and accurate representation of the subject matter, based on that witness' personal observation. Obviously, the photographic evidence in this case is not admissible under such a theory, since no person could verify that the video tape accurately represented what occurred at the store, based on personal observation. * A second theory under which photographic evidence may be admissible is the “silent witness” theory. Under that theory, the photographic evidence is a “silent witness” which speaks for itself, and is substantive evidence of what it portrays independent of a sponsoring witness. * Fisher v. State, 643 S.W. 2d 571 (1982)

Answer 151

• Commonwealth v. Serge, 896 A. 2d 1170 (Pa. 2006) | o Computer-generated animation (CGA) as demonstrative evidence

Answer 152

* Silent witness | * United States v. McKeever, 169 F. Supp. 427 (1958)

Answer 153

* That the recording device was capable of taking the conversation now offered in evidence, * that the operator of the device was competent to operate the device, * that recording is authentic and correct, * that changes, additions or deletions have not been made in the recording, * that the recording has been preserved in a manner that is shown to the court and * that the speakers are identified.

Answer 154

• The following are examples only — not a complete list — of evidence that satisfies the requirement: o Testimony of a Witness with Knowledge. o Testimony that an item is what it is claimed to be. o Nonexpert Opinion About Handwriting. o A nonexpert’s opinion that handwriting is genuine, based on a familiarity with it that was not acquired for the current litigation. o Comparison by an Expert Witness or the Trier of Fact. o A comparison with an authenticated specimen by an expert witness or the trier of fact.

Answer 155

o The appearance, contents, substance, internal patterns, or other distinctive characteristics of the item, taken together with all the circumstances

Answer 156

• An opinion identifying a person’s voice — whether heard firsthand or through mechanical or electronic transmission or recording — based on hearing the voice at any time under circumstances that connect it with the alleged speaker.

Answer 157

• For a telephone conversation, evidence that a call was made to the number assigned at the time to: o a particular person, if circumstances, including self-identification, show that the person answering was the one called; or o a particular business, if the call was made to a business and the call related to business reasonably transacted over the telephone. o Evidence About Public Records. • Evidence that: o a document was recorded or filed in a public office as authorized by law; or o a purported public record or statement is from the office where items of this kind are kept. • Evidence About Ancient Documents or Data Compilations. o For a document or data compilation, evidence that it: o is in a condition that creates no suspicion about its authenticity; o was in a place where, if authentic, it would likely be; and o is at least 20 years old when offered. • Evidence About a Process or System. o Evidence describing a process or system and showing that it produces an accurate result. • Methods Provided by a Statute or Rule. o Any method of authentication or identification allowed by a federal statute or a rule prescribed by the Supreme Court.

Answer 158

• The following items of evidence are self-authenticating; they require no extrinsic evidence of authenticity in order to be admitted: • Domestic Public Documents That Are Sealed and Signed. A document that bears:  a seal purporting to be that of the United States; any state, district, commonwealth, territory, or insular possession of the United States; the former Panama Canal Zone; the Trust Territory of the Pacific Islands; a political subdivision of any of these entities; or a department, agency, or officer of any entity named above; and  a signature purporting to be an execution or attestation.  Domestic Public Documents That Are Not Sealed but Are Signed and Certified. A document that bears no seal if:  it bears the signature of an officer or employee of an entity named in Rule 902(1)(A); and  another public officer who has a seal and official duties within that same entity certifies under seal — or its equivalent — that the signer has the official capacity and that the signature is genuine.  Foreign Public Documents. A document that purports to be signed or attested by a person who is authorized by a foreign country’s law to do so. The document must be accompanied by a final certification that certifies the genuineness of the signature and official position of the signer or attester — or of any foreign official whose certificate of genuineness relates to the signature or attestation or is in a chain of certificates of genuineness relating to the signature or attestation. The certification may be made by a secretary of a United States embassy or legation; by a consul general, vice consul, or consular agent of the United States; or by a diplomatic or consular official of the foreign country assigned or accredited to the United States. If all parties have been given a reasonable opportunity to investigate the document’s authenticity and accuracy, the court may, for good cause, either:  order that it be treated as presumptively authentic without final certification; or  allow it to be evidenced by an attested summary with or without final certification.  Certified Copies of Public Records. A copy of an official record — or a copy of a document that was recorded or filed in a public office as authorized by law — if the copy is certified as correct by:  the custodian or another person authorized to make the certification; or  (B) a certificate that complies with Rule 902(1), (2), or , a federal statute, or a rule prescribed by the Supreme Court.  Official Publications. A book, pamphlet, or other publication purporting to be issued by a public authority.  Newspapers and Periodicals. Printed material purporting to be a newspaper or periodical.  Trade Inscriptions and the Like. An inscription, sign, tag, or label purporting to have been affixed in the course of business and indicating origin, ownership, or control.  Acknowledged Documents. A document accompanied by a certificate of acknowledgment that is lawfully executed by a notary public or another officer who is authorized to take acknowledgments.  Commercial Paper and Related Documents. Commercial paper, a signature on it, and related documents, to the extent allowed by general commercial law.  Presumptions Under a Federal Statute. A signature, document, or anything else that a federal statute declares to be presumptively or prima facie genuine or authentic.  Certified Domestic Records of a Regularly Conducted Activity. The original or a copy of a domestic record that meets the requirements of Rule 803(6)(A)-(C), as shown by a certification of the custodian or another qualified person that complies with a federal statute or a rule prescribed by the Supreme Court. Before the trial or hearing, the proponent must give an adverse party reasonable written notice of the intent to offer the record — and must make the record and certification available for inspection — so that the party has a fair opportunity to challenge them.  Certified Foreign Records of a Regularly Conducted Activity. In a civil case, the original or a copy of a foreign record that meets the requirements of Rule 902(11), modified as follows: the certification, rather than complying with a federal statute or Supreme Court rule, must be signed in a manner that, if falsely made, would subject the maker to a criminal penalty in the country where the certification is signed. The proponent must also meet the notice requirements of Rule 902(11).

