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Flashcards in Evidence Distinctions Deck (39)
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Under Georgia law, what type of facts qualify for judicial notice?

A court can take judicial notice of the following legislative facts:

  • The existence and territorial extent of states and their forms of government
  • All symbols of nationality
  • The laws of all nations
  • The laws of the general assembly and the journals of each branch
  • The laws of the United States and the several states
  • The uniform rules of the court
  • The administrative rules and regulations filed with the secretary of state
  • The general customs of merchants
  • The admiralty and maritime courts of the world and their seals
  • The political makeup and history of Georgia, its local subdivisions, and the federal government
  • The seals of the U.S. and state governments, and
  • All other similar matters of legislative fact.


Under Georgia law, what is the permissible scope of cross-examination?

A witness may be cross-examined on any matter relevant to any issue in the case.


Under Georgia law, what is the burden of proof in a civil action?

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

The burden of proof is by clear and convincing evidence (highly probable or reasonably certain) in

  • A healthcare liablity claim arising out of emergency medical care in a hospital emergency departnment or obstretical unit or
  • A surgical suit immediately after th eevaulation or care of a aptient in a hospital emergency department.


Under Georgia law, what are the statutory presumptions?

Rebuttable presumptions:

  • innocence
  • continuance of life for severn years
  • failure to respond to a letter when the oridinary course of business and good faith requires an answer, then the party admits to the propriety of the acts mentioned in the letter and adopts them.
  • An action to establish a right, title, or interest in property that is part of a railroad right of way, when a party other than the railroad shows occupancy, then the party's use is with the rail company's permission.
  • An dispute concerning payment by check, a duplicate of the check with the original or a duplicate bank statement that reflects the bank's payment of the check creates a presumption that the check has been paid.


Under Georgia law, what is the presumption from failure to preduce evidence?

If a party has evidence within his or her power and he or she omits it, or if he or she has more certain evidence in his or her power but relies on weaker evidence, then a rebuttable presumption arrises that the charges against that party is well founded.


Under Georgia law, what is the method of proving character?

A defendant testifying in a criminal proceeding may also prove his character through specific instances of his conduct.


Under Georgia law, what is the advanced notice requirement for criminal actions?

The prosecution must provide the defendant with reasonable notice of its intent to use MIMIC evidence unless the court excuses the notice requirement upon a showing of good cause.

Notice is not required if the evidence of the prior act is offered to prove the circumstances immediately surrounding the crime charged, the motive, or the prior difficulties between the defendant and the victim.


What is MIMIC?

  • Motive
  • Intent
  • Absence of Mistake
  • Identity, or
  • Common plan


Under Georgia law, when may one generally introduce specific acts as character evidence?

Character evidence may be admitted only in the form of reputation or opinion testimony, regardless of whether the proceeding is civil or criminal.

Nevertheless, specific instances of conduct are also admissible in the following circumstances:

  • When the person's character is an essential element of a charge, claim, or defense
  • When an accused testifies to her own character
  • On cross-examination, inquiry is allowed into relevant specific instances of conduct.


Under Georgia law, how may a criminal defendant present character evidence?

A defendant may prove character by reputation, opinion, or specific acts.


Under Georgia law, when is previous DUI convictions admissible?


  • The defendant in the current case refused to take the state-administered blood, urine, or breath test, and the evidence is relevant to prove knowledge, plan, or absence of mistake or accident
  • The defendant in the current case refused to provide an adquate breath sample for the state-administered test and the evidence is relevant to prove knowledge, plan, or absense of mistake or accident
  • The identity of the driver is in dispute in the current case and the evidence is relevant to prove identity.


Under Georgia law, what is permited to prove bias or self-interest?

A witness's feelings towar or relationship to the parties may always be proved for the jury to considered. A party who wishes to cross-examine a witness as to bias or prejudice must establish that

  1. the bias and prejudice is related to the facts of the case, and
  2. the facts show a self-interest or self-preservation motive to life.

The foundation must be laid outside the jury's presence.


Under Georgia law, what is required to qualify an expert for a civil case?

