Evidence

Question 1

Primary source of Evidence in GA

Answer 1

Title 24 of GA Code

• Apply for sentencing too.
• Criminal and civil

Question 2

Subsequent Remedial Measures

Answer 2

Evidence of SRM is admissible in SL matters to prove D admitted unsafe/ could be safer.

Question 3

Statements of Sympathy in Med Mal Cases

Answer 3

CIVIL actions w/ unanticipated outcomes of medical care– conduct by provider expressing sympathy, mistake, error are inadmissible and don’t count as an admission

Question 4

Involuntary Confessions

Answer 4

Inadmissible. Ex: Law enforcement forced it w/ inducement.

Question 5

Wiretapping, Eavesdropping, and Surveillance

Answer 5

Any evid obtained in violation of GA wiretapping statute is inadmissible except to show violation of the statute

Question 6

Defendant Proof of Character

Answer 6

Other character witnesses are limited to reputation or opinion– Georgia allows testifying criminal defendants to testify to SA.

Question 7

Shield Rule for SA victims

Answer 7

Criminal Only
Info about sexual assault of victims not admissible as direct or on cross.
No evidence of past sexual behavior

Exceptions: Prove source of injury/ physical evidence; prior sexual acts with Def.; Consent. Also when offered by prosecution. Must file motion describing evidence at least 3 days prior to trial.

Question 8

Notice of Relevant Acts

Answer 8

Not required when such evidence is offered to prove: 1) circumstances surround crime; 2) motive; or 3) prior difficulties bt alleged and victim.

Question 9

D’s Past Gang Activity

Answer 9

GA allows evidence of prior gang activity.

Question 10

Judicial Notice

Answer 10

No proof needed: territory of states, laws of nations, laws of GA; law of US; customs of merchants; admiralty/ maritime courts; constitution and hx of GA gov’t; similar matters of legislative fact

Question 11

Jury View of Scene

Answer 11

Used to hold that a view isn’t evidence and a jury decision can’t be based on that
Now there’s a distinction bt ‘evidentiary view’ and ‘scene view’. Scene isn’t used as evidence, but evidentiary can be used for the verdict (mostly thought of as evidence too large to be in court)

Question 12

Admissibility of Polygraph Tests

Answer 12

Admissible only w/ stipulation by defense and state– without stip not admissible.

Question 13

Authentication

Answer 13

In GA, photo/ video/ recording admissible despite objection even if authenticating witness isn’t available if court finds that it is reliably showing facts offered.

Question 14

Unattended camera/ recording device

Answer 14

Admitted if: tends to show reliability of the facts for which it is offered; and the date and time have been recorded on the item with the events depicited.
-Date and time must be clear or goes to weight evid is given (doesn’t preclude though)

Question 15

Authentication of Medical bills

Answer 15

In civil case, bills may be authenticated by testimony (that they related to injuries and were given)
-Not necessary for expert to testify they were reasonable.

Question 16

Self-Authentication of Records

Answer 16

Normally, must bear a seal if self-authenticating.

-GA records are admissible with a written certification though, no seal required.

Question 17

Competency of a Child

Answer 17

Dependent children/ child victims are competent to testify (even if don’t understand oath).
– Still can be challenged on competency in other senses

Question 18

Dead Man Acts

Answer 18

Repealed in GA

= Can’t testify as to comm w/ a deceased.

Question 19

Refreshing Recollection before taking stand

Answer 19

Trial judge can’t order disclosure of materials used to refresh recollection prior to taking the stand.

Question 20

Opinion Testimony of Lay Witnesses

Answer 20

In GA, a witness may give opinion as to the value of property, even if she is not an expert or dealer in the article in question, if it is shown that the witness had an opportunity to form a reasoned opinion

Question 21

Opinion Testimony by Expert Witnesses

Answer 21

In criminal cases, expert opinions are admissible on skill/trade q’s.
-trial court determines if meets scientific stage of verifiable certainty for admissibility.

In Civil, GA applies to federal standards for admissibility of expert testimony.

Question 22

Expert in Professional malpractice matters

Answer 22

Expert must be licensed to practice in that state
-Med Mal– must have practiced/ taught for 3 of the last 5 rs to get to needed level of knowledge. Member of same profession.

Drs can testify on behalf of nurses for the most part.

Question 23

Cross Examination

Answer 23

Broad Scope. Right to thorough and sifting cross on any relevant topic.

Extent rests w/ judge– can be curtailed when irrelevant.

Question 24

Extrinsic Evidence of Prior Inconsistent Statement

Answer 24

Extrinsic evid of prior inconsistent statement not admitted unless witness given opp to first explain/ deny statement. (fed rule just need to be given chance to explain at some point)

• can come in as substantive evidence. Not limited in value to only impeachment

Question 25

Conviction of a crime to impeach

Answer 25

Evidence of final adjudication of guilt/ eventual discharge can’t be used to impeach

0Can’t impeach based on plea of nolo contendere

Question 26

Testimonial Privileges on public policy grounds

Answer 26

GA exlcudes evidence of the following on public policy grounds:

• Attorney- client comms
• Husband/wife comms
• Communications among grand jurors
• secrets of state
• Communications bt psychiatrist and patient
• Comms bt psychologist and patient
• Patient and social worker, nurse, therapist, or counselor; and
• Comms among these professionals

Question 27

Assertion of Privilege

Answer 27

Asserting privilege can’t be used against them in criminal trial.
-In Civil case, can be used to draw a neg inference (disclosing would be against their interest)

Question 28

Physician Patient Privilege

Answer 28

No PPP in GA. But Ga protects confidentiality of medical information.