Answer 159

``` • The following items of evidence are self-authenticating: They require no extrinsic evidence of authenticity in order to be admitted. FRE 902 (13). Certified Records Generated by an Electronic process or System. A record generated by an electronic process or system that produce an accurate result, as shown by a certification of a qualified person that complies with the certification requirements of Rule 902(11) or (12). FRE 902(14). Certified Data copied from an electronic Device, Storage Medium, or File. Data copied from an electronic device, storage medium, or file, if authenticated by a process of digital identification, as shown by a certification of a qualified person that complies with the certification requirements of Rule 902(11) or (12). The proponent also must meet the notice requirements of Rule 902(11). • Electronic devices are components for controlling the flow of electrical currents for the purpose of information processing and system control. Prominent examples include transistors and diodes. Electronic devices are usually small and can be grouped together into packages called integrated circuits. • Electronic Storage Media – Any electronic device that can be used to store data. This includes but is not limited to internal and external hard drives, CDs, DVDs, Floppy Disks, USB drives, ZIP disks, magnetic tapes and SD cards. • An electronic document is any electronic media content (other than computer programs or system files) that are intended to be used in either an electronic form or as printed output. Originally, any computer data were considered as something internal — the final data output was always on paper. • Electronic files can be stored in a myriad of different ways. • Dropbox and other cloud storage solutions are incredible for storing electronic documents. Fortunately, they’re simple enough for the average person to utilize, too. Documents can be scanned onto a computer and immediately uploaded to the cloud. From there, these documents are accessible from any computer or even smart phone that has Internet access. • Users can always store electronic files directly on their computer. It’s important to create an organized system for managing these files. Typically, an individual will use folders to achieve this goal. Password-protecting these folders always makes sense. Otherwise, anyone with access to that computer can get into these files. • Another portable solution involves using a flash drive. By storing files on this drive, individuals can take their documents on the go. Users that aren’t comfortable with cloud storage will find this option preferable. Losing the thumb drive can result in plenty of problems for the drive’s owner, though. • Programs are available to assist with digital filing. Document management on computers isn’t always easy. Sometimes, individuals need assistance, and these programs provide various solutions. They can automatically handle the organization structure of a person’s files. Such programs act as library managers with tons of added features for owners. • Another option of storing electronic documents is putting them on a smartphone. Smartphones can be used like flash drives or implemented with cloud storage. Most Americans own a smartphone and take these devices everywhere ```

Answer 160

• Jordan v. State, 247 Ga. 348 (1981) o One type of jury view, the “evidentiary view,” is to permit jury to view evidence introduced in the case, which evidence is so large or fixed that it cannot be brought to courtroom; o The second type of jury view, the “scene view,” is to permit jury to view premises relevant to case to enable jury to better understand testimony and other evidence introduced in court, and a view of the scene is not “evidence” in the case. o Taking the jurors to the scene in question and permitting them to see the evidence being introduced in the case. o Taking the jurors to the scene(s) in question order to help them understand testimony and other evidence being introduced in court. o It is within the discretion of the trial judge as to whether to allow a jury view. • State v. Pauline, 60 P.3d 306 (2002) o Trial court judge has wide discretion in granting or refusing a jury view, and judges should consider the following factors: o the view's importance to the issue at question; o extent to which information from the view could be obtained from other sources; o the extent to which the object or place to be viewed has changed since the controversy arose; and o timing of the view. • McDowell v. Schuette, 610 S.W.2d 29 (1980) o “a view cannot replace testimony; the visual observations of the trier cannot be substituted for testimony; and the only legitimate purpose of an inspection is to illustrate the evidence and provide a base for understanding and comprehending testimony upon the record.’ ”

Answer 161

* A “writing” consists of letters, words, numbers, or their equivalent set down in any form. * A “recording” consists of letters, words, numbers, or their equivalent recorded in any manner. * A “photograph” means a photographic image or its equivalent stored in any form. * An “original” of a writing or recording means the writing or recording itself or any counterpart intended to have the same effect by the person who executed or issued it. For electronically stored information, original means any printout – or other output readable by sight – if it accurately reflects the information. An original of a photograph includes the negative or a print from it * A “duplicate” means a counterpart produced by a mechanical, photographic, chemical, electronic, or other equivalent process or technique that accurately reproduces the original

Answer 162

United States v. Skipper, 74 F. 3d 608 (1996) • FRE 901 Authentication Requirement • Sufficiency of the Evidence • Discretion of the Court • Mere Similarity of Names is not sufficient • Held to be Harmless Error in this case Williamson v. State, 285 Ga. App. 779 (2007) • Circumstantial Evidence Used to Authenticate Document Buckingham Corp. v. Ewing Liquors Co., 305 N.E. 2d 278 (1973) • The authenticity, execution and existence of a Fair Trade Agreement. • Personal knowledge of the signature on an agreement United States v. Sutton, 426 F.2d 1202 (1969) • Authentication of personal letters • Mere contents of written documents are not sufficient, without more, to authenticate the documents as genuine. • Authentication of documents may be made by circumstantial evidence. People v. Lynes, 401 N.E. 2d 405 (1980) • Authentication of telephone conversations • Decided on a case-by-case basis • Reply Letter Doctrine Jones v. City of Willacoochee, 299 Ga. App. 741 (2009) • No presumption arises that letter has been received in the mail unless it is shown the letter was • Written; • was properly addressed to the party; • contained correct postage; and • duly mailed in a United States post office. • Computers, I-Phones, Laptop Computers and New Technolog • Web Pages Images Introduced as Evidence and Authentication Issues

Answer 163

Smoot v. State, 316 Ga. App. 102 (2012) • Printouts from electronic computer sources are subject to the same rules of authentication as other documents. • Over objection, the trial court allowed the State to introduce testimony from the investigating officers and the police lieutenant about the content of the web pages they had reviewed, as well as printouts of the “Ifshewontiwill” website and of the advertisements posted on Craigslist.org. • The printout of the “Ifshewontiwill” website contained photographs of women posing provocatively in various stages of undress, including photographs of Smoot that appeared under the name “Gold.” • The website claimed “If She Won't I Will 100% Satisfaction Guaranteed,” stated that the business focused on “high-quality service” and “customer satisfaction,” and listed “a variety of offerings to choose from,” namely, “Partially/fully nude [c]leaning,” “Partially/fully nude cooking,” “Modeling,” “Dancing (private and parties),” “Girl/Girl Shows,” “Web Cam Shows,” “Escorting (companionship to events),” “X.X.X.,” and “Personal Adult Films.” • The printouts of the advertisements posted on Craigslist.org were from the “adult services” section of that website and contained similar provocative photographs of women along with contact phone numbers. • “Printouts of [w]eb pages must first be authenticated as accurately reflecting the content of the page and the image of the page on the computer at which the printout was made” before they can be introduced into evidence (noting that “to authenticate a printout from a web page, the proponent must present evidence from a percipient witness stating that the printout accurately reflects the content of the page and the image of the page on the computer at which the printout was made”). • Cell Phone Communication Records and Authentication Issues Commonwealth of Pennsylvania v. Koch, 39 A. 3d 996 (2011) • Authentication of electronic communications, like documents, requires more than mere confirmation that the number or address belonged to a particular person; circumstantial evidence, which tends to corroborate the identity of the sender, is required. • Police detective's description of how he transcribed drug-related text messages from defendant's cellular phone, together with his representation that the transcription was an accurate reproduction of text messages on the phone, was insufficient to authenticate the identity of the author as defendant in prosecution for possession with intent to deliver (PWID); although the phone was found on the table in close proximity to defendant, Commonwealth conceded that defendant did not author all of the text messages on her phone, no testimony was presented from persons who sent or received the text messages, there were no contextual clues in the drug-related text messages themselves tending to reveal the identity of the sender.

Answer 164

• Application of Circumstantial Evidence Rule • Chat Room Communications and Authentication Issues • United States v. Gagliardi, 506 F.3d 140 (2d Cir. 2007) o The Court held that chat room logs were authenticated as having been sent by the defendant through testimony of persons who participated in the online conversations); • United States v. Simpson, 152 F.3d 1241, 1249-50 (10th Cir. 1998) o Court held that the combination of identifying personal information given by the user and the corroborating evidence found in the defendant's home near his computer was sufficient to authenticate the chat room log. • Instant Messaging or IMs • Indep. Newspapers, Inc. v. Brodie, 966 A.2d 432, 436 (Md. 2009). o Instant messaging (commonly referred to as “IM”) typically occurs between two people, whereas a chat room typically facilitates group discussions. It is similar to e-mail “in that it is used for the exchange of text or attachments with a specific individual or individuals.” Instant messaging is defined as the exchange of “text messages in real time between two or more people logged into a particular instant messaging (IM) service.” Although conceptually similar, “[i]nstant messaging is more interactive than e-mail because messages are sent immediately, whereas e-mail messages can be queued up in a mail server for seconds or minutes.” Despite being more interactive, “there are no elaborate page layout options in instant messaging as there are with e-mail. The basic operation is simple: type a brief message and then press Enter

Answer 165

• Introduction to the Concept of the Best Evidence Rule • The best evidence rule covers three main issues: 1. When must a writing or recording be produced, 2. When are copies of a writing or recording admissible in lieu of the original, and 3. When are summaries of voluminous documents admissible in lieu of the documents themselves. • Once a document is properly admitted in evidence, the document should “speak for itself,” and a witness should read directly from the document rather than attempt to paraphrase or summarize the contents of the document. • Shedden v. Heard, 110 Ga. 461 (1900) o The “Best Evidence Rule” applies only to writings and other recordings and not to evidence generally. o The “best evidence rule” is really a preferential rule giving first preference to the original writing; such rule has nothing to do with evidence generally, but is restricted to writings alone. o Willingham v. State, 134 Ga. App. 603 (1975)

Answer 166

• Evidence that a document authorized by law to be recorded or filed and in fact recorded or filed in a public office or a purported public record, report, statement, or data compilation, in any form, is from the public office where items of this nature are kept; • Has been in existence 20 years or more at the time it is offered; o For example: o A deed proven to be 20 years old o Muniments of title proven to have been in existence for forty years; o the evidence (such as documents) that enables one to defend the title to an estate or a claim to rights and privileges —usually used in plural o A will more than fifty years old--proven and recorded in the proper office--is admissible as an ancient paper o If a paper is sought to be introduced as an ancient document, the paper itself must be produced to establish its age, and the presumption arising there from of its proper execution • Burchheit v. Gillis, 246 Ga. App. 838 (2000) o Map of subdivision on which prior landowner had in 1955 indicated change in boundary line between adjoining lots was admissible as ancient document in action by landowners to determine boundary.

Answer 167

• The rule of evidence is, that when an admission, conversation or declaration previously made by a party or a witness is pertinent, the side tendering evidence as to the same is at liberty to prove such portion only thereof as is deemed material, and the other side may then bring out the whole of the admission, conversation or declaration, so far as so doing may be essential in order to arrive at the true drift, intent and meaning of what was said on the previous occasion.

Answer 168

• An original writing, recording, or photograph is required in order to prove its content unless these rules or a federal statute provides otherwise. Ga. Code Ann., §24-10-1002 To prove the contents of a writing, recording, or photograph, the original writing, recording, or photograph shall be required. Ga. Code Ann., §24-10-1003 • A duplicate shall be admissible to the same extent as an original unless: • A genuine question is raised as the authenticity of the original; or • A circumstance exists where it would be unfair to admit the duplicate in lieu of the original. Ga. Code Ann., §24-10-1004 • The original is not required, and other evidence of the contents of a writing, recording, or photograph is admissible if: • All originals are lost or have been destroyed, unless the proponent lost or destroyed them in bad faith; or • No original can be obtained by any available judicial process or procedure; or • At a time when an original was under the control of the party against whom offered, that party was put on notice, by the pleadings or otherwise, that the contents would be a subject of proof at the hearing, and that party does not produce the original at the hearing; or • The writing, recording, or photograph is not closely related to a controlling issue. • Case Law Analysis of the “Best Evidence Rule.” • The “best evidence” rule means that, when the contents of a writing are material, the original of the writing must be produced or its absence accounted for. Secondary evidence of the contents of a writing will be admissible “if an original writing is properly authenticated, its existence and admissibility shown, and its absence accounted for....”

Answer 169

• Testimony of defendant's mother concerning a missing letter written to her by co-defendant was inadmissible under best evidence rule in prosecution for felony murder, where defendant's mother was not so familiar with co-defendant's handwriting that she would recognize it, and there was not any other evidence that particular letter which she described was written by co-defendant.

Answer 170

• If a paper shall have been lost or destroyed, proof of the fact to the court shall admit secondary evidence. The question of diligence is one for the sound discretion of the court

Answer 171

• The best evidence rule, or the “original document rule,” provides that “[i]n order to prove the terms of a writing, where the terms are material, the original writing must be produced unless it is shown to be unavailable for some reason other than the serious fault of the proponent.”

Answer 172

• United States v. Siddiqui, 235 F.3d 1318 (2000) o Authentication of Email o a number of factors support the authenticity of the e-mail. The e-mail sent to Yamada and von Gunten each bore Siddiqui's e-mail address “msiddiquo@jajuar1.usouthal.edu” at the University of South Alabama. This address was the same as the e-mail sent to Siddiqui from Yamada as introduced by Siddiqui's counsel in his deposition cross-examination of Yamada. Von Gunten testified that when he replied to the e-mail apparently sent by Siddiqui, the “reply-function” on von Gunten's e-mail system automatically dialed Siddiqui's e-mail address as the sender.

Answer 173

• There is no presumption of authenticity of a document, and the burden of proof rests upon the proffering party to establish a prima facie case of genuineness.

Answer 174

Ga. Code Ann., § 24-9-901(7) • Evidence that a document authorized by law to be recorded or filed and in fact recorded or filed in a public office or a purported public record, report, statement, or data compilation, in any form, is from the public office where items of this nature are kept. Ga. Code Ann., § 24-9-901(8)(C) • Evidence that a document or data compilation, in any form: • Has been in existence 20 years or more at the time it is offered; • FRE 901(8) • [Ancient documents] • FRE 1002. • To prove the content of a writing, recording, or photograph, the original writing, recording, or photograph is required, except as otherwise provided in these rules or by Act of Congress. • FRE 1004 • The original is not required, and other evidence of the contents of a writing, recording, or photograph is admissible

Answer 175

Ga. Code Ann., § 24-1-106 • When a writing or recorded statement or part thereof is introduced by a party, an adverse party may require the introduction at that time of any other part or any other writing or recorded statement which, in fairness, should be considered contemporaneously with the writing or recorded statement. United States v. Duffy, 454 F.2d 809 (1972) • If a paper shall have been lost or destroyed, proof of the fact to the court shall admit secondary evidence. The question of diligence is one for the sound discretion of the court. Wilson v. State, 348 N.E.2d 90 (1976) • The best evidence rule, or the “original document rule,” provides that “[i]n order to prove the terms of a writing, where the terms are material, the original writing must be produced unless it is shown to be unavailable for some reason other than the serious fault of the proponent.”

Answer 176

* The trend over the last 150 years in Georgia, as elsewhere, has been to remove “statutory incompetencies.” Early statutes in Georgia made blacks, “Indians,” and felons incompetent to testify. Parties and others with an interest in the litigation also were deemed incompetent as witnesses. Most of these “statutory incompetencies” were abolished in the mid-19th century. It was not until 1962, however, that criminal defendants in Georgia were allowed to give sworn testimony on their own behalf. * Today, there remains only two statutory incompetencies in Georgia, the incompetency of the trial judge and the jurors. All other challenges to a witness's competency must be based on evidence that the putative witness does not have the mental or physical capacity to give sworn testimony.

Answer 177

o The judge presiding at the trial shall not testify in that trial as witness. No objection need be made in order to preserver this issue. o A member of the jury shall not testify aqs a witness before that jury in the trial of the case in which the juror is sitting. If a juror is called to testify, the opposing party shall be afforded an opportunity to object out of the presence of the jury.

Answer 178

• Competency of a witness is based upon the capacity of a witness to tell the truth, accompanied with a consciousness of the obligation to do so.

Answer 179

In all criminal prosecutions, the accused shall … be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, ….

Answer 180

• Except as otherwise provided in this chapter, every person is competent to be a witness. a. The competency of a witness shall be decided by the court. The court shall by examination decide upon the capacity of one alleged to be incompetent from idiocy, lunacy, insanity, drunkenness, or infancy. b. If an objection to competency is known, it shall be taken before the witness is examined at all. It may be proved by the witness himself or by other testimony. If proved by other testimony, the witness shall be incompetent to explain it away. c. Any fact which in the judgment of the court removes the ground of incompetency shall restore the competency of the witness.

Answer 181

a. Everyone is presumed competent to testify, even people who have been shown to have mental disabilities.” (mentally retarded witness could appreciate the difference between truth and lie and appreciate obligation to tell the truth). In this case, there was no evidence adduced demonstrating that the victim was incompetent. Finally, absent an objection to competence, it is not error to allow a witness to testify without first determining her competence. b. Everyone is presumed competent to testify, even people who have been shown to have mental disabilities. It is critical in determining *783 whether a witness is competent to testify “that the witness be able to appreciate the difference between the truth and a lie and that there is the obligation to tell the truth on the witness stand.” The decision of whether or not such an individual is competent to testify is within the broad discretion of the trial court, and the court's determination will not be disturbed on appeal absent an abuse of that discretion. c. Although the evidence in this case showed that the victim has only the mental capacity of a six- to eight-year-old child, he knew that if one does not tell the truth on the witness stand, “[y]ou get locked up.” When asked, the victim promised that he would answer truthfully all questions asked by the prosecutor and by Lamunyon's attorney, and he demonstrated that he could testify about the incident. Under these circumstances, we conclude that the trial judge did not abuse his discretion in allowing the victim to testify.

Answer 182

A person who has been adjudged insane or has had a guardian appointed for him or her is not always incompetent to testify, nor does a mental disability or disease necessarily render a witness incompetent to testify

Answer 183

To establish lack of mental capacity, it must be shown that a witness lacks a sufficient understanding of the difference between the truth and a lie and of the obligation to tell the truth on the witness stand.

Answer 184

• Every person is competent to be a witness unless these rules provide otherwise. But in a civil case, state law governs the witness’s competency regarding a claim or defense for which state law supplies the rule of decision.

Answer 185

• While children are not, as a matter of law, incompetent to testify merely because of their infancy, children who do not understand the nature of an oath are not competent witnesses.

Answer 186

* Capacity to testify | * Acute Chronic Alcoholism

Answer 187

• A witness may testify to a matter only if evidence is introduced sufficient to support a finding that the witness has personal knowledge of the matter. Evidence to prove personal knowledge may consist of the witness’s own testimony. This rule does not apply to a witness’s expert testimony under Rule 703.

Answer 188

• Before testifying, a witness must give an oath or affirmation to testify truthfully. It must be in a form designed to impress that duty on the witness’s conscience.

Answer 189

* Before testifying, every witness shall be required to declare that he or she will testify truthfully by oath or affirmation administered in a form calculated to awaken the witness’s conscience and impress the witness’s mind with the duty to do so. * “…in all criminal proceedings in which a child was a victim of or witness to any crime, the child shall be competent to testify, and the child’s credibility shall be determined as provided in this chapter.

Answer 190

* The following oath shall be administered to witnesses in criminal cases: * “Do you solemnly swear or affirm that the evidence you shall give to the court and jury in the matter now pending before the court shall be the truth, the whole truth, and nothing but the truth? So help you God.”

Answer 191

• The true purpose of the oath is not to exclude any competent witness, but merely to add a stimulus to truthfulness wherever such a stimulus is feasible.

Answer 192

• A person to whom a lawful oath or affirmation has been administered commits the offense of perjury when, in a judicial proceeding, he knowingly and willfully makes a false statement material to the issue or point in question

Answer 193

• Perception o Perceptions vary from person to person. • Memory o The faculty of the mind by which it retains the knowledge of previous thoughts, impressions, or events. • Narration o A recounting of past events. • Obligation to be truthful (oath requirement) • Freedom from deceit or falseness.

Answer 194

• Ability of Witness to Communicate Using Computerized Assisted Technology

Answer 195

• Use of an interpreter for a witness who did not have the ability to hear and talk.

Answer 196

• An interpreter must be qualified and must give an oath or affirmation to make a true translation.

Answer 197

• It is well settled “that due process concerns are raised when a foreign defendant cannot understand the language spoken to [her].”Therefore, “[t]he use of qualified interpreters is necessary to preserve meaningful access to the legal system for persons who speak and understand only languages other than English.

Answer 198

• The presiding judge may not testify as a witness at the trial. A party need not object to preserve the issue.

Answer 199

• A juror may not testify as a witness before the other jurors at the trial. If a juror is called to testify, the court must give a party an opportunity to object outside the jury’s presence.

Answer 200

• Evidence of a witness’s religious beliefs or opinions is not admissible to attack or support the witness’s credibility.

Answer 201

• Evidence of the beliefs or opinions of a witness on matters of religion shall not be admissible for the purpose of proving that by reason of the nature of the beliefs or opinions the witness's credibility is impaired or enhanced.

Answer 202

• The court should exercise reasonable control over the mode and order of interrogating witnesses and presenting evidence so as to: a. Make those procedures effective for determining the truth, b. Avoid wasting time, and c. Protect witnesses from harassment or undue embarrassment. • Scope of cross-examination pursuant to the Federal Rules of Evidence • Cross-examination should be limited to the subject matter of the direct examination and matters affecting the credibility of the witness.

Answer 203

• Scope of Cross-Examination. Cross-examination should not go beyond the subject matter of the direct examination and matters affecting the witness’s credibility. The court may allow inquiry into additional matters as if on direct examination.

Answer 204

* A witness (in Georgia) may be cross-examined on any matter relevant to any issue in the proceeding. The right of a thorough and sifting cross-examination shall belong to every party as to the witnesses called against the party. If several parties to the same proceeding have distinct interests, each party may exercise the right to cross-examination. * By means of such cross-examination, the defendant is entitled to attack the credibility of the witness by showing that the pending charges reveal a possible bias, prejudice, or ulterior motive on the part of the witness to give untruthful or shaded testimony in an effort to please the State. Whether the witness is testifying pursuant to a deal with the State relating to the pending charges is not crucial to the right to conduct such cross-examination. Rather, the defendant is entitled to show by cross-examination that the witness may be shading his testimony in an effort to curry favor from the State. A desire to cooperate may be formed beneath the conscious level, in a manner not apparent even to the witness, but such a subtle desire to assist the State nevertheless may cloud perception.

Answer 205

• Leading questions should not be used on the direct examination of a witness except as may be necessary to develop the witness' testimony.

Answer 206

o The right of cross-examination in this state includes questioning a witness about subjects relevant to any of the issues in the case, not simply those matters elicited on direct examination