Georgia has adopted a statute similiar to FRE Rule 702 for civil cases, and Georgia court apply the Daubert analysis.


Under Georgia law, what is required to qualify an expert in a criminal case?

Georgia has not adopted FRE Rule 702 for criminal cases, and Georgia courts do not apply Daubert analysis in criminal actions.

The qualifications of the witness as an expert is within the sound discretion of the court.

All that is required for qualification is

  • the expert must have been educated in a particular skill or profession
  • the procedure or techniques used must have reached a scientific stage of verificable certaintiy based on evidence, expert testimony, treatises, or the rationale of cases in other jurisdictions (upon this showing, the judge may take judicial notice to the methodology)

Expert's credibility and conclusions applicability are jury issues.


Under Georgia law, are surrounding circumstnaces permitted?

Surrounding circumstance are always admissible to aid in the construction of contracts.


Under Georgia law, what are the exceptions to the parol evidence rule?

Parol evidence is admissible to

  • rebut an equity,
  • discharge an entire contract,
  • prove a new and distinct subsequent agreement,
  • enlarge the time of performance, or
  • change the place of performance.


Under Georgia law, when are contemporaneous writings admissible?

All contemporanceous writings are admissible to explain each other. This pricniple holds universally, even if one of the writings contains a merger clause.


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

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


Does Georgia follow the continuing witness rule?

Yes. Testimony given at trial and statements read into evidence are not allowed into the jury room during deliberation. Testimonial evidence is meant to be heard once when the jury is best able to judge the crediblity of the speaker.


Under Georgia law, who holds the confidential marital communications privilege?

The communicating spouse holds the privilege.


Under Georgia law, what are the exceptions to spousal privilege?

  • When one spouse is charged with a crime against any child under age 18,
  • When one spouse is charged with causing phycial damage to the couple's joint or separate property,
  • When the alleged crime against a current spouse occured before the parties' lawful marriage.


Under Georgia law, may a corporation hold attorney-client privilege?



Under Georgia law, what is the physician-patient privilege?

Georgia does not recognize the physician-patient privilege.

Georgia has a "physician's shield" statute providing that a physician, hospital, or healthcare facility is not required to release a patient's medical informatione except

  • when authorized by the patient,
  • required by court order or subpoena,
  • when the patient has placed his or her treatment or the nature or extent of his or her injuries in issue in a juidical proceeding.


Under Georgia law, what is the psychotherapist-patent privilege?

The statute includes psychiatrists, psychologists, licensed clinical social workers, nurse specialists, marriage and family therapists, and professional counselors.


How does Georgia law define psychiatrist?

A person licensed to practice medicine, or reasonably believed by the patient so to be, who devotes a substantial portion of . . . her time engaged in the diagnosis and treatment of a mental or emotional condition, including alcohol or drug addiction.


Under Georgia law, what is the accountant-client privilege?

Georgia recognizes a privilege for confidential communications made by a client to his or her certified public accountant.


Under Georgia law, what is the professional journalist privilege?

A professional journalist can be required to disclose information, documents, or items obtained in the gathering of news if the following elements are met:

  1. It is material and relevent
  2. The material cannot be reasonably obtained by alternative means
  3. It is necessary to the proper preparation or presentation of the case of a party seeking the information, document, or item.


Under Georgia law, are subsequent remedial measures admissible?

Evidence of subsequent remedial measures is not admissible to prove

  • negligence
  • culpable conduct

Evidence of subsequent remedial measures is admissible to prove

  • product liability of a manufacturer


Under Georgia law, what are the exceptions to usage of past sexual behavior evidence in a criminal case?

The past sexual behavior of a victim may be introduce if

  1. the judge finds that the past sexual behavior directly involved the participation of the accused and
  2. the evidence supports an inference that the accused could have reasonably believed that the victim consented to the conduct complained of in the prosecution.


Under Georgia law, how does the statutory rules governing victim behavior effect civil cases?

The Georgia statutes governing admission of a victim's sexual behavior applies only to criminal proceedings.