Question 29

Mental Health Privilege/ Psychiatrist-Patient Privilege

Answer 29

Applies even when the patient’s injuries are applicable/ at issue.
-No PPP when psychiatrist is appointed by court for the purpose of evaluating mental state. Not seeking mental health treatment.

Question 30

Spousal Immunity

Answer 30

Privilege can be asserted in GA if marriage was entered into for the purpose of preventing testimony

Can’t be compelled to give evidence in criminal case for or against each other.

Privilege is held by witness

Question 31

Privilege for Confidential Marriage Communications

Answer 31

In GA, privilege belongs to communicator-spouse and is perpetual. Protected forever. No waiver if they are used as a witness if it doesn’t open the door to confidential matters.

Question 32

When marital privileges don’t apply

Answer 32

In GA, marital privileges don’t apply in proceedings where D is charged with a crime against a child

• Also, no marital priv when charged w/ crime v. spouse or when charged w/ damage to couple’s property.
• Doesn’t apply in dependency proceedings.
• No fraud/ joint crime exception

Question 33

Privilege Against Self Incrimination

Answer 33

• Very broad in GA. No requirement to testify when something can incriminate. Especially when purpose is just to affect credibility.
• Only when MATERIAL to issues in the case.

Question 34

Clergy Penitent Privilege

Answer 34

Not waived if penitent has other individuals present for counseling purposes.

Question 35

Professional Journalist Privilege

Answer 35

Newspeople have qualified priv against disclosure of info obtained for their work in a proceeding where privilege is being asserted by someone who isn’t a party unless waived or relevant; can’t be obtained in other means; and nec for presentation of case.

Question 36

Court Calling a Witness

Answer 36

Court may call a witness on its own motion: court appointed expert; witness re competency of a party; and child witnesses.

May call others with consent of all parties.

Question 37

Prior Statements by Witness

Answer 37

Out of court statements of testifying witness isn’t hearsay. Generally inadmissible as bolstering testimony.

Out of court statement generally admissible as substantive evidence only if: prior inconsistent statement that attacks cred; prior consistent statement that helps cred; prior statement of identification; or falls within hearsay exception.

Question 38

Admissions by a Party Opponent

Answer 38

In GA, when an admission is given in evidence by one party, the other part has the right to have the whole admission and all the conversations connected with it admitted into evidence.

Question 39

Statements of Gov’t Agents

Answer 39

GA clarifies not admissions of the state in a criminal case.

Question 40

Conspirators in GA

Answer 40

1. Statements made by a conspirator during concealment phase may not be admissible against co-conspirators
2. May even apply if not charged with conspiracy.

Question 41

Present State of Mind

Answer 41

GA limits statements of intent to the declarant’s own intent of third persons.

Ex: “with Sam” would be excluded from “i’m going to NY w/ Sam”

Question 42

Declarations of Physical Conditions

Answer 42

GA may admit a child abuse victims’ statements that identify the abuser. to have this come in under medical exception need reliability factors: motive to be consistent with purpose of promoting treatment; and content of the statement is of a type reasonably relied on in treatment/ diagnosis.

Question 43

GA Public Records

Answer 43

Public records (to be admissible) must fall within GA public records exception– not under business records exception.

Question 44

Learned Treatises

Answer 44

In GA, exception applies only on cross of an expert– not relied upon during direct examination.

Question 45

Child’s Description of Sexual Contact or Physical Abuse

Answer 45

Out of court statement by child under 16 describing sexual act is admissible in evidence by testimony of the person to whom statement was made.

Need: Notice to adverse party; must be subject to cross; and child must testify at trial (unless wavied)

Question 46

Medical Reports

Answer 46

Medical report admissible in civil case involving injury/ disease.

Must be signed/ dated by examining dr/ professional.

Report/ notice of intention to introduce must be given 60 days before trial.

Can cross person signing report and to present rebuttal testimony.

Question 47

Conclusive Presumptions

Answer 47

Termed Estoppels in GA (not favored)

Estoppels include presumptions in favor of: record of judgment; proper conduct of courts; proper conduct of other officers of the law after the lapse of time has rendered dangers to open investigation ; ancient docs more than 30 yrs old; recitals in deeds; landord’s title; admissions upon which other parties have acted.

To use presump: must have acted w/ good faith and diligence.

Question 48

Presumption from Failure to Produce Evidence

Answer 48

Rebuttable presump arises that charge is well founded if have evidence and don’t use that to help case.

Doesn’t tend to be applicable to criminal cases.

Question 49

Presumption from Failure to Answer Business Letter

Answer 49

Duty to answer a letter in a reasonable time, when required to answer. Otherwise may admit what’s in letter and adopt it.

Question 50

Presumption of Payment of Check

Answer 50

Copy of check with bank statement creates presumption check has been paid.