Answer 207

• Limted to subject matter of direct examination

Answer 208

• Exclusion of Witnesses During the Presence of Testimony from Other Witnesses

Answer 209

• At a party’s request, the court must order witnesses excluded so that they cannot hear other witness’s testimony. Or the court may do so on its own. But this rule does not authorize excluding. o A party who is a natural person; o An officer or employee of a party that is not a natural person, after being designated as the party’s representative by its attorney; o A person whose presence a party shows to be essential to presenting the party’s claim or defense; or o A person authorized by statute to be present.

Answer 210

Ga. Code Ann., § 24-6-615 • In all cases either party shall have the right to have the witnesses of the other party examined out of the hearing of each other. Ga. Code Ann., § 24-6-616 • The victim of a criminal offense may be entitled to be present in any court exercising jurisdiction over such offense. It shall be within the sole discretion of the judge to implement the provisions of this Code section and determine when to allow such victim to be present in such court and, if such victim is permitted to be present, to determine the order in which the testimony of such victim shall be given.

Answer 211

* Exclusion of Witnesses or Sequestration of Witnesses * Sequestration requires that witnesses not discuss the case among themselves or anyone else, other than the counsel for the parties.

Answer 212

• People v. Melendez, 102 P. 3d 315 (2004) o Citing witness for contempt o Permitting counsel or court to comment to the jury on witness’s violation of the rule o Precluding the witness’s testimony. • Johnson v. State, 258 Ga. 856 (1989) o When the rule of sequestration is violated, the violation goes to the credibility rather than the admissibility of the witness' testimony. A party's remedy for a violation of the rule is to request the trial court to charge the jury that the violation should be considered in determining the weight and credit to be given the testimony of the witness.

Answer 213

• Northern Pacific Railroad v. Charless, 51 Fed. 562 (1892) o It is within the discretion of the court to allow witness to testify in a narrative form. • Mullins v. State, 147 Ga. App. 330 (1978) o The record indicates that the defendant actually testifying in narrative form. The state made no objection and his testimony was allowed as given. The trial court has a wide discretion to control the forms of examination of a witness to ensure that facts may be clearly and expediently presented.

Answer 214

• Leading questions should not be used on the direct examination of a witness except as may be necessary to develop the witness' testimony. Ordinarily leading questions should be permitted on cross-examination. When a party calls a hostile witness, an adverse party, or a witness identified with an adverse party, interrogation may be by leading questions. • United States v. Clinical Leasing Serv., Inc., 982 F. 2d 900 (1992) o The court acted within its sound discretion when preventing the elicitation of testimony through the use of leading questions. • United States v. Brown, 603 F. 2 1022 (1979)

Answer 215

• Leading questions are generally allowed only in cross-examination. However, the court may exercise discretion in granting the right to the party calling the witness and in refusing it to the opposite party when, from the conduct of the witness or other reason, justice shall require it. • Bell v. State, 294 Ga. App. 779 (2008) o “when, from the conduct of the witness or other reason, justice shall require it.”. . . “[t]he courts have traditionally accorded a great deal of latitude in the examination of young or timid or otherwise disadvantaged witnesses.”

Answer 216

• If a witness uses a writing to refresh his or her memory while testifying, an adverse party shall be entitled to have the writing produced at the hearing or trial, to inspect it, to cross-examine the witness on such writing, and to introduce in evidence those portions of such writing which relate to the testimony of the witness.

Answer 217

• This rule gives an adverse party certain options when a witness uses a writing to refresh memory: a. While testifying; or b. Before testifying, if the court decides that justice requires the party to have those options. • If the court in its discretion determines it is necessary in the interests of justice

Answer 218

• “[I]t is quite immaterial by what means the memory is quickened; it may be a song, or a face, or a newspaper item, or a writing of some character.”

Answer 219

• In considering the defendants' argument, we necessarily begin our analysis with the text of OCGA § 24–6–612, which permits a witness to “use[ ] a writing to refresh his or her memory while testifying,” but also provides that “an adverse party [is] entitled to have the writing produced at the hearing or trial, to inspect it, to cross-examine the witness on such writing, and to introduce in evidence those portions of such writing which relate to the testimony of the witness.” Here, the appellants contend that, notwithstanding their ability to cross-examine the work-detail guard as to the notes that were in his possession during some portion of his direct examination, the guard was improperly permitted to use the notes to refresh his recollection because the document was prepared by the State's prosecutor outside of the guard's presence. And, at least in cases decided under our prior Evidence Code, when a document was “prepared by a third person not in the presence of [the] witness, the [witness's] memory [was] not refreshed by such memorandum and such testimony [was] inadmissible.” This was so even though “a witness [was allowed to] refresh his memory from a writing prepared by another.”

Answer 220

• Opposing party may cross examine how a witness comes to remember anything to which that witness has testified.

Answer 221

• Court erred in refusing opposing party to examine notes and documents which witness used to testify.

Answer 222

* The court may call a witness on its own or at a party’s request. Each party is entitled to cross-examine the witness. * Examining. The court may examine a witness regardless of who calls the witness. * Objections. A party may object to the court’s calling or examining a witness either at that time or at the next opportunity when the jury is not present

Answer 223

* This was a law suit brought by Hugh Charless. He sued to recover the sum of $25,000 for damages for personal injuries which he alleged to have suffered while working for the Northern Pacific Railroad Company. Mr. Charless was a section hand engaged at work on the railroad line at a point near Cheney, then in the territory, now in the state, of Washington. The case was tried before a jury, and Mr. Charless was awarded a judgment for $18,250 and costs. * The issue was whether or not it was an error for the court to allow a witness to give his testimony in a narrative form, even though he stated matters irrelevant or incompetent. Was it the duty of the party objecting to object to the narrative form, and if the witness states matters irrelevant or incompetent is it the duty of the party objecting to move to have such testimony stricken out?

Answer 224

• A State's legitimate interest in barring unreliable evidence does not extend to per se exclusions that may be reliable in an individual case. Wholesale inadmissibility of a defendant's testimony is an arbitrary restriction on the right to testify in the absence of clear evidence by the State repudiating the validity of all posthypnosis recollections. The State would be well within its powers if it established guidelines to aid trial courts in the evaluation of posthypnosis testimony and it may be able to show that testimony in a particular case is so unreliable that exclusion is justified.

Answer 225

• There is no per se rule of admissibility or inadmissibility of hypnotically refreshed testimony. • Court should consider certain factors in a pretrial evidentiary hearing in determining whether to allow hypnotically refreshed testimony. a. The purpose of the hypnosis b. Whether the witness received any suggestions while being hypnotized c. Whether there is record of the hypnosis session d. The training of the hypnotist in psychology or psychiatry e. Whether there is corroborating evidence to support the reliability of the hypnotically-refreshed memories f. Evidence of the witness’s susceptibility to hypnosis g. Expert testimony offered by the parties as the reliability of the procedures used in the hypnosis session.

Answer 226

• Georgia law allows a witness who has been hypnotized to testify only to the specific content of recorded statements that were made prior to hypnosis, or to events occurring after the hypnosis session. Any statement made under hypnosis is not admissible to show the truth of the statement made. The party seeking to offer such testimony further has the burden of showing by clear and convincing evidence that the matters testified to were not cemented during the hypnosis session.

Answer 227

* Cementing occurs when the subject of hypnosis recounts a version of a certain memory accompanied by the suspension of critical judgment inevitably caused by hypnosis. The events as recalled under hypnosis “set up” in the witness' mind due to the suspension of critical judgment and the witness' belief that the hypnosis will produce the “correct” memory. Cementing creates a confident witness and renders cross-examination difficult at best. * Confabulation occurs when the subject of the hypnosis responds to suggestion or expectation to fill in gaps in his memory with fantasy, exaggeration, or memories of other events transferred to compensate for the lack of actual memory. The pressure to fill in the gaps may come from within the witness himself through the desire to be involved in a case or the desire to be a good witness. It may come from the hypnotist through leading questions, repeated questions as to detail, or even body language. The possibility of inaccurate testimony created by confabulation presents perhaps the greatest danger caused by hypnosis of a potential witness.

Answer 228

• [S]tatements made by a subject under hypnosis are not admissible to show the truth of the statement made, [the court has held that]“the reliability of hypnosis has not been established and statements made while the witness was in a trance are inadmissible.” By “the reliability of hypnosis,” we meant the reliability of the actual testimonial product of the hypnosis session. We did not delve into the effect of hypnosis on testimony subsequent to the hypnosis session that was not substantially consistent with recorded, pre-hypnotic statements.... • Courts in the various states have responded to these dangers in a variety of ways.... [W]e agree with the New Jersey court's determination that hypnosis does not inevitably corrupt the memory of every potential witness who undergoes the process. • Henceforth, in Georgia, the testimony of a previously hypnotized witness will not be considered corrupt and inadmissible, as it is in California. That testimony will simply be considered frozen, for the purposes of the party subjecting the witness to hypnosis, as of the date of the hypnosis. That witness subsequently, may only testify, for the party subjecting the witness to hypnosis, as to the specific content of recorded statements that he has made prior to hypnosis, or as to events occurring after the hypnosis session. • The trial court conducted a pretrial hearing to determine the extent to which Lord's testimony may have been influenced by hypnosis. It was determined that Lord gave an oral and written statement to the police in January, 1997; that she was not hypnotized until mid–1997; and that she gave another written statement to the police in 1999. The recording of Lord's hypnotic session was lost, but witnesses who attended the session testified that Lord provided no new details at that time. • Lord's previous and post-hypnotic statements were not in conflict. However, they did differ in that in her 1999 statement Lord supplied some additional information which she had not disclosed previously. To the extent that the statements differed, the trial court limited Lord's testimony to her pre-hypnotic statements. • Hypnosis is a method of therapy which has been utilized by society for quite some time. Recently, it has gained popularity as a new device to be used in the trial setting. • Although it is a legitimate method of therapy in the medical and psychological professions, in the hands of attorneys and the legal system it takes on a whole new life. This new life is plagued with questions of admissibility, reliability and suggestibility. Western scientists first became involved in hypnosis around 1770, when Franz Mesmer (1734–1815), a physician from Austria, started investigating an effect he called "animal magnetism" or "mesmerism" (the latter name still remaining popular today). Hypnosis is thought to work by altering our state of consciousness in such a way that the analytical left-hand side of the brain is turned off, while the non-analytical right-hand side is made more alert. The conscious control of the mind is inhibited, and the subconscious mind awoken. • Franz Anton Mesmer (1734 – 1815) drew upon theories regarding healing by magnetism, going back to Paracelsus, to develop his concept of “animal magnetism”, the main precursor of hypnotism. However, Mesmer himself never hypnotised anyone but believed he healed by channelling a kind of supernatural “magnetism” into his patients’ bodies which seemed capable of inducing an “emotional crisis.” His theory and practices were adopted and modified by many followers. After Mesmer moved to France, his methods became the object of several investigations by scientific committees which pronounced against his theory of animal magnetism, concluding instead that the effects were due to belief and imagination. • The courts have uniformly rejected the admissibility of out-of-court statements made while an individual is in hypnosis. In contrast, the courts divided sharply over the admissibility of hypnotically refreshed testimony.

Answer 229

• The “per se admissible” rule by ruling that hypnosis does not render the witness incompetent, but the fact that they were subjected to hypnosis goes to their credibility. • The “New Jersey Rule” (Adopted from State v. Hurd, 86 N.J. 525 (1981)) o Psychiatrist or psychologist must be experienced in the use of hypnosis. o Professional conducting exam must be independent. o Any information given to law enforcement must be recorded either in writing or other “suitable form.” o Professional should ask structured questions only. o All contacts between hypnotist and subject must be recorded. o Only hypnotist and subject should be present during any phase of hypnotic session. o The totality-of-the circumstances approach. o Evaluation of the purpose of the hypnosis. o Did the subject received suggestions from hypnotist. o Presence or absence of a permanent record. o Was hypnotist a psychiatrist or psychologist? o Is there any corroborating evidence supporting testimony. o Is there evidence of subject’s hypnotizability? o Evaluation and consideration of expert testimony about procedures. o Use of a pre-trial hearing to test credibility of evidence presented.

Answer 230

• The “per se exclusion” rule. • The “per se admissible” rule by ruling that hypnosis does not render the witness incompetent, but the fact that they were subjected to hypnosis goes to their credibility. • The “New Jersey Rule” (Adopted from State v. Hurd, 86 N.J. 525 (1981)) o Psychiatrist or psychologist must be experienced in the use of hypnosis. o Professional conducting exam must be independent. o Any information given to law enforcement must be recorded either in writing or other “suitable form.” o Professional should ask structured questions only. o All contacts between hypnotist and subject must be recorded. o Only hypnotist and subject should be present during any phase of hypnotic session. • The totality-of-the circumstances approach. o Evaluation of the purpose of the hypnosis. o Did the subject received suggestions from hypnotist. o Presence or absence of a permanent record. o Was hypnotist a psychiatrist or psychologist? o Is there any corroborating evidence supporting testimony. o Is there evidence of subject’s hypnotizability? o Evaluation and consideration of expert testimony about procedures. o Use of a pre-trial hearing to test credibility of evidence presented. o The two primary dangers inherent in the hypnosis of a potential witness

Answer 231

o This occurs when the subject of hypnosis recounts a version of a certain memory accompanied by the suspension of critical judgment inevitably caused by hypnosis. In other words, the hypnosis process instills unchangeable belief in the correctness of the “memory.”

Answer 232

o This occurs when the subject of the hypnosis responds to suggestion or expectation to fill in gaps in his memory with fantasy, exaggeration, or memories of other events transferred to compensate for the lack of actual memory.

Answer 233

• The Elicitation* of Testimony e·lic·it Transitive verb. e·lic·it·ed, e·lic·it·ing, e·lic·its 1. a. To bring or draw out (something latent); educe. b. To arrive at (a truth, for example) by logic. 2. To call forth, draw out, or provoke (a reaction, for example).

Answer 234

• A witness may not testify to a matter unless evidence is introduced sufficient to support a finding that the witness has personal knowledge of the matter. Evidence to prove personal knowledge may, but need not, consist of witness’ own testimony. This rule is subject to the provisions of Rule 703, relating to opinion testimony by expert witnesses. Kemp v. Balboa, 23 F. 3d 211 (8th Circ. 1994) • There must be first-hand knowledge before memory can be refreshed. Jackson v. Leach, 152 A. 813 (Md. App. Ct. 1931) • Opinion as to speed of a vehicle Nairon v. State, 215 Ga. App. 76 (1994)

Answer 235

* If a witness is not testifying as an expert, testimony in the form of an opinion is limited to one that is: * Rationally based on the witness’s perception. * Helpful to clearly understanding the witness’s testimony or to determining a fact in issue; and * Not based on scientific, technical, or other specialized knowledge within the scope of Rule 702. * A lay witness, also known simply as a “witness,” is any person who gives testimony in a case, but who is not an expert. In a personal injury case, a lay witness may be the plaintiff, the defendant, or someone who saw the accident in which the plaintiff was injured. * Under the Federal Rules of Evidence and now under Georgia Rules of Evidence, a court will permit a person who is not testifying as an expert to testify in the form of an opinion if the opinion is both rationally based on his perception and helps to explain the witness's testimony. * Opinion evidence refers to evidence of what the witness thinks, believes, or infers in regard to facts, as distinguished from personal knowledge of the facts themselves. * Remember, this would be outside of the perception, memory, narration, and oath requirements discussed for “fact” witnesses.

Answer 236

This Georgia Evidence Code Section mirrors the federal rule with one additional rule set forth as subparagraph (b)] • Direct testimony as to market value is in the nature of opinion evidence. 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.

Answer 237

• “[d]irect 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 to its value if he has had an opportunity for forming a correct opinion.” The witness testified that he was familiar with the properties at issue, in which he had an ownership interest, and that he also was familiar with comparable properties, which he had considered in reaching his opinion.

Answer 238

* Testimony about observations of a person’s mental and physical conditions. * Georgia’s Version of the Parker case

Answer 239

OCGA 51-1-17 • Adultery, alienation of affections, or criminal conversation with a wife or husband shall not give a right of action to the person’s spouse. Rights of action for adultery, alienation of affections, or criminal conversation are abolished. Brewer v. Paulk, 296 Ga.App. 26 (2009) • Krueger v. State Farm Mutal Auto. Ins. Co., 707 F. 2d 312 (1983) o Lay opinion or inferences are limited to those which are rationally based on the perception of the witness and helpful to a clear understanding of the witness‘ testimony. • Rupert v. People, 429 P. 2d 276 (1967) o Presumption of Sanity o Lay person’s Opinion of Mental State • Briard v. State, 188 Ga. App. 490 (1988) o A lay witness, with sufficient facts to form the basis for the opinion, may also testify as to the sanity of an individual.

Answer 240

o OCGA § 24–7–701(a)(1) provides that a lay “witness's testimony in the form of opinions or inferences shall be limited to those opinions or inferences which are ... [r]ationally based on the perception of the witness.” Here, Little's testimony that the car was traveling 60 to 70 mph could not be rationally based on her perception of how the impact felt. She acknowledged that she had never before been hit by a car traveling at that speed and that she was not an expert in accident reconstruction.

Answer 241

o It is well-settled that although HGN and VGN tests constitute scientific procedures. o [However field sobriety tests such as the walk and turn and the one leg stand, both of which demonstrate a suspect's dexterity and ability to follow directions, do not constitute scientific procedures. And, testimony from an officer about a suspect's inability to complete such dexterity tests does not amount to testimony regarding scientific procedures, but instead amounts to testimony as to behavioral observations on the officer's part. Therefore, these two tests and any testimony concerning their administration are not subject to the standard ... for determining whether a scientific procedure is admissible. o Note: (“The walk and turn test and the one[ ] leg stand test, however, are not scientific tests so they are not subject to [Federal Rule of Evidence] 702. Instead, these tests are lay observations[,] which are admissible under [Federal Rule of Evidence] 701.”).

Answer 242

• If the witness is not testifying as an expert, the witness’ testimony in the form of opinions or inferences is limited to those opinions or inferences which are a. rationally based on the perception of the witness, and b. helpful to a clear understanding of the witness’ testimony or the determination of a fact in issue, and c. Not based on scientific, technical or other specialized knowledge with the scope of Rule 702.

Answer 243

(a). Lay opinion or inferences are limited to those which are rationally based on the perception of the witness and helpful to a clear understanding of the witness‘ testimony.

Answer 244

* Presumption of Sanity | * Lay person’s Opinion of Mental State

Answer 245

• A lay witness, with sufficient facts to form the basis for the opinion, may also testify as to the sanity of an individual.

Answer 246

• If the witness is not testifying as an expert, the witness’s testimony in the form of opinions or inferences shall be limited to those opinions or inferences which are: 1. Rationally based on the perception of the witness; 2. Helpful to a clear understanding of the witness’s testimony or the determination of a fact in issue; and 3. Not based on scientific, technical, or other specialized knowledge within the scope of Code Section 24-7-702. b. Direct testimony as to market value is in the nature of opinion evidence. 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. c. Brief Review of FRE 602 1. A witness may not testify to a matter unless evidence is introduced sufficient to support a finding that the witness has personal knowledge of the matter. Evidence to prove personal knowledge may, but need not, consist of witness’ own testimony.

Answer 247

• A witness who is qualified as an expert by knowledge, skill, experience, training, or education may testify in the form of an opinion or otherwise if: 1. The expert’s scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue; 2. The testimony is based on sufficient facts or data; 3. The testimony is the product of reliable principles and methods; and 4. The expert has reliably applied the principles and methods to the facts of the case. a. It is the intent of the legislature that, in all civil proceedings, the courts of the State of Georgia not be viewed as open to expert evidence that would not be admissible in other states. Therefore, in interpreting and applying this Code section, the courts of this state may draw from the opinions of the United States Supreme Court in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993); General Electric Co. v. Joiner, 522 U.S. 136 (1997); Kumho Tire Co. Ltd. v. Carmichael, 526 U.S. 137 (1999); and other cases in federal courts applying the standards announced by the United States Supreme Court in these cases.

Answer 248

• Except as provided in Code Section 22-1-14 and in subsection (g) of this Code section, the provisions of this Code section shall apply in all civil proceedings. . .

Answer 249

* When property is condemned under this title or any other title of this Code, the value of the condemned property may be determined through lay or expert testimony and its admissibility shall be addressed to the sound discretion of the court. * If any party to a condemnation proceeding seeks to introduce expert testimony as to the issue of just and adequate compensation, Code Section 24-7-702 shall not apply.

Answer 250

• This Code section shall not be strictly applied in proceedings conducted pursuant to Chapter 9 of Title 34 or in administrative proceedings conducted pursuant to Chapter 13 of Title 50 i. Chapter 9 of Title 34 applies to Worker’s Compensation Claims ii. Chapter 13 of Title 50 applies to administrative proceedings.

Answer 251

• Notwithstanding the provisions of subsection (b) of this Code section and any other provision of law which might be construed to the contrary, in professional malpractice actions, the opinions of an expert, who is otherwise qualified as to the acceptable standard of conduct of the professional whose conduct is at issue, shall be admissible only if, at the time the act or omission is alleged to have occurred, such expert: o Was licensed by an appropriate regulatory agency to practice his or her profession in the state in which such expert was practicing or teaching in the profession at such time; and o In case of a medical malpractice action, had actual professional knowledge and experience in the area of practice or specialty in which the opinion is to be give as the result of having been regularly engaged in: o The active practice of such area of specialty of his or her profession for at least three of the last five years, with sufficient frequency to establish an appropriate level of knowledge, as determined by the judge, in performing the procedure, diagnosing the condition, or rendering the treatment which is alleged to have been performed or rendered negligently by the defendant whose conduct is at issue; or o The teaching of his or her profession for at least three of the last five years as an employed member in the faculty of an educational institution accredited in the teaching of such profession, with sufficient frequency to establish an appropriate level of knowledge, as determined by the judge, in teaching others how to perform the procedure, diagnose the condition, or render the treatment which is alleged to have been performed or rendered negligently by the defendant whose conduct is at issue; C. A witness who is qualified as an expert by knowledge, skill, experience, training, or education may testify in the form of an opinion or otherwise if: 1. The expert’s scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue; 2. The testimony is based on sufficient facts or data; 3. The testimony is the product of reliable principles and methods; and 4. The expert has reliably applied the principles and methods to the facts of the case. • “Scientific knowledge” is that body of knowledge that has been learned or developed in accordance with rigorous scientific methodology. The scientific method involves replicable, empirical testing of hypotheses. • Federal Rule of Evidence 702 limits expert testimony to “scientific knowledge,” that will assist the jury in determining a fact in issue. 1. Scientific experts (generally) are professionals recognized as scientific, such as physicians. 2. Technical experts may (generally) testify to non-scientific man-made rules, such as accounting standards. 3. Other specialized experts may include such people as bankers or appraisers who testify about land values. • Various Fields of Scientific Study

Answer 252

* Under OCGA § 24-7-702, a witness with specialized knowledge may be qualified to provide expert opinion testimony. “A trial court retains broad discretion in determining whether to admit or exclude evidence, and an appellate court generally will not interfere with that discretion absent abuse.” * To establish reversible error, a party seeking review of a trial court's ruling excluding testimony must show how the testimony would have benefitted her case. * “An appellant must show harm as well as error to prevail on appeal; error to be reversible must be harmful.” * To make this showing, a party must proffer the excluded testimony to the trial court. Absent such a proffer, we have no basis in the record to disturb the trial court's ruling.

Answer 253

• Before1923, the general standard for determining the admissibility of expert testimony in court cases rested on the assumption that experts had superior knowledge and training. The court imputed this expertise based on an expert’s qualifications and success in his or her profession. After 1923, the federal courts (and a great number of state courts) followed the “General Acceptance Test.” • Pursuant to the General Acceptance Test, the trial judge has the responsibility of determining whether the scientific evidence at issue has gained sufficient recognition in the scientific community to justify admitting the evidence. This standard required judges to differentiate among scientific principles that had attained sufficient recognition and scientific principles that had not achieved this status. • The Court articulated the "general acceptance" test, which requires a two-part analysis: o (1) identifying the field in which the underlying principle falls; and o (2) determining whether the proffered evidence is generally accepted in this field.

Answer 254

* Experts Opinions, once admitted, must be weighed by jurors. * Jury not obliged to believe a witness just because the witness has been presented as an expert.

Answer 255

1. Frye deals with whether or not to admit the results of a systolic blood pressure deception test. 2. The presiding judge threw out the evidence ruling that the systolic blood pressure deception test has “not has not yet gained such standing and scientific recognition among physiological and psychological authorities as would justify the courts in admitting expert testimony deduced from the discovery, development and experiments thus far made”. 3. This case became known as the Frye Test for Acceptability of scientific testimony or as the General Acceptance Test. 4. Admission of Expert Testimony is dependent upon the General Acceptance of the scientific field by other experts. 5. Pursuant to the Frye “General Acceptance Test “the judge may defer to scientific expertise precisely as to whether or not it has gained “general acceptance” in the relevant field. i. The trial court’s gatekeeper role in this respect is conservative, thus helping to keep “pseudoscience” out of the courtroom.

Answer 256

• The court in this case held that the requirement of applying the “Frye Test” was to assure that the most qualified assess the general validity of a scientific method and the judge determines whether the test has reached a level of “general acceptance in the scientific community.

Answer 257

• In criminal proceedings, the opinions of experts on any question of science, skill, trade, or like questions shall always be admissible; and such opinions may be given on the facts as proved by other witnesses.

Answer 258

* This case provides the test for the acceptance of scientific evidence in Georgia. * The court held that it is proper for the trial judge to decide whether the procedure or technique in question has reached a scientific stage of verifiable certainty, or in the words of Professor Irving Younger, whether the procedure “rests upon the laws of nature.” * This case is only applicable in criminal cases pursuant to legislation.

Answer 259

• The Georgia Supreme Court held that new OCGA § 24-7-702, and Daubert do not control the admission of evidence in criminal proceedings.”

Answer 260

• In light of the long-standing history of Harper and its progeny, which existed when the legislature enacted the Daubert test in [Georgia's Tort Reform Act], we do not conclude that the legislature intended to abandon the Harper evidentiary test in criminal cases. Indeed, OCGA § 24–9–702 affirms Georgia's traditional reliance upon Harper in criminal matters, and we expressly hold that new Ga. Code Ann., §24-9-702 nor Daubert controls the admission of evidence in criminal proceedings.

Answer 261

* Scientific evidence is not admissible in criminal cases unless “the procedure or technique in question has reached a scientific stage of verifiable certainty, or in the words of Professor Irving Younger, ... the procedure ‘rests upon the laws of nature.’ * It is the role of the trial court to determine whether a scientific procedure or technique constitutes competent evidence under Harper and the trial court's determination will not be disturbed absent a clear abuse of discretion. * “The trial court may make this determination from evidence presented to it at trial by the parties; in this regard expert testimony may be of value. Or the trial court may base its determination on exhibits, treatises or the rationale of cases in other jurisdictions. Furthermore, “[o]nce a procedure has been recognized in a substantial number of courts, a trial judge may judicially notice, without receiving evidence, that the procedure has been established with verifiable certainty, or that it rests upon the laws of nature.” Hence, if a scientific procedure or technique “is not novel, and has been widely accepted in Georgia courts,” the trial court is entitled to take judicial notice that the procedure or technique meets the Harper standard for admissibility.

Answer 262

* Reinhard argues that the testimony was inadmissible because the State did not establish that the tests that the therapist administered to his daughter were admissible under Harper v. State, 249 Ga. 519, 524–525(1)(1982). * Under the longstanding precedent of [Harper,] scientific evidence is not admissible in criminal cases unless the procedure or technique in question has reached a scientific stage of verifiable certainty.... It is the role of the trial court to determine whether a scientific procedure or technique constitutes competent evidence under Harper, and the trial court's determination will not be disturbed absent a clear abuse of discretion. The trial court may make this determination from evidence presented to it at trial by the parties; in this regard expert testimony may be of value. * In this case, the therapist testified that her evaluations of children are based on her conversations with and observations of them, as well as standardized assessments and tests. The therapist explained that the standardized assessments that she uses and that she administered to Reinhard's daughter can only be administered by credentialed therapists, after they have gone through a period of supervised use of the tests. The therapist had been administering these tests for more than five years. The tests are highly reliable; they are designed to give consistent results even if read by different people; they have been used by many people; and research shows that they are accurate and measure what they are designed to measure. Additionally, one standardized assessment used in evaluating Reinhard's daughter, the Trauma Symptoms Checklist, has a built-in validity scale that indicates whether a child is over-reporting or under-reporting. Reinhard cross-examined the therapist as to her qualifications, the assessments she used, and her treatment of his daughter. * The State established through the therapist's testimony that the use of these assessments has reached a scientific state of verifiable certainty justifying their admission. * State sufficiently established that use of assessments for evaluating children who alleged sexual abuse had reached a scientific state of verifiable certainty justifying admission into evidence, such that trial court did not abuse its discretion in allowing therapist to testify that she had diagnosed child victim with post traumatic stress disorder (PTSD) based, in part, on such tests, in child molestation case; therapist explained that assessments could only be administered by credentialed therapists after going through period of supervised use of tests, that she had been administering tests for more than five years, that tests were highly reliable, designed to give consistent results even if read by different people, that they had been used by many people, and that research showed tests to be accurate and to measure what they were designed to measure.

Answer 263

* Except as provided in subsection (b) of this Code section, 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. * No expert witness testifying with respect to the mental state or condition of an accused in a criminal proceeding shall state an opinion or inference as to whether the accused di or did not have the mental state or condition constitution an element of the crime charged or of a defense thereto. Such ultimate issues are matters for the trier of fact alone. * Sanity or Insanity is a legal question not a medical condition.

Answer 264

• In criminal proceedings, the opinions of experts on any questions of science, skill, trade, or like questions shall always be admissible; and such opinions may be given on the facts as proved by other witnesses.

Answer 265

* The general rule in Georgia is that the results of polygraph tests, including voice stress tests, whether favorable or unfavorable to an accused, are not admissible in evidence, as they are not considered reliable. * The results of a polygraph examination are inadmissible with two exceptions, by a proper stipulation of the parties, or to explain an actor’s conduct or motive when such is relevant to the issues on trial. * In essence, the State contends that Parfenuk opened the door to the test results by testifying that he voluntarily agreed to take a lie detector test and that, after going to the police station, Detective Bradley asked him some questions. Although we find no case with these specific facts, the Supreme Court of Georgia has held that a defendant may open the door concerning the results of a polygraph examination of a witness by eliciting from the witness that the police made her take a polygraph and that the test indicated that she was telling the truth. * Here, however, defense counsel did not elicit testimony about the test from Parfenuk and Parfenuk did not reveal the test results, yet the State was allowed to introduce the results of the tests, not just information about a request for a test. Rather, Parfenuk's comment, which came toward the end of a lengthy narrative, appears to have been spontaneous or inadvertent. There is no indication that defense counsel solicited the testimony. And our Supreme Court has held that the mere fact that a witness informs the jury that the defendant took a lie detector test is not prejudicial to the defendant if no inference is raised as to the result or if any inferences that might be raised as to the result are not prejudicial.

Answer 266

• A witness who is qualified as an expert by knowledge, skill, experience, training, or education may testify in the form of an opinion or otherwise if: 1. The expert’s scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue; 2. The testimony is based on sufficient facts or data; 3. The testimony is the product of reliable principles and methods; and 4. The expert has reliably applied the principles and methods to the facts of the case.

Answer 267

• Except as provided in Code Section 22--1-14 and in subsection (g) of this Code section, the provisions of this Code section shall apply in all civil proceedings. The opinion of a witness qualified as an expert under this Code section may be given on the facts as proved by other witnesses. • If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education may testify thereto in the form of an opinion or otherwise, if: 1. The testimony is based upon sufficient facts or data; 2. The testimony is the product of reliable principles and methods; and 3. The witness has applied the principles and methods reliably to the facts of the case which have been or will be admitted into evidence before the trier of fact. • Notwithstanding the provisions of subsection (b) of this Code section and any other provision of law which might be construed to the contrary, in professional malpractice actions, the opinions of an expert, who is otherwise qualified as to the acceptable standard of conduct of the professional whose conduct is at issue, shall be admissible only if, at the time the act or omission is alleged to have occurred, such expert: 1. Was licensed by an appropriate regulatory agency to practice his or her profession in the state in which such expert was practicing or teaching in the profession at such time; and 2. In the case of a medical malpractice action, had actual professional knowledge and experience in the area of practice or specialty in which the opinion is to be given as the result of having been regularly engaged in: a. The active practice of such area of specialty of his or her profession for at least three of the last five years, with sufficient frequency to establish an appropriate level of knowledge, as determined by the judge, in performing the procedure, diagnosing the condition, or rendering the treatment which is alleged to have been performed or rendered negligently by the defendant whose conduct is at issue; or b. The teaching of his or her profession for at least three of the last five years as an employed member of the faculty of an educational institution accredited in the teaching of such profession, with sufficient frequency to establish an appropriate level of knowledge, as determined by the judge, in teaching others how to perform the procedure, diagnose the condition, or render the treatment which is alleged to have been performed or rendered negligently by the defendant whose conduct is at issue; and c. Except as provided in subparagraph (D) of this paragraph: i. Is a member of the same profession; ii. Is a medical doctor testifying as to the standard of care of a defendant who is a doctor of osteopathy; or iii. Is a doctor of osteopathy testifying as to the standard of care of a defendant who is a medical doctor; and d. Notwithstanding any other provision of this Code section, an expert who is a physician and, as a result of having, during at least three of the last five years immediately preceding the time the act or omission is alleged to have occurred, supervised, taught, or instructed nurses, nurse practitioners, certified registered nurse anesthetists, nurse midwives, physician assistants, physical therapists, occupational therapists, or medical support staff, has knowledge of the standard of care of that health care provider under the circumstances at issue shall be competent to testify as to the standard of that health care provider. However, a nurse, nurse practitioner, certified registered nurse anesthetist, nurse midwife, physician assistant, physical therapist, occupational therapist, or medical support staff shall not be competent to testify as to the standard of care of a physician. • Upon motion of a party, the court may hold a pretrial hearing to determine whether the witness qualifies as an expert and whether the expert's testimony satisfies the requirements of subsections (a) and (b) of this Code section. Such hearing and ruling shall be completed no later than the final pretrial conference contemplated under Code Section 9-11-16. • An affiant shall meet the requirements of this Code section in order to be deemed qualified to testify as an expert by means of the affidavit required under Code Section 9-11-9.1. • It is the intent of the legislature that, in all civil proceedings, the courts of the State of Georgia not be viewed as open to expert evidence that would not be admissible in other states. Therefore, in interpreting and applying this Code section, the courts of this state may draw from the opinions of the United States Supreme Court in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993); General Electric Co. v. Joiner, 522 U.S. 136 (1997); Kumho Tire Co. Ltd. v. Carmichael, 526 U.S. 137 (1999); and other cases in federal courts applying the standards announced by the United States Supreme Court in these cases.

Answer 268

• Courts both before and after Daubert have found other factors relevant in determining whether expert testimony is sufficiently reliable to be considered by the trier of fact. These factors include: • Whether experts are proposing to testify about matters growing naturally and directly out of research they have conducted independent of the litigation, or whether they have developed their opinions expressly for purp0oses of testifying. • Whether the expert has unjustifiably extrapolated from an accepted premise to an unfounded conclusion. In some cases a trial court may conclude that there is simply too great an analytical gap between the data and the opinion proffered. • Whether the expert has adequately accounted for obvious alternative explanations. • Whether the expert is being as careful as he would be in his regular professional work outside his paid litigation consulting. • Whether the field of expertise claimed by the expert is known to reach reliable results for the type of opinion the expert would give. For example, a clinical doctor was properly precluded from testifying to the toxicological cause of the plaintiff’s respiratory problems where the opinion was not sufficiently grounded in scientific methodology. o In Kumho, the court noted that “[W]e conclude that the trial court must have considerable leeway in deciding in a particular case how to go about determining whether particular expert testimony is reliable. o No singly factor is necessarily dispositive of the reliability of a particular expert’s testimony.

Answer 269

* When property is condemned under this title or any other title of this Code, the value of the condemned property may be determined through lay or expert testimony and its admissibility shall be addressed to the sound discretion of the court * If any party to a condemnation proceeding seeks to introduce expert testimony as to the issue of just and adequate compensation, Code Section 24-7-702 shall not apply.

Answer 270

• “Scientific knowledge” is that body of knowledge that has been learned or developed in accordance with rigorous scientific methodology. The scientific method involves replicable, empirical testing of hypotheses. • Federal Rule of Evidence 702 limits expert testimony to “scientific knowledge,” that will assist the jury in determining a fact in issue. o Scientific experts (generally) are professionals recognized as scientific, such as physicians. • Technical experts may (generally) testify to non-scientific man-made rules, such as accounting standards. • Other specialized experts may include such people as bankers or appraisers who testify about land values.

Answer 271

• Junk Science o This is a term used in U.S. political and legal disputes that brands an advocate's claims about scientific data, research, analyses as spurious. The term generally conveys a pejorative connotation that the advocate is driven by political, ideological, financial, and other unscientific motives. o Peter W. Huber in 1991 is credited with first introducing this phrase in the context of litigation. • Science in the courtroom has not been confined to just torts litigation and public policy and religion. One of the most important social cases ever decided by the United States Supreme Court relied on scientific evidence.

Answer 272

o The doctrine of “Separate but Equal” was found to be unconstitutional, in part, because of scientific evidence presented to the Court. The Court found that segregation violated the equality guaranteed by the 14th Amendment. This finding was based, in large part, on evidence relating to studies by Dr. Kenneth Clark which showed that segregation “generates a feeling of inferiority as [minorities] as to their status in the community that may affect their hearts and minds in a way unlikely ever to be undone.”

Answer 273

• Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579(1993) o This case was used to determine the standard for admitting expert scientific testimony in a federal trial. “ o “In this case we are called upon to determine the standard for admitting expert scientific testimony in a federal trial.” o This case was used to reevaluate the Frye Standard of the Admissibility of scientific evidence. o Frye was certainly part of the federal common law of evidence because it was decided almost 50 years before the Rules were enacted. o The Daubert decision discussed five factors to be used to determine if scientific evidence is valid and admissible.

Answer 274

a. The court required that the theory or procedure be testable since testability is the hallmark of a scientific method. Unscientific methods proffered by proponents of junk science frequently are untestable; either a positive or negative result will support the expert’s opinion. Scientific methods involve hypotheses which can be falsified or refuted; if the method or theory cannot be refuted it is unscientific.

Answer 275

a. The Court also required trial courts to look at whether the theory or method had been subjected to and passed the peer review process since the peer review process is a component of good science which reduces the likelihood that the method will have undetected flaws. Peer review does not ensure a valid and reliable method, nor does the absence of peer review render it inadmissible. Again, it is only a factor to be considered.

Answer 276

Even if a theory or method is testable, it may have such a high error rate as to not make it a terribly reliable method. For example, in theory it is possible to measure the speed of cars with a meter stick and a wrist watch; in practice, the method is likely to be so unreliable that no court would admit it into evidence.

Answer 277

a. General Acceptance i. Although the court rejected "general acceptance" as the sole criteria governing admissibility, the court did acknowledge that it is a fact to be considered by trial courts. Where novel scientific evidence is at issue, inquiry allows the judiciary to defer to scientific expertise precisely as to whether or not it has the scientific method or theory gained “general acceptance” in the relevant field. ii. “Abuse of discretion–the standard ordinarily applicable to review of evidentiary rulings–is the proper standard by which to review a district court’s decision to admit or exclude expert scientific evidence.

Answer 278

o This case gave two clarifications of Daubert 1. Trial court judges could scrutinize the reliability of an expert’s reasoning process as well as the expert’s general methodology. 2. The decision of the trial court judge as to whether to admit particular scientific evidence was to be reviewed only for an abuse of discretion. a. Justice John Paul Stevens wrote that an example of "junk science" that should be excluded under the Daubert standard as too unreliable would be the testimony of a phrenologist who would purport to prove a defendant’s future dangerousness based on the contours of the defendant’s skull. ‘ • You should begin to recognize the significance of the Old Chief decision.

Answer 279

• The Daubert factors may apply to the testimony of engineers and other experts who are not scientists.

Answer 280

* The first question to be asked is whether there is any necessity for the testimony of an expert. Expert testimony may be admitted where the inferences that are sought to be drawn are inferences that a jury could not draw on its own. * The judge noted that while jurors may well be confident that they can draw the appropriate inferences about eyewitness identification directly from their life experiences, their confidence may be misplaced, especially where cross-racial identification is concerned.

Answer 281

I. The trial judge ruled that the expert opinion evidence concerning the results of DNA testing, as well as expert opinion evidence as to the validity and reliability of the statistical analysis would assist the jury in understanding the evidence or otherwise to determine a fact in issue and that the results are scientifically valid and reliable.

Answer 282

1. Testing o Has the technique been tested in actual field conditions (and not just in a laboratory)? 2. Peer Review o Has the technique been subject to peer review and publication? o This is a system of review of research applications that utilizes reviewers who are the professional peers of the principal investigator responsible for direction or conducting the proposed project. 3. Error Rates • What is the known or potential rate of error? Is it zero, or low enough to be close to zero? 4. General Acceptance • Has the technique been generally accepted within the relevant scientific community?

Answer 283

• The Court in Daubert discussed five factors to be used to determine if scientific evidence is valid and admissible: 1. Whether the theory or technique in question can be and has been tested 2. Whether it has been subjected to peer review and publication 3. Its known or potential error rate 4. The existence and maintenance of standards controlling its operation 5. Whether it has attracted widespread acceptance within a relevant scientific community • These five concerns for reliability of the outcome of a scientific theory or process became known as the Daubert factors.

Answer 284

• Except as provided in Code Section 22-1-14 and in subsection (g) of this Code section, the provisions of this Code section shall apply in all civil proceedings. The opinion of a witness qualified as an expert under this Code section may be given on the facts as proved by other witnesses. • If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education may testify thereto in the form of an opinion or otherwise, if: 1. The testimony is based upon sufficient facts or data; 2. The testimony is the product of reliable principles and methods; and 3. The witness has applied the principles and methods reliably to the facts of the case which have been or will be admitted into evidence before the trier of fact. • It is the intent of the legislature that, in all civil proceedings, the courts of the State of Georgia not be viewed as open to expert evidence that would not be admissible in other states. Therefore, in interpreting and applying this Code section, the courts of this state may draw from the opinions of the United States Supreme Court in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993); General Electric Co. v. Joiner, 522 U.S. 136 (1997); Kumho Tire Co. Ltd. v. Carmichael, 526 U.S. 137 (1999); and other cases in federal courts applying the standards announced by the United States Supreme Court in these cases.

Answer 285

• An expert may base an opinion on facts or data in the case that the expert has been made aware of or personally observed. If experts in the particular field would reasonably rely on those kinds of facts or data in forming an opinion on the subject, they need not be admissible for the opinion to be admitted. But if the facts or data would otherwise be inadmissible, the proponent of the opinion may disclose them to the jury only if their probative value in helping the jury evaluate the opinion substantially outweighs their prejudicial effect.

Answer 286

• The facts or data, in the particular proceeding upon which an expert bases an opinion or inference may be those perceived by or made known to the expert at or before the hearing. If of a type reasonably relied upon by experts in the particular field in forming opinions or inferences upon the subject, such facts or data need not be admissible in evidence in order for the opinion or inference to be admitted. Such facts or data that are otherwise inadmissible 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.

Answer 287

• An opinion is not objectionable just because it embraces an ultimate issue. o Exception. In a criminal case, an expert witness must not state an opinion about whether the defendant did or did not have a mental state or condition that constitutes an element of the crime charged or of a defense. Those matters are for the trier of fact alone.

Answer 288

* Except as provided in subsection (b) of this Code section, 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. * No expert witness testifying with respect to the mental state or condition of an accused in a criminal proceeding shall state an opinion or inference as to whether the accused did or did not have the mental state or condition constitution an element of the crime charged or of a defense thereto. Such ultimate issues are matters for the trier of fact alone

Answer 289

* Under Georgia law, where (a) the path from evidence to conclusion is not shrouded in the mystery of professional skill or knowledge, and (b) the conclusion determines the ultimate issues of fact in a case, the jury must make the journey from evidence to conclusion without the aid of expert testimony. In general, expert testimony that a defendant does not have the psychological characteristics of a person who is predisposed to having sexual contact with underaged children invades the province of the jury as to the ultimate issue, that is, the defendant's guilt or innocence, and is properly excluded. We conclude that the trial court did not abuse its discretion in ruling that whether [Young] would have committed the crime[s] charged absent the inducement of law enforcement officers was a question the jury could and must be resolved without the assistance of expert opinion evidence and that [defendant’s expert witness, a psychiatrist] opinions on the subject were therefore inadmissible. * See, Harper v. State, this is why, in Georgia, criminal cases do not apply the Daubert standard. It provides the court with immense discretion to keep out possibly relevant scientific expert testimony.

Answer 290

* This is a toxic tort case involving product liability, negligence, and loss of consortium claims maintained by Laura Butler, individually and as administratrix of the estate of her late husband, Walter Butler, against Union Carbide Corporation and 16 other companies. The complaint alleges that Mr. Butler developed malignant mesothelioma due to his occupational exposure to products containing asbestos manufactured or sold by the defendants. * Upon motion of a party, the court may hold a pretrial hearing to determine whether the witness qualifies as an expert and whether the expert's testimony satisfies the requirements of subsections (a) and (b) of this Code section. . . . * Ordinarily, a key question to be answered in determining whether a theory or technique is scientific knowledge that will assist the trier of fact will be whether it can be (and has been) tested. “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.” Green 645. See also C. Hempel, Philosophy of Natural Science 49 (1966) (“[T]he statements constituting a scientific explanation must be capable of empirical test ”); K. Popper, Conjectures and Refutations: The Growth of Scientific Knowledge 37 (5th ed. 1989) (“[T]he criterion of the scientific status of a theory is its falsifiability, or refutability, or testability ”) (emphasis deleted). * Another pertinent consideration is whether the theory or technique has been subjected to peer review and publication. Publication (which is but one element of peer review) is not a sine qua non of admissibility ; it does not necessarily correlate with reliability, see S. Jasanoff, The Fifth Branch: Science Advisors as Policymakers 61–76 (1990), and in some instances well-grounded but innovative theories will not have been published, see Horrobin, The Philosophical Basis of Peer Review and the Suppression of Innovation, 263 JAMA 1438 (1990). Some propositions, moreover, are too particular, too new, or of too limited interest to be published. But submission to the scrutiny of the scientific community is a component of “good science,” in part because it increases the likelihood that substantive flaws in methodology will be detected. See J. Ziman, Reliable Knowledge: An Exploration of the Grounds for Belief in Science 130–133 (1978); Relman & Angell, How Good Is Peer Review?, 321 New Eng.J.Med. 827 (1989). The fact of publication (or lack thereof) in a peer reviewed journal thus will be a relevant, though not dispositive, consideration in assessing the scientific validity of a particular technique or methodology on which an opinion is premised. * Additionally, in the case of a particular scientific technique, the court ordinarily should consider the known or potential rate of error, and the existence and maintenance of standards controlling the technique's operation. * Finally, “general acceptance ” can yet have a bearing on the inquiry. A “reliability assessment does not require, although it does permit, explicit identification of a relevant scientific community and an express determination of a particular degree of acceptance within that community.” Widespread acceptance can be an important factor in ruling particular evidence admissible, and “a known technique which has been able to attract only minimal support within the community,” may properly be viewed with skepticism.

Answer 291

• Unless the court orders otherwise, an expert may state an opinion — and give the reasons for it — without first testifying to the underlying facts or data. But the expert may be required to disclose those facts or data on cross-examination.

Answer 292

* An expert may testify in terms of opinions or inference and give reasons therefor without first testifying to the underlying facts or data, unless the court requires otherwise. An expert may in any event be required to disclose the underlying facts or data on cross-examination. * The issue of the admissibility or exclusion of expert testimony rests in the broad discretion of the trial court, and consequently, the trial court's ruling thereon cannot be reversed on appeal absent an abuse of discretion. * “The burden of laying the proper foundation for the admission of the expert testimony is on the party offering the expert, and admissibility must be shown by a preponderance of the evidence. * It is within the trial court's discretion to apply the Daubert factors with greater rigor. * Trial court's gatekeeper role under Daubert is not intended to supplant the adversary system or the role of the jury; quite the contrary, vigorous cross-examination, presentation of contrary evidence, and careful instruction on the burden of proof are the traditional and appropriate means of attacking shaky but admissible evidence. * A review of the case law after the Daubert decision shows that the rejection of expert testimony is the exception rather than the rule. The Daubert Trilogy did not work a “seachange” over federal evidence law, and the “the trial court’s role as the gatekeeper is not intended to serve as a replacement for the adversary system. * As the Court in Daubert stated: “Vigorous cross-examination, presentation of contrary evidence, and careful instruction on the burden of proof are the traditional and appropriate means of attacking shaky but admissible evidence”

Answer 293

* Constitutional scholars typically fix “the modern period of American constitutional law to be the period since Brown v. Board of Education. This case also marks the modern era of the Court’s explicit use of scientific research in constitutional law. In Brown, the curt was asked to interpret the scope of the fourteenth Amendment’s guarantee of ‘equal protection’ in the context of racial segregation in public schools. The Court, in declaring segregation in public schools as unconstitutional, cited a series of studies conducted by Dr. Kenneth Clark and others to support its finding that segregation of blacks may affect their hearts and minds in a way unlikely ever to be undone. * The Court noted in its opinion that: “These are facts, not law . . .Whether Negroes in Kansas believed that separate schooling denoted inferiority, whether a sense of inferiority affected their motivation to learn and whether motivation to learn were increased or diminished by segregation was a question requiring evidence for decision. That was as much a subject for scientific inquiry as the braking distance required to stop a two-ton truck moving at ten miles an hour on dry concrete.”

Answer 294

Frye v. United States • General Acceptance Test Harper v. State • Laws of Nature

Answer 295

• Except as provided in Code Section 22--1-14 and in subsection (g) of this Code section, the provisions of this Code section shall apply in all civil proceedings. The opinion of a witness qualified as an expert under this Code section may be given on the facts as proved by other witnesses. • If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education may testify thereto in the form of an opinion or otherwise, if: o The testimony is based upon sufficient facts or data; o The testimony is the product of reliable principles and methods; and o The witness has applied the principles and methods reliably to the facts of the case which have been or will be admitted into evidence before the trier of fact. • Notwithstanding the provisions of subsection (b) of this Code section and any other provision of law which might be construed to the contrary, in professional malpractice actions, the opinions of an expert, who is otherwise qualified as to the acceptable standard of conduct of the professional whose conduct is at issue, shall be admissible only if, at the time the act or omission is alleged to have occurred, such expert: o Was licensed by an appropriate regulatory agency to practice his or her profession in the state in which such expert was practicing or teaching in the profession at such time; and o In the case of a medical malpractice action, had actual professional knowledge and experience in the area of practice or specialty in which the opinion is to be given as the result of having been regularly engaged in:  The active practice of such area of specialty of his or her profession for at least three of the last five years, with sufficient frequency to establish an appropriate level of knowledge, as determined by the judge, in performing the procedure, diagnosing the condition, or rendering the treatment which is alleged to have been performed or rendered negligently by the defendant whose conduct is at issue; or  The teaching of his or her profession for at least three of the last five years as an employed member of the faculty of an educational institution accredited in the teaching of such profession, with sufficient frequency to establish an appropriate level of knowledge, as determined by the judge, in teaching others how to perform the procedure, diagnose the condition, or render the treatment which is alleged to have been performed or rendered negligently by the defendant whose conduct is at issue; and  Except as provided in subparagraph (D) of this paragraph: • Is a member of the same profession; • Is a medical doctor testifying as to the standard of care of a defendant who is a doctor of osteopathy; or • Is a doctor of osteopathy testifying as to the standard of care of a defendant who is a medical doctor; and o Notwithstanding any other provision of this Code section, an expert who is a physician and, as a result of having, during at least three of the last five years immediately preceding the time the act or omission is alleged to have occurred, supervised, taught, or instructed nurses, nurse practitioners, certified registered nurse anesthetists, nurse midwives, physician assistants, physical therapists, occupational therapists, or medical support staff, has knowledge of the standard of care of that health care provider under the circumstances at issue shall be competent to testify as to the standard of that health care provider. However, a nurse, nurse practitioner, certified registered nurse anesthetist, nurse midwife, physician assistant, physical therapist, occupational therapist, or medical support staff shall not be competent to testify as to the standard of care of a physician. • Upon motion of a party, the court may hold a pretrial hearing to determine whether the witness qualifies as an expert and whether the expert's testimony satisfies the requirements of subsections (a) and (b) of this Code section. Such hearing and ruling shall be completed no later than the final pretrial conference contemplated under Code Section 9-11-16. • An affiant shall meet the requirements of this Code section in order to be deemed qualified to testify as an expert by means of the affidavit required under Code Section 9-11-9.1. • It is the intent of the legislature that, in all civil proceedings, the courts of the State of Georgia not be viewed as open to expert evidence that would not be admissible in other states. Therefore, in interpreting and applying this Code section, the courts of this state may draw from the opinions of the United States Supreme Court in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993); General Electric Co. v. Joiner, 522 U.S. 136 (1997); Kumho Tire Co. Ltd. v. Carmichael, 526 U.S. 137 (1999); and other cases in federal courts applying the standards announced by the United States Supreme Court in these cases.

Answer 296

* The defendant, in this criminal case, asserted “that the trial court erred when it allowed the improper admission of expert testimony on the issue of DNA testing. He contends that the trial court should have applied the evidentiary standard adopted by the General Assembly for civil cases under the Georgia Tort Reform Act, OCGA § 24-9-67.1. This standard was taken from the federal standard announced in Daubert v. Merrell Dow Pharmaceuticals, 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993). The defendant contends that the disparity in evidentiary standards for criminal cases under Georgia versus federal law violates the equal protection rights secured by both the Georgia and United States Constitutions. * The Georgia Supreme Court held that “[I]n light of the long-standing history of Harper and its progeny, which existed when the legislature enacted the Daubert test in OCGA § 24-9-67.1 as a part of Georgia's Tort Reform Act, we do not conclude that the legislature intended to abandon the Harper evidentiary test in criminal cases. Indeed, the almost verbatim re-enactment of the old OCGA § 24-9-67 as new OCGA § 24-9-67 would seem to affirm Georgia's traditional reliance upon Harper in criminal matters, and we expressly hold that new OCGA § 24-9-67, and neither Daubert nor OCGA § 24-9-67.1 controls the admission of evidence in criminal proceedings.

Answer 297

• Standards for admissibility of scientific evidence • The Daubert decision discussed four factors to be used to determine if scientific evidence is valid and admissible. Testing; • The court required that the theory or procedure be testable since testability is the hallmark of a scientific method. Unscientific methods proffered by proponents of junk science frequently are untestable; either a positive or negative result will support the expert’s opinion. Scientific methods involve hypotheses which can be falsified or refuted; if the method or theory cannot be refuted it is unscientific. o Are there standards which govern the testing and application of the method and if so were those standards met? Peer review; • The Court also required trial courts to look at whether the theory or method had been subjected to and passed the peer review process since the peer review process is a component of good science which reduces the likelihood that the method will have undetected flaws. Peer review does not ensure a valid and reliable method, nor does the absence of peer review render it inadmissible. Again, it is only a factor to be considered. Error rates; and • Even if a theory or method is testable, it may have such a high error rate as to not make it a terribly reliable method. For example, in theory it is possible to measure the speed of cars with a meter stick and a wrist watch; in practice, the method is likely to be so unreliable that no court would admit it into evidence. Standards • Do standards exist for the control of the technique's operation? One critical aspect of whether a theory or technique is whether or not there is the existence and maintenance of standards. Is there a recognized body of experts who enforce and insist upon the use of specified training procedures and insist upon the existence procedures and methods which help to insure a consistent and reliable process by which the theory or method is applied. Acceptability in the relevant scientific community. • General Acceptance • Although the court reject "general acceptance" as the sole criteria governing admissibility, the court did acknowledge that it is a fact to be considered by trial courts. Where novel scientific evidence is at issue, inquiry allows the judiciary to defer to scientific expertise precisely as to whether or not it has the scientific method or theory gained “general acceptance” in the relevant field.

Answer 298

• Standard of appellate review of court’s decision to admit or deny admission is the “Abuse of Discretion Standard.”

Answer 299

• Scope of application of Daubert to “experts” and scientific evidence

Answer 300

* The expression junk science is used to describe scientific data, research, or analysis considered by the person using the phrase to be spurious or fraudulent. ... It usually conveys a pejorative connotation that the research has been untowardly driven by political, ideological, financial, or otherwise unscientific motives. * This is a term used in U.S. political and legal disputes that brands an advocate’s claims about scientific data, research, analyses as spurious. The term generally conveys a pejorative connotation that the advocate is driven by political, ideological, financial, and other unscientific motives.

Answer 301

a. Testing b. Standards c. Peer Review d. Error Rates e. Acceptance in Relevant Scientific Community

Answer 302

ABA Model Rules of Professional Conduct, 3.4, Comment • “With regard to paragraph (b), it is not improper to pay a witness's expenses or to compensate an expert witness on terms permitted by law. The common law rule in most jurisdictions is that it is improper to pay an occurrence witness any fee for testifying and that it is improper to pay an expert witness a contingent fee.”

Answer 303

* A contingent fee contract with an expert witness is unethical. * “By Kent's own testimony, he intended to pay White had he won the case but instead lost; therefore, he did not pay. Kent's conduct was within OCGA § 51-12-5 .1(b) but just barely. The jury found Kent's conduct to constitute deceit, but if Kent's testimony was true, then he had a contingent fee contract with an expert witness to testify, which is unethical but not deceit.”

Answer 304

• A plethora of authority supports defendants' position that striking the report is an acceptable response to punish the impropriety of entering into a contingency fee arrangement with an expert witness. Agreement violated California Rules of Professional Conduct which prohibit an attorney from testifying and receiving payment contingent on the outcome of the case; expert precluded from testifying); Improper to pay an expert witness a contingent fee” under Maryland law; Proceedings tainted by contingency fee agreement; expert precluded from testifying; given 60 days to obtain new expert.

Answer 305

* Upon motion of a party, the court may hold a pretrial hearing to determine whether the witness qualifies as an expert and whether the expert's testimony satisfies the requirements of subsections (a) and (b) of this Code section. . . . * Ordinarily, a key question to be answered in determining whether a theory or technique is scientific knowledge that will assist the trier of fact will be whether it can be (and has been) tested. “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.” Green 645. See also C. Hempel, Philosophy of Natural Science 49 (1966) (“[T]he statements constituting a scientific explanation must be capable of empirical test ”); K. Popper, Conjectures and Refutations: The Growth of Scientific Knowledge 37 (5th ed. 1989) “[T]he criterion of the scientific status of a theory is its falsifiability, or refutability, or testability” (emphasis deleted). * Another pertinent consideration is whether the theory or technique has been subjected to peer review and publication. Publication (which is but one element of peer review) is not a sine qua non of admissibility; it does not necessarily correlate with reliability, see S. Jasanoff, * Additionally, in the case of a particular scientific technique, the court ordinarily should consider the known or potential rate of error, and the existence and maintenance of standards controlling the technique's operation. * Finally, “general acceptance” can yet have a bearing on the inquiry. A “reliability assessment does not require, although it does permit, explicit identification of a relevant scientific community and an express determination of a particular degree of acceptance within that community.” Widespread acceptance can be an important factor in ruling particular evidence admissible, and “a known technique which has been able to attract only minimal support within the community,” may properly be viewed with skepticism

Answer 306

• A Consulting Expert o Someone who has been retained or specifically employed to assist in the preparation of litigation. o Sometimes referred to as a teaching expert. • A Testimonial Expert o Someone retained for purposes of testifying at trial. • Lay Person as an Expert o Common sense and life long experience • Technician/examiner o Someone with limited and/or concentrated training, applies known techniques, works in a system and taught with the system [e.g. investigator and supervisors]; operator of breath chemical testing equipment, fingerprint technician, phlebotomist, etc. • Practitioner o Someone who interprets material and information and analyzes • Specialist o Someone devoted to one kind of study or work • Scientist o Conducts original empirical research, then experiments to verify the validity of the theory, designs and creates instrumentation and applied techniques; publishes scholarly peer review literature in his or her field and advances his field of knowledge.

Answer 307

• Preliminary questions of admissibility of evidence are answered by the court.

Answer 308

• Whether a witness is qualified to give his opinion as an expert is a question for the trial court, which determination will not be disturbed on appeal absent manifest abuse. (Abuse of Discretion Standard). FRE 401 • Defines what is relevant evidence. FRE 402 • All relevant evidence is admissible. FRE 403 • Even relevant evidence can be excluded. FRE 601 • Every person is considered to competent to be a witness. • This presumption may be rebutted. FRE 602 • A non-expert witness must have personal knowledge. • An expert witness may testify as to matters about which he or she does not have personal knowledge. FRE 701 • Lay witnesses may give an opinion based upon personal perceptions. FRE 701 • A person may qualify as an expert based on knowledge, skill, experience, training or education. FRE 703 • Experts may give an opinion based on the perceptions of others made known to the expert. FRE 704 • Experts may testify to ultimate issues. Ga. Code Ann., §24-7-704 • Except as provided in subsection (b) of this Code section, 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. • No expert witness testifying with respect to the mental state or condition of an accused in a criminal proceeding shall state an opinion or inference as to whether the accused did or did not have the mental state or condition constituting an element of the crime charged or of a defense thereto. Such ultimate issues are matters for the trier of fact alone.

Answer 309

* At trial, Appellant objected to the fire marshal's testimony only on the ground that it impermissibly went to the ultimate issue for the arson charge in the case; he raises the same objection on appeal. After being qualified as an expert witness, the marshal testified based on his observations and experience that the fire at the Walkers' residence was intentionally set. This testimony did not invade the province of the jury in deciding whether Appellant had committed arson, because the testimony did not address other elements of the crime of arson or directly implicate Appellant as the perpetrator of that crime. * The factual conclusion that the fire was set by a human, rather than accidentally, is a far cry from the legal conclusion that the appellant here was criminally responsible for arson.”). Moreover, the conclusion that the fire was intentionally set was not one jurors would ordinarily be able to draw for themselves.

Answer 310

* An expert witness is someone who performs two primary functions: * The scientific function — collecting, testing, and evaluating evidence and forming an opinion as to that evidence; and * The forensic function — communicating that opinion and its basis to the judge and jury. A general rule of evidence is that witnesses may only testify to what they have personally observed or encountered through their five senses

Answer 311

• An expert may base an opinion on facts or data in the case that the expert has been made aware of or personally observed. If experts in the particular field would reasonable rely on those kinds of facts or data in forming an opinion on the subject, they need not be admissible for the opinion to be admitted. But if the facts or data would otherwise be inadmissible, the proponent of the opinion may disclose them to the jury only if their probative value in helping the jury evaluate the opinion substantially outweighs their prejudicial effect.

Answer 312

• The court of appeals has generally admitted the opinion testimony of experts on ultimate issues when that testimony relates to professional, scientific, or highly technical matters.

Answer 313

• Unless the court orders otherwise, an expert may state an opinion-and give the reasons for it-without first testifying to the underlying facts or data. But the expert may be required to disclose those facts or data on cross-examination.

Answer 314

* An expert must be qualified to give the opinion offered. Experts are those who through education, training, or experience have particular knowledge concerning some matter of science, skill, trade, or profession to which their testimony relates. * The trial court determines, as a matter of law after hearing evidence, whether a witness is competent by way of qualifications to render an opinion within [his or her] area of expertise. * The possession of a license in Georgia does not go to qualification as an expert witness but may go to the weight and credibility that a jury gives to such expert's opinion.

Answer 315

• The extent of an expert’s ability to testify to matters outside the scope of training and expertise.

Answer 316

• The admission of expert testimony under the Federal Rules of Evidence is part of a trial judge’s gatekeeping responsibility to “ensur[e] that an expert's testimony rests on a reliable foundation and is relevant to the task at hand.”

Answer 317

* “It was reversible error for the trial court to refuse to require disclosure of the underlying facts or data upon which the opinions of the defendant's experts were based prior to the giving of the opinions, or once having allowed the opinions, refusing to strike the opinions when it was disclosed that the facts or data was not of that type reasonably relied upon by experts in the field.” * Ordinarily, it is within the sound discretion of the trial court whether voir dire of a witness will be allowed, or whether counsel must wait until cross-examination to attack the credibility of an expert witness.

Answer 318

• Competent evidence about [the subject’s] mental condition and mental ability or lack of it which does not involve legal definitions, legal tests, or pure questions of law should be admitted.

Answer 319

• In Georgia, the credibility of a witness is to be determined by the jury, and the credibility of a victim may not be bolstered by the testimony of another witness. Thus, a witness may not give an opinion as to whether the victim is telling the truth

Answer 320

• “In all criminal prosecutions, the accused shall enjoy the right. . . to be confronted with the witnesses against him;. . .”

Answer 321

• “Every person charged with an offense against the laws of this state shall . . .be confronted with the witnesses testifying against such person.”

Answer 322

• “No person shall be . . . be deprived of life, liberty, or property, without due process of law;. . .”

Answer 323

• “. . . [n]or shall any State deprive any person of life, liberty, or property, without due process of law;. . .”

Answer 324

* Use of Affidavits ( hearsay evidence) to Convict Individuals of Crimes * Sir Walter Raleigh’s Conviction for Treason in 1603 * Affidavit of Lord Corbham * Ex Parte Depositions of Witnesses

Answer 325

Evidence is relevant if: • it has any tendency to make a fact more or less probable than it would be without the evidence; and • the fact is of consequence in determining the action.

Answer 326

• Relevant evidence is admissible unless any of the following provides otherwise: o the United States Constitution; o a federal statute; o these rules; or o other rules prescribed by the Supreme Court. Irrelevant evidence is not admissible.

Answer 327

* Statement. “Statement” means a person’s (1) oral assertion, (2) written assertion, or (3)nonverbal conduct, if the person intended it as an assertion. * “The definition of ‘statement’ assumes importance because the term I used in the definition of hearsay in subdivision (c). The effect of the definition of ‘statement’ is to exclude from the operation of the hearsay rule all evidence of conduct, verbal or nonverbal, not intended as an assertion. The key to the definition is that nothing is an assertion unless intended to be one. * When evidence of conduct is offered on the theory that it is not a statement and hence not hearsay, a preliminary determination will be required to determine whether an assertion is intended. The rule is so worded as to place the burden upon the party claiming that the intention existed; ambiguous and doubtful cases will be resolved against him and in favor of admissibility. The determination involves no greater difficulty than many other preliminary questions of fact.

Answer 328

* The court must decide any preliminary question about whether a witness is qualified, a privilege exists, or evidence is admissible. In so deciding, the court is not bound by evidence rules, except those on privilege. * When the relevance of evidence depends on whether a fact exists, proof must be introduced sufficient to support a finding that the fact does exist. The court may admit the proposed evidence on the condition that the proof be introduced later.

Answer 329

• Declarant means the person who made the statement.

Answer 330

• Hearsay means a statement that: o The declarant does not make while testifying at the current trial or hearing; and o Testimony during a hearing or trial is not hearsay unless the witness tries to repeat something someone else said or wrote. In addition, a statement introduced to prove something other than its truth is not hearsay. o A party offers in evidence to prove the truth of the matter asserted in the statement. o In addition, a statement introduced to prove something other than its truth is not hearsay. For example, testimony may be offered to show the speaker's state of mind.  Example: Dana and Bruce were fighting, and Dana shouted "Bruce, you are a lousy bastard." Marla heard the argument and was asked to testify at Dana and Bruce's divorce trial. Marla was permitted to repeat the statement "Bruce, you are a lousy bastard," because it is not hearsay. It was not introduced at the trial to prove the issues at trial, but rather to show that Dana was angry at Bruce.

Answer 331

* An oral or written assertion; or | * Nonverbal conduct of a person, if it is intended by the person as an assertion.

Answer 332

• a person who makes a statement.

Answer 333

“Hearsay” shall be subject to the following exclusions and conditions: • Prior statement by witness. • An out-of-court statement shall not be hearsay if the declarant testifies at the trial or hearing, is subject to cross-examination concerning the statement, and the statement is admissible as a prior inconsistent statement or a prior consistent statement under Code Section 24-6-613 or is otherwise admissible under this chapter. • If a hearsay statement is admitted and the declarant does not testify at the trial or hearing, other out-of-court statements of the declarant shall be admissible for the limited use of impeaching or rehabilitating the credibility of the declarant, and not as substantive evidence, if the other statements qualify as prior inconsistent statements or prior consistent statements under Code Section 24-6-613. • A statement shall not be hearsay if the declarant testifies at the trial or hearing and is subject to cross-examination concerning the statement, and the statement is one of identification of a person made after perceiving the person; and • Admissions by party-opponent. Admissions shall not be excluded by the hearsay rule. An admission is a statement offered against a party which is: • The party's own statement, in either an individual or representative capacity; • A statement of which the party has manifested an adoption or belief in its truth; • A statement by a person authorized by the party to make a statement concerning the subject; • 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; or • 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.

Answer 334

* In Georgia, hearsay is generally not allowed as evidence and is defined as “a statement, other than the one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.” * However, statements made by the opposing party are deemed admissions which are not excluded by the rule. * [e]vidence of other crimes, wrongs, or acts shall not be admissible to prove the character of a person in order to show action in conformity therewith. * [evidence of other crimes, wrongs, or acts] “may, however, be admissible for other purposes, including, but not limited to, proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.”

Answer 335

• Hearsay is not admissible unless any of the following provides otherwise: o A federal statute; o These rules; or o Other rules prescribed by the Supreme Court.

Answer 336

• 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.

Answer 337

• Out-of-court conduct which is intended as an assertion may be a hearsay statement. Thus, an act may amount to an expression of feeling.

Answer 338

• “Hearsay,” is that kind of statement which does not admit of testing by cross-examination, unless within some recognized exception.

Answer 339

* Hearsay statements cannot be tested by cross-examination of the declarant. * Narrative * Perception (what is the actual perception of the declarant) * Memory (how do you test declarant’s memory) * Sincerity (usually covered by the taking of an oath)

Answer 340

• Silence can be a form of assertive conduct

Answer 341

• Case gives an example of testimony which was not hearsay because it was not offered for the purpose of proving that the tires were slick, but rather for the purpose of showing notice of the tire’s conditions.

Answer 342

* Fainting when confronted with negative facts | * Non-assertive conduct was not objectionable hearsay

Answer 343

• Hearsay testimony was not applicable to the Confrontation Clause and the Federal Rules of Evidence in a probation revocation proceeding.

Answer 344

• While it is generally true that if an animal looks like a duck and quacks like a duck, it’s a duck, when it comes to hearsay statements, this isn’t necessarily so. A statement can look like hearsay, sound like hearsay and still not be hearsay at all. Several general types of statements would appear to fall squarely within the definition of hearsay provided in FRE 801 and Ga. Code Ann., §24-8-801, but simply aren’t. • The following are certain categories of statements which are not hearsay statements even though they appear to meet the general definition of a hearsay statement: o Statements made by machines; o Computer-generated data automatically appearing on the screen of the telephone do “not constitute out-of-court statements by any person or ‘the conclusion of a third party not before the court.’

Answer 345

o Prior inconsistent statements;\ o Any witness may be impeached by showing that on a prior occasion he made a material statement inconsistent with his trial testimony. Such a statement can be taken from many sources – from formal, sworn statements made in prior testimony, affidavits or discovery responses, to casual remarks made by a witness to a bartender at the local pub. With regard to the latter, because it is unsworn, this statement can only be used to attack the credibility of the witness, and may not be received as evidence to prove the truth of the matter asserted by the witness on the prior occasion. (In such situations, the attorney resisting the admission of the prior statement should request that the court give a limiting instruction to the jury that the statement can be considered for impeachment purposes only.) o Prior consistent statements offered to rebut a charge of recent fabrication, improper influence or motive; o Bolstering a witness by attempting to elicit prior consistent statements is generally not permitted. However, while a witness’s prior consistent statements would normally be inadmissible hearsay, the rules categorizes certain prior consistent statements as non-hearsay. Under FRE 801, the admissibility of prior consistent statements is restricted to use in rebutting an express or implied charge of either recent fabrication or improper influence or motive. Absent such an allegation, either express or implied, a prior consistent statement remains inadmissible as hearsay. o If admissible, then the prior consistent statement may be used to both rebut the charge levied and to prove the truth of the matter asserted in the prior statement. However, the statement must have been made before the charged recent fabrication, improper influence or motive arose in order to fall within the ambit of FRE 801 o Prior statements of identification of a person made after perceiving the person; o Admissions by a party opponent; and o Depositions taken in the same proceeding. o These statements (listed above as 1 through 6) are not hearsay exceptions, but rather statements which are not considered hearsay to begin with. When responding to a hearsay objection lodged against these types of statements, the proper response is not that the statement falls within an exception to hearsay. The appropriate response is that these statements are not, by rule, hearsay at all

Answer 346

• “In all criminal prosecutions, the accused shall enjoy the right . . . [and] to be confronted with the witnesses against him; . . .”

Answer 347

• “Every person charged with an offense against the laws of this state . . . [s]hall be confronted with the witnesses testifying against such person.

Answer 348

* A statement means an oral or written assertion, or nonverbal conduct of a person, if it is intended by the person as an assertion. * A declarant means a person who makes a statement, written assertion or nonverbal conduct, if that conduct is intended by that person as an assertion.

Answer 349

* The defendant (Clark) complained that it was error for the court to allow Sergeant Tabler to testify that when he (the sergeant) asked Clark if he had a jacket with a fur-lined collar, Clark turned to his wife and stated, ‘I don't have one like that, do I dear,’ and his wife fainted. * The reaction of Clark's wife to this question was relevant to prove that defendant owned a coat with a fur-lined collar and that he had worn it on the night of the murder. * The testimony of the sergeant about the Clark’s wife fainting was admissible and was not hearsay because her fainting was non-voluntary and was therefore non-assertive conduct. * Hearsay means a statement, other than one made by the declarant while testifying at trial or hearing, offered in evidence to prove the truth of the matter asserted.

Answer 350

i. a federal statute; ii. these rules; or iii. other rules prescribed by the Supreme Court.

Answer 351

* Error shall not be predicated upon a ruling which admits or excludes evidence unless a substantial right of the party is affected and: * In case the ruling one admitting evidence, a timely objection or motion to strike appears of record, stating the specific ground of objection, if the specific ground was not apparent from the context; or * In case the ruling is one excluding evidence, the substance of the evidence was made known to the court by an offer of proof or was apparent from the context within which questions were asked. * The hearsay rule is probably the evidence rule least understood by trial lawyers and judges. Called ‘bizarre,’ a ‘crazy quilt,’ and an ‘unintelligible thicket,’ its complexities have long confounded scholars, courts, and lawyers on several continents. * Georgia has not escaped this confusion. For over 150 years, Georgia struggled with a 19th century definition of hearsay that included such arcane concepts as ‘original evidence’ and ‘res gestae.’ With the adoption of the new 2013 Georgia evidence code, Georgia joined most of the rest of the nation with a common definition of hearsay and a clear, accessible list of exceptions. * The early development of the hearsay rule was motivated, in large part, by a strong preference for live, in-court testimony, and the constitutional right to confront the witnesses and evidence presented against a party. * The treason trial of Sir Walter Raleigh is cited by Justice Scalia in his Crawford opinion) as one of the major historical events that was known to the Framers and that influenced their fashioning of the Confrontation Clause. In telling of this event, Justice Scalia emphasizes the admission of certain hearsay that fits his testimonial model. In the Raleigh story, there are “testimonial statements,” as Justice Scalia characterizes them that might well have concerned the Framers. Justice Scalia cites the use of a letter by Lord Cobham as proof not only of the Framers' concern, but also of the specific construction that should be given to the Confrontation Clause.

Answer 352

• Before the Federal Rules of Evidence were adopted there were two different views as to the admissibility of hearsay evidence. • Majority View o An out-of-court statement may not be offered to show the truth of the matters asserted therein, but can be introduced under appropriate limiting instructions to impeach the credibility of the witness who has changed his story at trial. • Minority View o An out-of-court statement is permitted as substantive evidence the theory that the usual dangers of hearsay are largely nonexistent where the witness testifies at trial. o The whole purpose of the Hearsay rule has been already satisfied because the witness is present and subject to cross-examination and there is ample opportunity to test him as to the basis for his former statement. o The concept of having the ability to confront out-of-court statements is aimed at insuring the reliability of the out-of-court statement. Confrontation provides that o that the witness will give his statements under oath-thus impressing him with the seriousness of the matter and guarding against the lie by the possibility of a penalty for perjury; o forces the witness to submit to cross-examination, the ‘greatest legal engine ever invented for the discovery of truth’; o permits the jury that is to decide the defendant's fate to observe the demeanor of the witness in making his statement, thus aiding the jury in assessing his credibility.

Answer 353

* The Supreme Court, relying on Green, held that all that the Sixth Amendment demands is substantial compliance with the purposes behind the confrontation requirement. * The Court held that as long as the out-of-court statement had an “indicia of reliability” it would be admissible. * In other words, the Confrontation Clause of the Constitution was satisfied if the out-of-court statement met one or two tests: * The out-of-court statement was admitted pursuant to a “firmly rooted hearsay exception” or, * The out-of-court statement had particularized guarantees of trustworthiness or an indicia of reliability

Answer 354

* Justice Scalia (and therefore Justice Thomas) held that The Confrontation Clause bars “admission of testimonial statements of a witness who did not appear at trial unless he was unavailable to testify, and the defendant had a prior opportunity for cross-examination. Thus the Court overruled Ohio v. Roberts. * Justice Scalia writing for the majority of the Court held that the Confrontation clause guards against the use of formal, but not sworn testimony. * The type of testimony that was used to convict Sir Walter Raleigh. * If the statement is testimonial in that same sense, it is barred by the Confrontation clause unless the declarant is unavailable and was subject to cross-examination at the time of the statement. * Justice Scalia (and therefore Justice Thomas) did not define the difference between testimonial and non-testimonial statements.

Answer 355

* The determination of whether the recording of a 911 phone call is testimonial should be made on a case-by-case basis. * Where the primary purpose of the telephone call is to establish evidentiary facts, so that an objective person would recognize that the statement would be used in a future prosecution, then that phone call “bears testimony” against the accused and implicates the concerns of the Confrontation Clause.

Answer 356

* The trial court admitted the husband's first two 911 calls on the ground that they were made during the ongoing emergency created by Danley's attack on the victim and were thus non-testimonial and admissible, and Danley does not challenge this decision on appeal. Although Danley sought the admission of the sheriff's return call because the husband stated in it that Danley had punched the victim unintentionally, the court excluded this call on the ground that by the time that call was placed, Danley had left the property and the emergency had ended. Accordingly, the conversation was testimonial and, as the husband was deceased at the time of trial and unavailable to testify, inadmissible hearsay. * The record supports both the trial court's factual determination that by the time the third call was placed by the sheriff's department to the victim's husband, any “ongoing emergency” posed by Danley to the victims was over and its legal conclusion that, in light of the husband's death, the call was hearsay and its admission would have been erroneous.

Answer 357

* Only statements which are deemed to be “testimonial” cause the declarant to be a witness within the meaning of the Confrontation Clause. * Only those statements made to law enforcement personnel during a 911 call or at a crime scene which are “testimonial” are subject to the requirements of the Sixth Amendment’s Confrontation Clause. * If the statements are made or elicited as part of an ongoing effort to determine the emergency assistance needed, the statements are not testimonial. * If the statements were elicited for the primary purpose of investigating a possible crime, the statements are testimonial.

Answer 358

• A defendant forfeits his right under the Confrontation Clause "to confront a witness against him when a judge determines that a wrongful act by the defendant made the witness unavailable to testify at trial."

Answer 359

• The Sixth Amendment contemplates two types of witnesses in criminal prosecutions • Those who give testimony against the defendant. • Those who give testimony in favor of the defendant. • The prosecution must produce the former; the defendant may call the latter. • There is not a third category of witnesses, helpful to the prosecution, but somehow immune from confrontation. • Forensic evidence is not uniquely immune from the risk of manipulation. According to a recent study conducted under the auspices of the National Academy of Sciences, • “[t]he majority of [laboratories producing forensic evidence] are administered by law enforcement agencies, such as police departments, where the laboratory administrator reports to the head of the agency.” • Confrontation is one means of assuring accurate forensic analysis. • Confrontation is designed to weed out not only the fraudulent analyst, but the incompetent one as well. Serious deficiencies have been found in the forensic evidence used in criminal trials. • “drylabbing” o Where forensic analysts report results of tests that were never performed

Answer 360

* Without the opportunity to cross-examine the declarant, the defendant was unable "to test the truth of the statement itself." The Georgia Supreme Court has endorsed the rationale that the introduction of a co-conspirator's hearsay confession to show the defendant's involvement in the crimes violates a defendant's constitutional right to confrontation. * The hearsay testimony recounting the confessions of the purported co-conspirators who did not testify was erroneously admitted in Livingston's trial. * "[t]he confession of one joint offender or conspirator made after the enterprise is ended shall be admissible only against himself."

Answer 361

• Admissions shall NOT be excluded by the hearsay rule. An admission is a statement offered against a party which is:

Answer 362

• 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.

Answer 363

• Statement made to police by one of two codefendants, following their arrest, attributing defendant's unconscious state to the fact that he was having marital problems and had been drinking or smoking the entire night was inadmissible, in prosecution for unlawful possession of methamphetamine; statement was made after declarant was arrested, meaning after the conspiracy was terminated, rendering the statement admissible only against declarant codefendant.

Answer 364

* The [C]onfrontation [C]lause imposes an absolute bar to admitting out-of-court statements in evidence when they are testimonial in nature, and when the defendant does not have an opportunity to cross-examine the declarant. ... [S]tatements made to police officers during an investigation qualify as testimonial. * admission of evidence in violation of confrontation right can be harmless error where evidence at issue is cumulative

Answer 365

* The Court’s decision in Crawford v. Washington, 541 U. S. 36, held that the Confrontation Clause generally prohibits the introduction of “testimonial” statements by a nontestifying witness, unless the witness is “unavailable to testify, and the defendant had had a prior opportunity for cross-examination.” A statement qualifies as testimonial if the “primary purpose” of the conversation was to “creat[e] an out-of-court substitute for trial testimony.” In making that “primary purpose” determination, courts must consider “all of the relevant circumstances.” “Where no such primary purpose exists, the admissibility of a statement is the concern of state and federal rules of evidence, not the Confrontation Clause.” * But that does not mean that the Confrontation Clause bars every statement that satisfies the “primary purpose” test. The Court has recognized that the Confrontation Clause does not prohibit the introduction of out-of-court statements that would have been admissible in a criminal case at the time of the founding. * Mandatory reporting obligations do not convert a conversation between a concerned teacher and her student into a law enforcement mission aimed at gathering evidence for prosecution. It is irrelevant that the teachers’ questions and their duty to report the matter had the natural tendency to result in Clark’s prosecution. And this Court’s Confrontation Clause decisions do not determine whether a statement is testimonial by examining whether a jury would view the statement as the equivalent of in-court testimony. Instead, the test is whether a statement was given with the “primary purpose of creating an out-of-court substitute for trial testimony.” * Thus, the primary purpose test is a necessary, but not always sufficient, condition for the exclusion of out-of-court statements under the Confrontation Clause.

Answer 366

• The declarant testifies and is subject to cross-examination about prior statements and the statement o Is inconsistent with declarant’s testimony… (Impeachment o Is consistent with declarant’s testimony and is offered to rebut charge that the declarant fabricated the statement. (Rehabilitation) o Is identifying a person as someone the declarant perceived earlier (line up) • The statement is offered against an opposing party and: • And was made by the party in an individual or representative capacity • Is one the party adopted • Is one made by party’s agent or employee • Is one made during a conspiracy by a co-conspirator

Answer 367

Follow these steps: Step One • Ask the question: “Is this an out-of-court statement made by someone who is not the witness on the stand?*” o *Statement might be (a) oral or (b) written, or (c) conduct intended as a substitute for words. • If it is either of these, then go to Step Two. Step Two • Ask the Question: What is the statement, writing or conduct being offered to prove? o This is usually determined by the context of the question eliciting the statement. o If the statement, writing or conduct is being offered as relevant evidence*, then you should go to Step Three. o *Remember the definition of relevant evidence Step Three • Ask the question: Is the statement’s probative value dependent on the credibility of the person making the statement? • If the statement is only being offered to show that the declarant made the statement or exhibited the conduct then stop your analysis right there! • If that is the purpose then the statement or description of the conduct is not hearsay and you need not go any further! • However, if the statement (or conduct) depends on the credibility of the declarant, i.e., the probative value of the statement depends upon whether the declarant was telling the truth or not, and the statement or conduct is offered to prove an issue then, in that event, the statement is hearsay and is therefore not admissible unless it falls within one of the many exceptions to the hearsay rule. • In that event, go to the next step and determine whether or not the statement or conduct falls within one of the many exceptions to the prohibition against the use of “hearsay” evidence. Step Four • Apply any exceptions

Answer 368

o A declarant is considered to be unavailable as a witness if the declarant: o Criteria for Being Unavailable o The Exceptions  Former Testimony  Rai v. Reid, 294 Ga. 270 (2013): ‘to insure that the party against whom the testimony is now offered had an opportunity adequately to cross-examine the witness at the previous proceeding.’ ” And, this requirement is satisfied “if the party against whom the former testimony is offered is the same and the previous proceeding provided an adequate opportunity for cross-examination.” o FRE 804 is presented in two parts: o Part One (a) gives us the rules for determining what “unavailable” means. o Part Two (b) gives us the rules for the admissibility of “hearsay” evidence when a declarant is determined to be “unavailable.” o (1) (when the declarant) is exempted from testifying about the subject matter of the declarant’s statement because the court rules that a privilege applies; o [The federal rules of evidence through FRE 501, o left the law of privileges in its present state and o further provided that privileges shall continue o to be developed by the courts of the United States under a uniform standard applicable both in civil o and criminal cases.] o 2. Or (when the declarant) refuses to testify about the subject matter despite a court order to do so; or o When the Declarant is Unavailable as a Witness. A declarant is “unavailable” as a witness if the declarant claims a privilege. o United States v. MacCloskey, 682 F. 2d 468 (1982) o A witness is unavailable under FRE 804(a) when he invokes the Fifth Amendment privilege and the claim is sustained by the trial court. o U.S. v. Madrigal, 171 F.3d 1188 (1999) o Granting Use Immunity” to Witness Who Invokes Fifth Amendment o 3. (when the declarant) testifies to not remembering the subject matter; or o 4. (when the declarant) cannot be present or testify at the trial or hearing because of death or a then-existing infirmity, physical illness, or mental illness; or o 5. (when the declarant) is absent from the trial or hearing and the statement’s proponent has not been able, by process or other reasonable means, to procure: o (When the Declarant Refuses to Testify) o A declarant is “unavailable” as a result of the invocation of his right not to incriminate himself and the issue of possible incrimination is taken away by the granting of use immunity, then the witness is not longer unavailable. o (c) (When the Declarant Testifies That He Cannot Remember) A declarant is “unavailable” when testifies to not remembering the subject matter; or o The position that a claimed lack of memory by the witness of the subject matter of his statement constitutes unavailability. Lack of memory must be established by the testimony of the witness himself, which clearly contemplates his production and subjections to cross-examination. o (d) (When the Declarant Cannot Be Present or Testify Because of Death or Then Existing Infirmity) When the declarant is “unavailable” when he cannot be present or testify at the trial or hearing because of death or a then-existing infirmity, physical illness, or mental illness; or o (e) (When the Declarant Cannot Be Present or Testify) The declarant is “unavailable” when he or she is absent from the trial or hearing and the statement’s proponent has not been able, by process or other reasonable means, to procure: o the declarant’s attendance, in the case of a hearsay exception under Rule 804(b) or (6); or o the declarant’s attendance or testimony, in the case of a hearsay exception under Rule 804(b)(2),(3), or (4) o But this subdivision (a) does not apply if the statement’s proponent procured or wrongfully caused the declarant’s unavailability as a witness in order to prevent the declarant from attending or testifying. o FRE 804(b) o The following are excluded by the rule against hearsay if the declarant is unavailable as a witness: o 1. (Prior Testimony Under Oath) Testimony that was given as a witness at a trial, hearing, or lawful deposition, whether given during the current proceeding or a different one; and is now offered against a party who had –or, in a civil case, whose predecessor in interest had – an opportunity and similar motive to develop it by direct, cross-, or redirect examination. o 2. Statement Under the Belief of Imminent Death) In a prosecution for homicide or in a civil case, a statement that the declarant, while believing the declarant’s death to be imminent, made about its cause or circumstances. (Dying Declaration) o (Statement Against Interest) A statement that: o 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 the declarant’s claim against someone else or to expose the declarant to civil or criminal liability; and o (Statement Against Interest) A statement that: o 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 the declarant’s claim against someone else or to expose the declarant to civil or criminal liability; and

Answer 369

o Hagar v. State, 297 Ga. 112 (2015)  A statement which qualifies as a dying declaration pursuant to the parameters set forth by governing statute is admissible as an exception to hearsay; as such, the evidence is not simply admissible, though not probative of the issue of guilt, it is admissible as an exception to hearsay for the jury to weigh and consider as evidence of guilt

Answer 370

o The law recognizes a number of hearsay exceptions admitting various documents which record family and personal history. These exceptions developed long before record keeping became routine and before scientific evidence existed to help establish identity, parentage, etc. Nevertheless these exceptions—for records of religious organizations, marriage, baptismal and similar certificates, and family records—still have more than occasional application.

Answer 371

o Giles v. California, 535 U.S. 353 (2011)  The State Court of Appeal concluded that the Confrontation Clause permitted the trial court to admit into evidence the unconfronted testimony of the murder victim under a doctrine of forfeiture by wrongdoing. It concluded that Giles had forfeited his right to confront the victim's testimony because it found Giles had committed the murder for which he was on trial—an intentional criminal act that made the victim unavailable to testify. The State Supreme Court affirmed on the same ground.  “Second common-law doctrine permitting admission of unconfronted testimonial statements, referred to as “forfeiture by wrongdoing,” permitted introduction of statements of witness who was detained or kept away by means or procurement of defendant.”  Common law “forfeiture by wrongdoing” exception to confrontation requirement applied only when defendant engaged in conduct designed to prevent witness from testifying.  Hearsay exception where declarant was unavailable as witness applies only when defendant engaged or acquiesced in wrongdoing that was intended to, and did, procure unavailability of declarant as witness and codifies common law doctrine of forfeiture by wrongdoing.  The manner in which the rule was applied makes plain that unconfronted testimony would not be admitted without a showing that the defendant intended to prevent a witness from testifying. In cases where the evidence suggested that the defendant had caused a person to be absent, but had not done so to prevent the person from testifying—as in the typical murder case involving accusatorial statements by the victim—the testimony was excluded unless it was confronted or *362 fell within the dying-declarations exception. Prosecutors do not appear to have even argued that the judge could admit the unconfronted statements because the defendant committed the murder for which he was on trial.  In sum, our interpretation of the common-law forfeiture rule is supported by (1) the most natural reading of the language used at common law; (2) the absence of common-law cases admitting prior statements on a forfeiture theory when the defendant had not engaged in conduct designed to prevent a witness from testifying; (3) the common law's uniform exclusion of unconfronted inculpatory testimony by murder victims (except testimony given with awareness of impending death) in the innumerable cases in which the defendant was on trial for killing the victim, but was not shown to have done so for the purpose of preventing testimony; (4) a subsequent history in which the dissent's broad forfeiture theory has not been applied. The first two and the last are highly persuasive; the third is in our view conclusive

Answer 372

• The following are not excluded by the rule against hearsay, regardless of whether the declarant is available as a witness: o A statement describing or explaining an event or condition, made while or immediately after the declarant perceived it.  Excited utterances for example: A statement relating to a startling event or condition, made while the declarant was under the stress of excitement that it caused.  United States v. Cain, 587 F. 2d 678 (1979) o A statement concerning present sense impressions must be made while the declarant was perceiving the event or condition or immediately thereafter.  Miller v. Keating, 754 F.2d 507 (1985)  The “old catchall, “Res gestae,” is no longer part of the law of evidence as governed by the federal rules of evidence and it is not a part of Georgia’s new evidence code.  The term “res gestae” means “the thing done” and is applied only to words that accompany an act and aid in giving legal significance to an act. The federal rules use the term “excited utterances,” and that is the term used in the new Georgia Evidence code.  Declarations accompanying an act, or so nearly connected therewith in time as to be free from all suspicion of device or after thought, shall be admissible in evidence as part of the act being observed.  Jennings v. State, 292 Ga. App. 149 (2008)  Admissibility of declarations as part of the res gestae is left to the sound discretion of the trial court, considering the time, circumstances, and statements in question. o A statement of the declarant’s then-existing state of mind (such as motive, intent, or plan) or emotional, sensory, or physical condition (such as mental feeling, pain, or bodily health), but not including a statement of memory or belief to prove the fact remembered or believed unless it relates to the validity or terms of the declarant’s will. o A statement that:  Is made for – and is reasonably pertinent to –medical diagnosis or treatment; and  Describes medical history; past or present symptoms or sensations; their inception; or their general cause.  United States v. Iron Shell, 633 F. 2d 77 (1980) o Statements made for purposes of medical diagnosis or treatment and describing medical history, or past or present symptoms, pain, or sensations, or the inception or general character of the cause or external source thereof insofar as reasonably pertinent to diagnosis or treatment. (Compare this to a 911 call)  Bryant v. State, 304 Ga. App. 456 (2010): Testimony by a nurse that the victim stated that her assailant had “pushed her into the furniture.” Here, the victim's statement to the nurse was given to explain both the nature and origin of some of her injuries. Accordingly, that statement “was pertinent to the diagnosis and treatment of the victim, and, therefore, was admissible.” o A record that:  Is on a matter the witness once knew about but now cannot recall well enough to testify fully and accurately;  Was made or adopted by the witness when the matter was fresh in the witness’s memory; and  Accurately reflects the witness’s knowledge.  If admitted, the record may be read into evidence but may be received as an exhibit only if offered by an adverse party o A record of an act, event, condition, opinion, or diagnosis if:  The record was made at or near the time by – or from information transmitted by – someone with knowledge;  The record was kept in the course of a regularly conducted activity of a business, organization, occupation, or calling, whether or not for profit;  Making the record was a regular practice of that activity; o All these conditions are shown by the testimony of the custodian or another qualified witness, or by a certification that complies with Rule 902(11) or (12) or with a statute permitting certification; and

Answer 373

• The original or a copy of a domestic record that meets the requirements of Rule 803(6)(A)-(C), as shown by a certification of the custodian or another qualified person that complies with a federal statute or a rule prescribed by the Supreme court. Before the trial or hearing, the proponent must give an adverse party reasonable written notice of the intent to offer the record – and must make the record and certification available for inspection – so that the party has a fair opportunity to challenge them.

Answer 374

• In a civil case, the original or a copy of a foreign record that meets the requirements of Rule 902(11), modified as follows: the certification, rather than complying with a federal statute or Supreme Court rule, must be signed in a manner that, if falsely made, would subject the maker to a criminal penalty in that country where the certification is signed. The proponent must also meet the notice requirements of Rule 902(11). • The opponent does not show that the source of information or the method or circumstances of preparation indicated a lack of trustworthiness. o Olesen v. Hennigsen, 77 N.W. 2d 40 (1956) o Rowe v. State, 302 Ga. App. 239 (2010): “A witness identifying business records does not have to have personal knowledge of the correctness of the records or have actually made the entry himself. The witness laying the foundation for the admission of business records need only be familiar with the method of recordkeeping to testify about the record. • Evidence that a matter is not included in a record described in paragraph (vi) if: • The evidence is admitted to prove that the matter did not occur or exist; • A record was regularly kept for a matter of that kind, and • The opponent does not show that the source of information or the method or circumstances of preparation indicated a lack of trustworthiness. o United States v. De Georgia, 420 F.2d 889 (1969): Absence of an entry concerning a particular transaction in a regularly-maintained business record of such transactions is the equivalent to an assertion by the person maintaining the record that no such transaction occurred. • A record or statement of a public office if: o It sets out; o The offices activities; o A matter observed under a legal duty to report, but not including, in a criminal case, a matter observed by law-enforcement personnel; or o In a civil case or against the government in a criminal case, factual findings from a legally authorized investigation; and o The opponent does not show that the source of information or the method or circumstances of preparation indicated a lack of trustworthiness.  Melendez – Diaz v. Massachusetts, 129 S. Ct. 2527 (2009): Crime lab reports or affidavits are [not] admissible without confrontation … because they do not qualify as traditional official or business records, and even if they did, their authors would be subject to confrontation nonetheless. • “[D]ocuments kept in the regular course of business may ordinarily be admitted at trial despite their hearsay status. But that is not the case if the regularly conducted business activity is the production of evidence for use at trial. The analysts' certificates-like police reports generated by law enforcement officials-do not qualify as business or public records for precisely the same reason. • Justice Scalia, held that: • (1) analysts' certificates of analysis were affidavits within core class of testimonial statements covered by Confrontation Clause; • (2) analysts were not removed from coverage of Confrontation Clause on theory that they were not “accusatory” witnesses; • (3) analysts were not removed from coverage of Confrontation Clause on theory that they were not conventional witnesses; • (4) analysts were not removed from coverage of Confrontation Clause on theory that their testimony consisted of neutral, scientific testing;  Bullcoming v. New Mexico, : The question presented is whether the Confrontation Clause permits the prosecution to introduce a forensic laboratory report containing a testimonial certification—made for the purpose of proving a particular fact—through the in-court testimony of a scientist who did not sign the certification or perform or observe the test reported in the certification. We hold that surrogate testimony of that order does not meet the constitutional requirement. • The accused's right is to be confronted with the analyst who made the certification, unless that analyst is unavailable at trial, and the accused had an opportunity, pretrial, to cross-examine that particular scientist. • The question presented is whether the Confrontation Clause permits the prosecution to introduce a forensic laboratory report containing a testimonial certification—made for the purpose of proving a particular fact—through the in-court testimony of a scientist who did not sign the certification or perform or observe the test reported in the certification. We hold that surrogate testimony of that order does not meet the constitutional requirement. • The accused's right is to be confronted with the analyst who made the certification, unless that analyst is unavailable at trial, and the accused had an opportunity, pretrial, to cross-examine that particular scientist. • A record of a birth, death, or marriage, if reported to a public office in accordance with a legal duty. o Public records and reports, statements, or data compilations, in any form, of public offices or agencies; o Records of vital statistics, in any form, of births, fetal deaths, deaths, or marriages, if the report thereof was made to a public office pursuant to requirements of law.  Bridgeway Corp. v. Citibank, 201 F.3d 134 (2000): This rule of evidence is based upon the assumption that public officers will perform their duties, that they lack motive to falsify, and that public inspection to which many such records are subject will disclose inaccuracies. • Testimony – or a certification under Rule 902 – that a diligent search failed to disclose a public record or statement if: o The testimony or certification is admitted to prove that o The record or statement does not exist; or o A matter did not occur or exist, if a public office regularly kept a record or statement for a matter of that kind; and • In a criminal case, a prosecutor who intends to offer a certification provides written notice of that intent at least 14 days before trial, and the defendant does not object in writing within 7 days of receiving the notice – unless the court sets a different time for the notice or the objection. • A statement of birth, legitimacy, ancestry, marriage, divorce, death, relationship by blood or marriage, or similar facts of personal or family history, contained in a regularly kept record of a religious organization. o Fellowship of Humanity v. Alameda County, 315 P.2d 394 (1957) o The term “religion” as used in tax exemption laws, simply includes: o a belief, not necessarily referring to supernatural powers; a cult, involving a gregarious association openly expressing the belief; a system of moral practice directly resulting from an adherence to the belief; and an organization within the cult designed to observe the tenets or belief, the content of such belief being of no moment. o Where activities of a nonprofit corporation were similar in all respects to those of theistic religious groups, except for such corporation's lack of belief in a Supreme Being, such corporation's property was entitled to an exemption from property taxes on grounds that such property was used for “religious worship” within meaning of section of the Constitution exempting such property from taxation. • A statement of fact contained in a certificate: o Made by a person who is authorized by a religious organization or by law to perform the act certified; o Attesting that the person performed a marriage or similar ceremony or administered a sacrament; and o Purporting to have been issued at the time of the act or within a reasonable time after it. • A statement of fact about personal or family history contained in a family record, such as a Bible, genealogy chart, engraving on a ring, inscription on a portrait, or engraving on an urn or burial marker. o Southern Life Ins. Co. v. Wilkinson, 53 Ga. 535 (1974): A bible containing a family record, in the handwriting of a deceased daughter, which remained in the possession of the other until her death, and then went into the possession of another daughter, from whom the witness got it, is competent evidence on the question of the age of one of the children of that mother. • The record of a document that purports to establish or affect an interest in property if: o The record is admitted to prove the content of the original recorded document along with its signing and its delivery by each person who purports to have signed it; o The record is kept in a public office; and o A statute authorizes recording documents of that kind in that office. • A statement contained in a document that purports to establish or affect an interest in property if the matter stated was relevant to the document’s purpose – unless later dealings with the property are inconsistent with the truth of the statement or the purport of the document. • A statement in a document that is at least 20 years old and whose authenticity is established. o McDay v. Metropolitan Life Ins. Co., 51 Ga. App. 791 (1935): “Ancient documents purporting to be part of the transaction to which they relate are admissible in evidence to prove the facts stated therein. • Market quotations, lists, directories, or other compilations that are generally relied on by the public or by persons in particular occupations. o The court finds, at least, that the tariff report and price guide are “market quotations, tabulations, lists, directories, or other published compilations, generally used and relied upon by the public or by persons in particular occupations” and, therefore, the materials are admissible under the “market reports” and “commercial publications” exception to the hearsay rule. o Suarez v. Suarez, 257 Ga. 102 (1987)  Books such as mortality tables and almanacs which have become “notoriously accurate” with respect to the facts or scientific propositions sought to be proved, have been held to be admissible evidence.  It is generally recognized that market reports or quotations as printed in newspapers, trade journals, trade circulars, price lists, and similar publications, which are well known, reliable, and of good repute, are admissible in evidence of the state of the market. Such reports, being based upon a general survey of the whole market and constantly received and acted upon by dealers, are for more satisfactory and reliable than individual entries or individual sales or inquires. • A statement contained in a treatise, periodical, or pamphlet if: • That statement is called to the attention of an expert witness on cross-examination or relied on by the expert on direct examination; and o The publication is established as a reliable authority by the expert’s admission or testimony, by another expert’s testimony, or by judicial notice. o Collins v. State, 172 Ga. App. 100 (1984): Judicial notice may be defined as a judge taking notice of a fact and allowing it into evidence without either party proving its existence. Generally, a judge will take notice of a fact when it is not in dispute. o Rogers v. State, 202 Ga. App. 595 (1992): “Books of science and art are not admissible in evidence to prove the opinions of experts therein expressed. But, notwithstanding the inadmissibility of the books, the opinions contained therein may come to the jury through the mouth of an expert witness. • The opinion of an expert as to what conclusions may be properly drawn from statements in scientific works pertaining to his or her profession, amounts to something more than mere hearsay, and may be very valuable in elucidating a given scientific inquiry. “The court [would have] erred in restricting the expert’s testimony as . . . hearsay and allowing [her] to testify only as to actual knowledge of tests performed by [her].” o If admitted, the statement may be read into evidence, but not received as an exhibit. • A reputation among a person’s family by blood, adoption, or marriage – or among a person’s associates or in the community – concerning the person’s birth, adoption, legitimacy, ancestry, marriage, divorce, death, relationship by blood, adoption, or marriage, or similar facts of personal of family history. o Crawley v. Selby, 208 Ga. 530 (1951)  Pedigree, including descent, relationship, birth, marriage, and death, may be proved either by the declarations of deceased persons related by blood or marriage, or by general repute in the family, or by genealogies, inscriptions, ‘family trees,’ and similar evidence . . .It has also been held proper for one to testify to facts of family history which related to him. • A reputation in a community – arising before the controversy concerning boundaries of land in the community or customs that affect the land, or concerning general historical events important to that community, state, or nation. • A reputation among a person’s associates or in the community concerning the person’s character. • Evidence of a final judgment of conviction if: o The judgment was entered after a trial or guilty plea, but not a nolo contendere plea; o The conviction was for a crime punishable by death or by imprisonment for more than a year; o The evidence is admitted to prove any fact essential to the judgment; and o When offered by the prosecutor in a criminal case for a purpose other than impeachment, the judgment was against the defendant.  Ohler v. United States, 529 U.S. 753 (2000): Evidence that an accused has been convicted of a felony shall be admitted it the court determines that the probative value of admitting this evidence outweighs its prejudicial effect to the accused.  The pendency of an appeal may be shown but does not affect admissibility. • A judgment that is admitted to prove a matter of personal, family, or general history, or boundaries, if the matter: o Was essential to the judgment; and o Could be proved by evidence of reputation.

Answer 375

• Under the following circumstances, a hearsay statement is not excluded by the rule against hearsay even if the statement is not specifically covered by a hearsay exception in FRE 803 or FRE 804: o The statement has equivalent circumstantial guarantees of trustworthiness; o It is offered as evidence of a material fact; o It more probative on the point for which it is offered than any other evidence that the proponent can obtain through reasonable efforts; and o Admitting it will best serve the purposes of these rules and the interests of justice. • The statement is admissible only if, before the trial, or hearing, the proponent gives an adverse party reasonable notice of the intent to offer the statement and its particulars, including the declarant’s name and address, so that the party has a fair opportunity to meet.

Answer 376

* Evidence is not hearsay when it is used only to prove that a prior statement was made and not to prove the truth of the statement. * Statements [in a deposition] were the equivalent of a ‘physical exhibit that demonstrates that words were spoken.’ * The government was simply laying a foundation to show that the statements were false and made in furtherance of the conspiracy

Answer 377

• Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.

Answer 378

• Establishment of religion clause • Free exercise of religion clause o In applying the analysis to determine whether a religious organization may properly be characterized as a church, the Internal Revenue Service considers whether the organization has the following characteristics: 1. a distinct legal existence, 2. a recognized creed and form of worship, 3. a definite and distinct ecclesiastical government, 4. a formal code of doctrine and discipline, 5. a distinct religious history, 6. a membership not associated with any other church or denomination, 7. an organization of ordained ministers, 8. ordained ministers selected after completing prescribed studies, 9. a literature of its own, 10. established places of worship, 11. regular congregations, 12. regular religious services, 13. Sunday schools for religious instruction of the young, 14. schools for the preparation of its ministers, and 15. any other facts and circumstances that may bear upon the organization's claim for church status. • Third Amendment o No Soldier shall, in time of peace be quartered in any house, without the consent of the Owner, nor in time of war, but in a manner to be prescribed by law.

Answer 379

• The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

Answer 380

* The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people * Constitution Cannot Deny Retained Basic Rights

Answer 381

o The Constitution Contains “Penumbras” and “Emanations” of Right of Privacy. o The definition of a penumbra is a shadowy, indefinite, or marginal area. o The definition of an emanation is something this is an abstract but perceptible thing that issues or originates from a source

Answer 382

o The makers of our Constitution undertook to secure conditions favorable to the pursuit of happiness. They recognized the significance of man's spiritual nature, of his feelings and of his intellect. They knew that only a part of the pain, pleasure and satisfactions of life are to be found in material things. They sought to protect Americans in their beliefs, their thoughts, their emotions and their sensations. They conferred, as against the Government, the right to be let alone - the most comprehensive of rights and the right most valued by civilized man.

Answer 383

o The Court asserted that the "right of privacy,” is broad enough to encompass a woman's decision whether or not to terminate her pregnancy."

Answer 384

• The court must decide any preliminary question about whether a witness is qualified, a privilege exists, or evidence is admissible. In so deciding the court is not bound by evidence rules, except those on privilege.

Answer 385

* 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. * DEFINITION of “Privileged Communication” * Interaction between two parties in which the law recognizes a private, protected relationship. * Whatever is communicated between these pairs of parties shall remain confidential, and the law cannot force disclosure of these communications. * Introduction of privileges by looking at a non-privilege: * In Georgia there is no patient medical doctor privilege! * The position in Georgia relative to doctor-patient relationship is consistent with the lack of such privilege in the common law. Wigmore in his treatise on evidence recognized no privilege between doctor and patient. (Gilmore v. State, 175 Ga. App. 376 (1985) and Elliott v. Georgia Power Company, 58 Ga. App. 151 (1938)) * Some states have weighed the “need to know” by the doctor in order to be better equipped to treat his patient against the search for truth involved in all trials. Usually where the legislature has created a confidential relationship, it has been in recognition of the doctor's paramount need at the expense of the public's right to know. Georgia, through its legislature, has not elected to join the states that recognize a public policy seal to maintain secrecy in the doctor-client communication area. * Most states have enacted doctor-patient privilege statutes, but they vary somewhat in their provisions. Section 501 of the Federal Rules of Evidence recognizes no physician-patient privilege in cases arising under federal law.

Answer 386

• General Rule of Privileged Communications • The common law-as interpreted by United States courts in the light of reason and experience-governing a claim of privilege unless any of the following provides otherwise: o The United States Constitution; o A federal statute; or o Rules prescribed by the Supreme Court • But in a civil case, state law governs privilege regarding a claim or defense for which state law supplies the rule of decision.

Answer 387

* Contained 13 rules * Nine of those Rules defined specific non-constitutional privileges which federal courts would have been required to recognize. * Required reports * Lawyer-client * Psychotherapist-patient * Husband-wife * Clergy communications * Political vote * Trade secrets * Secrets of State * Informant Identity * Those privileges created by an Act of Congress * Rule deal with voluntary waiver of privilege * Rule dealing with compulsory disclosure of privileged communication. * Jury instructions with regard to privileged communications. * These 13 privileges were not made a part of the Federal Rules of Evidence.

Answer 388

• Limitations on use of inadvertent disclosure of attorney-client privileged communications. • The following provisions apply, in the circumstances set out, to disclosure of a communication or information covered by the attorney-client privilege or work-product protections. • When the disclosure is made in a federal proceeding or to a federal office or agency and waives the attorney client privilege or work-product protection, the waiver extends to an undisclosed communication or information in a federal or state proceeding only if: i. The waiver is intentional; ii. The disclosed and undisclosed communications or information concern the same subject-matter; and iii. They ought in fairness to be considered together. • When made in a federal proceeding or to a federal office or agency, the disclosure does not operate as a waiver in a federal or state proceeding if: i. The disclosure is inadvertent; ii. The holder of the privilege or protection took reasonable steps to prevent disclosure; and iii. The holder promptly took reasonable steps to rectify the error, including (if applicable) following federal Rule of Civil Procedure 26(b)(5)(B).

Answer 389

 The inadvertent production of either attorney-client privileged material, Confidential Information or Restricted Information does not constitute a waiver of any privilege or right to claim the privileged or confidential status of the documents, materials, or information produced. In no event, however, shall any provision in this Protective Order be construed to alter the legal definition of “inadvertent,” to reduce or diminish the standard or showing required to establish that production of materials that constitute Confidential Information or Restricted Information was truly inadvertent, or to provide protection from disclosure as governed by applicable law. If a producing Party inadvertently produces attorney-client privileged material in this Action, the producing Party shall promptly make a good-faith representation that such production was inadvertent and take prompt remedial action to withdraw the disclosure. Within three (3) business days of receiving a written request to do so from the producing Party, the receiving Party must return, sequester, or destroy the specified information and any copies it has. Thereafter, the receiving Party must not use or disclose the information until the claim is resolved; must take reasonable steps to retrieve the information if the receiving Party disclosed it before being notified; and may promptly present the information to the Court under seal for a determination of the claim. The producing Party must preserve the information until the claim is resolved.

Answer 390

• There are certain admissions and communications excluded on grounds of public policy, including, but not limited to, the following: o Communications between husband and wife; o Communications between attorney and client;

Answer 391

 The attorney-client privilege survives the death of the client.  The attorney-client privilege does not make privilege communications which involve future crimes.  The attorney-client privilege does not make privilege communications which involve the perpetuation of a fraud.  The crime-fraud exception to the attorney-client privilege does not require proof of the existence of a crime or fraud to overcome the claim that a communication is privileged; rather, its applicability depends upon whether a prima facie case has been made that the communication was made in furtherance of an illegal or fraudulent activity.  In the law of evidence, a client's privilege to refuse to disclose, and to prevent any other person from disclosing, confidential communications between the client and his or her attorney. Such privilege protects communications between attorney and client that are made for the purpose of furnishing or obtaining professional legal advice or assistance. That privilege that permits an attorney to refuse to testify as to communications from the client. It belongs to the client, not the attorney, and hence only the client may waive it. In federal courts, state law is applied with respect to such privilege. o Communications among grand jurors; o Secrets of state; o Communications between psychiatrist and patient; o Communications between licensed psychologist and patient; o Communications between patient and a licensed clinical social worker, clinical nurse specialist in psychiatric/mental health, licensed marriage and family therapist, or licensed professional counselor during the psychotherapeutic relationship; and o Communications between or among any psychiatrist, psychologist, licensed clinical social worker, clinical nurse specialist in psychiatric/mental health, licensed marriage and family therapist, and licensed professional counselor who are rendering psychotherapy or have rendered psychotherapy to a patient, regarding that patient's communications which are otherwise privileged by paragraph (5), (6), or (7) of this Code section.

Answer 392

 In 1995, the scope of Georgia's privilege was statutorily expanded to cover confidential communications between a patient and a licensed clinical social worker, clinical nurse specialist in mental health, licensed marriage and family therapist, and licensed professional counselor.  It is appropriate to refer to the privilege at issue as the “mental health privilege.” In order to invoke the statutory mental health privilege in Georgia, “the requisite relationship of [mental health provider] and patient must have existed, to the extent that treatment was given or contemplated.” o Communications between accountant and client as provided by Code Section 43-3-32. o (b) As used in this Code section, the term: o (1) “Psychotherapy” means the employment of psychotherapeutic techniques. o (2) “Psychotherapeutic techniques” shall have the same meaning as provided in Code Section 43-10A-3.

Answer 393

* Certified Public Accountant Privilege * Purpose of the accountant-client privilege is to insure an atmosphere wherein the client will transmit all relevant information to his accountant without fear of any future disclosure in subsequent litigation

Answer 394

o Georgia courts interpret its scope as analogous to that of the attorney-client privilege. o Georgia court would likely consider the policy behind the accountant-client privilege, which was enacted to further the State's public policy of encouraging a client to “transmit all relevant information to his accountant without fear of any future disclosure in subsequent litigation. o Court will hold that communications with an accountant are protected by the Georgia accountant-client privilege to the same extent as his communications with his attorneys

Answer 395

* Every communication made by any person professing religious faith, seeking spiritual comfort, or seeking counseling to any Protestant minister of the Gospel, any priest of the Roman Catholic faith, any priest of the Greek Orthodox Catholic faith, any Jewish rabbi, or any Christian or Jewish minister or similar functionary, by whatever name called, shall be deemed privileged. No such minister, priest, rabbi, or similar functionary shall disclose any communications made to him or her by any such person professing religious faith, seeking spiritual guidance, or seeking counseling, nor shall such minister, priest, rabbi, or similar functionary be competent or compellable to testify with reference to any such communication in any court. * The Newly Adopted Rules of Evidence Effective changed this code section to include the phrase “or similar functionary” after the word minister in the first sentence. All other parts of the code section remain the same within the new code.

Answer 396

• Husband – Wife Privilege o Trammel v. United States, 445 U.S. 40 (1980)  Modern justification for this privilege is its perceived role in fostering the harmony and sanctity of the marriage relationship.  When one spouse is willing to testify against the other in criminal proceedings, their relationship is in disrepair. o Morris v. State, 275 Ga. 601 (2002) o “only those communications with a clergy person in which the declarant is professing religious faith, or seeking spiritual comfort or counseling are deemed privileged.”

Answer 397

* Husband and wife shall be competent but shall not be compellable to give evidence in any criminal proceeding for or against each other. * The privilege created by subsection (a) of this Code section or by corresponding privileges in paragraph (1) of Code Section 24-5-501 or subsection (a) of Code Section 24-5-505 shall not apply in proceedings in which: * the husband or wife is charged with a crime against the person of a minor child under the age of 18, but such husband or wife shall be compellable to give evidence only on the specific act for which the accused is charged; * The husband or wife is charged with a crime against his or her spouse; * The husband or wife is charged with causing physical damage to property belonging to the husband and wife or to their separate property; or * The alleged crime against his or her current spouse occurred prior to the lawful marriage of the husband and wife.

Answer 398

 The trial court also did not err in overruling Pike's marital privilege objection to the admission of the photographs because no violation of the marital privilege occurred.  The marital privilege excludes the admission of communications between husband and wife. But “the right to assert the marital privilege belongs to the witness, not the accused.”  “The marital privilege does not apply “in proceedings in which the husband or wife is charged with a crime against the person of a minor child, but such person shall be compellable to give evidence only on the specific act for which the defendant is charged.”

Answer 399

• To constitute a valid marriage in this state there must be: a. Parties able to contract; b. An actual contract; and c. Consummation according to law.

Answer 400

• No common-law marriage shall be entered into in this state on or after January 1, 1997. Otherwise valid common-law marriages entered into prior to January 1, 1997, shall not be affected by this Code section and shall continue to be recognized in this state. • Pike v. State, 299 Ga. App. 285 (2009) o The trial court also did not err in overruling Pike's marital privilege objection to the admission of the photographs because no violation of the marital privilege occurred. The marital privilege excludes the admission of communications between husband and wife. But “the right to assert the marital privilege belongs to the witness, not the accused.”

Answer 401

* Burden of Proof when Att. Client Pr. asserted: The person asserting the attorney-client or attorney work product privilege has the burden of establishing the existence of the attorney client relationship. * Once that party establishes facts necessary to support a prima facie claim of privilege, the communication is presumed to have been made in confidence and the opponent of the claim of privilege has the burden of proof to establish the communication was not confidential or that the privilege does not for other reasons apply.

Answer 402

 Rehnquist, C.J., delivered the opinion of the Court, in which Stevens, Kennedy, Souter, Ginsburg, and Breyer, jj., joined.  The extent and scope of the privilege  The attorney-client privilege is one of the oldest recognized privileges for confidential communications. The privilege is intended to encourage “full and frank communication between attorneys and their clients and thereby promote broader public interests in the observance of law and the administration of justice.” The issue presented here is the scope of that privilege; more particularly, the extent to which the privilege survives the death of the client. Our interpretation of the privilege's scope is guided by “the principles of the common law ... as interpreted by the courts ... in the light of reason and experience.  “The Independent Counsel (in seeking to have the privilege ended upon the death of the holder of that privilege, i.e. Vince Foster) argues that the attorney—client privilege should not prevent disclosure of confidential communications where the client has died and the information is relevant to a criminal proceeding.”  After President Clinton was elected, his staff fired workers in the White House Travel Office. A congressional investigation ensured. Vincent W. Foster, Jr., was Deputy White House Counsel. In July, 1993, Foster met with James Hamilton, an attorney at petitioner Swidler & Berlin, to seek legal representation concerning possible congressional or other investigations of the firings. During a 2—hour meeting, Hamilton took three pages of handwritten notes. Nine days later, Foster committed suicide.  “Clients consult attorneys for a wide variety of reasons, many of which involve confidences that are not admissions of crime, but nonetheless are matters the clients would not wish divulged. The suggestion that the proposed exception would have minimal impact if confined to criminal cases, or to information of substantial importance in particular criminal cases, is unavailing because there is no case law holding that the privilege applies differently in criminal and civil cases, and because a client may not know when he discloses information to his attorney whether it will later be relevant to a civil or criminal matter, let alone whether it will be of substantial importance.”  Several State Supreme Court decisions expressly hold that the attorney-client privilege extends beyond the death of the client, even in the criminal context. “[f]or example, the Massachusetts Supreme Court concluded that survival of the privilege was “the clear implication” of its early pronouncements that communications subject to the privilege could not be disclosed at any time.”  “It has been generally, if not universally, accepted, for well over a century that the attorney-client privilege survives the death of the client in a case such as this. While the arguments against the survival of the privilege are by no means frivolous, they are based in large part on speculation–thoughtful speculation, but speculation nonetheless–as to whether posthumous termination of the privilege would diminish a client’s willingness to confide in an attorney.”  The Attorney – Client Privilege survives the death of the client  O’Connor, Scalia (and therefor) Thomas dissented from the majority opinion and would hold that the privilege should be narrowly interpreted and should not survive the death of the client.  Where the exoneration of an innocent criminal defendant or a compelling law enforcement interest is at stake, the harm of precluding critical evidence that is unavailable by any other means outweighs the potential disincentive to forthright communication. In my view, the cost of silence warrants a narrow exception to the rule that the attorney-client privilege survives the death of the client. Moreover, although I disagree with the Court of Appeals' notion that the context of an initial client interview affects the applicability of the work product doctrine, I do not believe that the doctrine applies where the material concerns a client who is no longer a potential party to adversarial litigation.

Answer 403

 Under the common law of Georgia the attorney-client privilege bars revelation, discovery, and testimony of a lawyer except when waived by the client or in very limited circumstances.  These prohibitions are not a matter of legal ethics under the Code of Professional Responsibility but are the mandates of the common law of Georgia as an expression of public policy, which the lawyer has no power to waive.

Answer 404

* A lawyer may reveal information covered [the attorney client privilege] which the lawyer reasonably believes necessary. * To avoid or prevent harm or substantial financial loss to another as a result of client criminal conduct or third party criminal conduct clearly in violation of the law; to prevent serious injury or death not otherwise covered [paragraph (i)]. * The duty of confidentiality shall continue after the client-lawyer relationship has terminated. * The maximum penalty for a violation of this Rule is disbarment

Answer 405

* Upjohn Co. v. United States, 449 U.S. 383 (1981) * Purpose of the Attorney – Client Privilege * To encourage full and frank communication between attorneys and their clients and thereby promote broader public interests in the observance of the law and the administration of justice

Answer 406

• The extent to which the privilege extends to various corporate officers and agents.

Answer 407

• This theory holds that privilege only extends to those who “control” and direct the activities of the corporation.

Answer 408

• This theory provides for a case-by-case analysis, regardless of to whom and with whom the communications were made and looks to the purpose of the communication.

Answer 409

o The control group test: In this test, an employee's statement is not considered a corporate communication unless the employee ‘is in a position to control or even to take a substantial part in a decision about any action which the corporation may take upon the advice of the attorney, or if he is an authorized member of a body or group which has that authority. o The subject matter test: In this test ‘an employee of a corporation, though not a member of its control group, is sufficiently identified with the corporation ... where the employee makes the communication at the direction of his superiors in the corporation and where the subject matter upon which the attorney's advice is sought by the corporation and dealt with in the communication is the performance by the employee of the duties of his employment

Answer 410

• State Secrets and Executive Privilege • Executive Privileges: Historical Background and Support o On November 4, 1800 a national election was held for the presidency of the United States. When the electoral votes were counted, the Democratic-Federalists emerged with a decisive victory, with Jefferson and Burr each earning 73 votes to Adams’ 65 votes and Pinckney’s 64 votes. John Jay, the governor of New York, received 1 vote. At that point in our history the first place winner would become president and the second place would become vice-president. o Because Jefferson and Burr had tied, the election went to the House of Representatives, which began voting on the issue on February 11, 1801. Jefferson needed a majority of nine states to win, but in the first ballot had only eight states, with Burr winning six states and Maryland and Virginia. Finally, on February 17, a small group of Federalists reasoned that the peaceful transfer of power required that the majority party have its choice as president and voted in Jefferson’s favor. The 35th ballot gave Jefferson victory with 10 votes. Burr received four votes and two states voted blank. o When Jefferson ran for reelection he declined to have Burr on his ticket. The governor of New York, George Clinton was to be the vice-president, not Burr. o Shortly after being denied the vice-presidency, Burr challenged Alexander Hamilton to a duel and killed Hamilton. After the death of Hamilton, Burr began to make plans to create a new empire west of the Mississippi and as a result of his actions, he was indicted and tried for treason. o Letter from General James Wilkinson to President Thomas Jefferson

Answer 411

 Subpoena to President Thomas Jefferson  As part of his defense to the treason charge, Burr attempted to subpoena information from Thomas Jefferson, particularly a letter from a General Wilkinson to Jefferson which would have helped to prove that Burr had not committed treason.  The trial judge in this case was Chief Justice of the Supreme Court, John Marshall (or school’s namesake). The subpoena called for the delivery to Justice Marshall of a letter of November 12, 1806, to the President from General Wilkinson,  President Jefferson claimed that as president he had a privilege and it was up to him to decide whether to release the letter or not.  Justice Marshall disagreed and noted that he, as the trial judge, had the authority to decide whether or not a privilege existed or not.  Although the federal rules of evidence were not in existence at that time, you can see the beginning of FRE 104 and FRE 501.  Jefferson’s assertion of a “privilege for the executive branch was the beginning of the issue which continued down to the time of the William Clinton administration.  Burr asked Chief Justice Marshall to issue a subpoena duces tecum (a subpoena for the production of evidence) to compel Jefferson to provide his private letters concerning Burr. Chief Justice John Marshall, a strong proponent of the powers of the federal government but also a political opponent of Jefferson, ruled that the Sixth Amendment to the Constitution, which allows for these sorts of court orders for criminal defendants, did not provide any exception for the president. As for Jefferson's claim that disclosure of the document would imperil public safety, Marshall held that the court, not the president, would be the judge of that. Jefferson complied with Marshall's order, but claimed he was doing so voluntarily.

Answer 412

o A military aircraft on a flight to test secret electronic equipment crashed near Waycross, Georgia. The civilian observers (in addition to the military personnel) aboard were killed. Their widows sued the United States under the Federal tort claims Act and moved under Rule 34 of the Federal Rules of Civil Procedure for production of the Air force’s accident investigation report and statements made by surviving crew members during the investigation. o The Secretary of the Air Force filed a formal claim of privilege, stating that the matters were privileged against disclosure under the Air force regulations issued under R.S. section 161`, and that the aircraft and its personnel were “engaged in a highly secret mission.” o It was alleged that there was a reasonable probability that military secrets were involved in the material subpoenaed. o Rule 34 of the Federal rules of Civil Procedure: (a) Upon motion of any party showing good cause therefore and upon notice to all other parties,….the court may order any party to produce and permit inspection of [documents]. . . not privileged, ….

Answer 413

o Article III, §1 of the Constitution of the United States o Judicial Power of the United States is vested in the federal courts. o The legitimate needs of the judicial process may outweigh presidential privilege. o Nixon’s claim of executive privilege did not rest on military or diplomatic secrets. o There is no generalized privilege of confidentiality preferential to the president

Answer 414

o Neither doctrine of separation of powers, nor need for confidentiality of high-level communications, without more, can sustain absolute, unqualified presidential privilege of immunity from judicial process under all circumstances

Answer 415

• State Secrets Privilege o No official persons shall be called on to disclose any state matters of which the policy of the state and the interest of the community require concealment

Answer 416

o An executive order was filed after the July 1, 2013, effective date of a new law designating “identifying information” concerning the persons and entities that participate in executions, including those who participate in the procurement of execution drugs, to be a “confidential state secret.” o Hill filed suit in the Superior Court of Fulton County, naming the Commissioner of Corrections and others as defendants (hereinafter “the State”) and seeking an interlocutory injunction, a permanent injunction, a declaratory judgment, a writ of mandamus, and “[s]ealed discovery of the identity of the compounding pharmacy and the supply chain and manufacturer(s) of any and all ingredients used to produce the lethal drug compound to be injected into Warren Hill.” Hill alleged that the execution-participant confidentiality statute was unconstitutional on various grounds in that it wrongly denied him information revealing “the identities of the manufacturer, individuals or entities in the chain of supply, prescriber, compounding pharmacy, or pharmacist responsible for making the drugs available to the Department of Corrections for Mr. Hill's execution.” o In denying Hill’s request that the name and origin of the execution drugs should not be a state secret, the Georgia Supreme court noted that Supreme Court of the United States has held: o The government may classify certain information, establish and enforce procedures ensuring its redacted release, and extend a damages remedy against the government or its officials where the government's mishandling of sensitive information leads to its dissemination.

Answer 417

* During an inquiry into the validity of a verdict or indictment, a juror may not testify about any statement made or incident that occurred during the jury’s deliberations; the effect of anything on that juror’s or another juror’s vote or any juror’s mental processes concerning the verdict or indictment. The court may not receive a juror’s affidavit or evidence of a juror’s statement on these matters. * Exceptions. A juror may testify about whether: * The extraneous prejudicial information was improperly brought to the jury’s attention; * An outside influence was improperly brought to bear on any juror; or * A mistake was made in entering the verdict on the verdict form

Answer 418

* Common law rules of prohibited admission of juror testimony to impeach a jury verdict. * Exceptions to the common law rule were only allowed in situations where an “extraneous influence[d]” a jury’s decision. * Permitting an individual to attack a jury verdict based upon the jury’s internal deliberations has long been recognized as unwise

Answer 419

• Admissions and communications among grand jurors are excluded as evidence on grounds of public policy.

Answer 420

* There are three major justifications for this secrecy: * To promote freedom of disclosure by witnesses; * To prevent perjury and subornation of perjury by withholding information from the targets of the investigation; and * To conceal the charges against the subject to prevent flight.

Answer 421

 Witnesses before a grand jury may discuss their own testimony in public because to restrict them would be a violation of the First Amendment not outweighed by the public interest of the State in the secrecy of grand jury proceedings.

Answer 422

o The Court has consistently declined to hold that an informer’s identity need always be disclosed in a federal criminal trial

Answer 423

o Where the disclosure of an informer’s identify, or of the contents of his communication, is relevant and helpful to the defense of an accused, or is essential to a fair determination of a cause, the privilege must give way. Both reason and context demonstrate, however, that these words are not to be read with extreme literalness. Determining whether the testimony of an informer is likely to be ‘relevant and helpful’ is a task best left to the trial court’s informed discretion

Answer 424

o Confidential informant is a person who provides information about criminal activity to law enforcement officers. o Statements made by a confidential informant are testimonial in nature, and therefore, may not be offered by the government to establish the guilt of an accused absent an opportunity for the accused to cross-examine the informant.

Answer 425

o The decision as to whether “a confidential informant's identity is discoverable rests within the sound discretion of the trial court.” And in making this decision the court must engage in a two-step process. First, the court must hold a hearing and receive evidence as to whether the CI is an alleged witness to or participant in the crime “whose testimony appears to be material to the defense on the issue of guilt or punishment”; whether “the testimony for the prosecution and the defense is or will be in conflict”; and whether “the confidential informant [is] the only available witness who [can] amplify or contradict the testimony of these witnesses. It is the movant who bears the burden of establishing “the relevance, materiality, and necessity of the identity of the informant as a predicate for disclosure,” and if the movant carries this burden the trial court must then “conduct an in camera hearing of the informant's testimony and balance the public interest in protecting the flow of information against the defendant's right to prepare his defense.”

Answer 426

o Where a person merely takes an undercover police officer to a location and identifies, or introduces the officer to the defendant, and the officer arranges for and guys contraband from the defendant, and the person witnesses such sale, or alleged sale, such person is an informer and a not a ‘decoy’ and a disclosure of his name, address, etc., to the defendant is not required as a matter of law. . . but rests in the discretion of the trial judge, balancing the rights of the defendant and the rights of the state under all the facts and circumstances.

Answer 427

o The following communications are deemed privileged: a. Statements made in good faith in the performance of a public duty; b. Statements made in good faith in the performance of a legal or moral private duty; c. Statements made with a good faith intent on the part of the speaker to protect his or her interest in a matter in which it is concerned; d. Statements made in good faith as part of an act in furtherance of the person's or entity's right of petition or free speech under the Constitution of the United States or the Constitution of the State of Georgia in connection with an issue of public interest or concern, as defined in subsection (c) of Code Section 9-11-11.1; e. Fair and honest reports of the proceedings of legislative or judicial bodies; f. Fair and honest reports of court proceedings; g. Comments of counsel, fairly made, on the circumstances of a case in which he or she is involved and on the conduct of the parties in connection therewith; h. Truthful reports of information received from any arresting officer or police authorities; and i. Comments upon the acts of public men or public women in their public capacity and with reference thereto

Evidence Flashcards

(451 cards)