Evidence

Question 1

What is the Federal Rule Regarding Evidence?

Answer 1

Evidence is admissible if it is relevant and not unduly prejudicial, confusing, or a waste of time.

GA follows the same general rules.

Question 2

Excluding Relevant Evidence

Answer 2

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

Question 3

What is the Federal Rule Regarding Hearsay?

Answer 3

Hearsay is generally inadmissible unless an exception applies.

Georgia recognizes all federal hearsay exceptions but also has additional exceptions:

Child Hearsay Exception: Allows hearsay statements of children under 16 in abuse cases if the court finds sufficient guarantees of trustworthiness.

Medical Diagnosis Exception: Broader than the federal rule; Georgia allows statements made by anyone (not just the patient) if made for medical diagnosis or treatment.

Also: -Georgia law includes exceptions for business records, dying declarations, and spontaneous statements.

Question 4

Character Evidence in Criminal Cases

Answer 4

Character evidence is inadmissible to prove conduct, except in limited circumstances (e.g., criminal defendant’s pertinent trait).

Can be brought in - in criminal cases if the Defendant opens the door with evidence of his good character

The D can only use evidence of reputation or opinion to show the good character.

I can prove my character for my:
1. for my peacefullness
2. for my honest and trustworthiness

Match up the crime with the way that I’m admitting evidence of my good character.

If I as the D bring my character in, the P can bring evidence of bad character in to rebut this.

Georgia is more permissive in criminal cases, allowing character evidence of the victim in certain circumstances, including violent crime cases, to show the victim was the aggressor.

Question 5

MIMIC Rule

Answer 5

1. Motive
2. Intent
3. Mistake
4. 4. ID
5. Common Plan or Scheme

Only applies if they are talking about it in the facts

Question 6

Character Evidence in Civil Cases

Answer 6

(I.e. Bad things the plaintiff or defendant did in the past - usually the D)
Inadmissable because its too prejudicial.

Exceptions Will be admissable when it is at issue in the case.
1. Defamation
2. Child Custody
3. Negligent Entrustment
4. Misrepresentation or Fraud

How it is brought in
1. opinion
2. reputation
3. specific acts

Question 7

Impeachment

Answer 7

A witness’s credibility can be impeached with prior convictions for crimes involving dishonesty or felonies if not too remote in time.

Georgia allows impeachment by prior convictions without the federal balancing test but limits impeachment for juvenile offenses.

Question 8

Opinions by Experts

Answer 8

Expert testimony is admissible if it is reliable and relevant under the Daubert standard.

Georgia follows the Daubert standard but adds that experts must base opinions on facts or data admissible in court (e.g., not hearsay).

Question 9

What is the Daubert Standard?

Answer 9

Under the Daubert Standard, judges act as “gatekeepers” to evaluate whether the methodology and principles underlying an expert’s testimony are scientifically valid and applicable to the facts of the case. The following factors are typically considered:

Testability: Can the theory or technique be tested? Has it been tested?
Peer Review: Has the theory or technique been subjected to peer review and publication?
Error Rate: Is there a known or potential error rate associated with the method?
Standards and Controls: Are there established standards governing the technique’s operation?
General Acceptance: Is the theory or technique widely accepted within the relevant scientific community?

Question 10

What is spousal privilege?

Answer 10

Protects confidential communications made during a marriage.

Georgia does not recognize a spousal communication privilege in criminal cases, though spouses may refuse to testify in some circumstances.

Question 11

Attorney/Client Privilege

Answer 11

Attorney-client privilege in Georgia extends to communications with corporate officers acting within their roles.

Question 12

Spoliation Doctrine

Answer 12

In Georgia, spoliation of evidence can lead to adverse inferences against the party responsible for its destruction.

Parties are required to take reasonable steps to preserve evidence in anticipation of litigation.

Where spoliation (destruction or loss of evidence) is proven, a rebuttable presumption is raised that the evidence lost was favorable to the other party.

Spoliation can only occur after the owner of the property is aware of a potential lawsuit.

The owner has the right to deal with their property as they see fit unless there is a potential lawsuit.

Question 13

Remedies for Spoliation

Answer 13

The trial court can dismiss the case.

The trial court can prevent expert witnesses from testifying about the evidence.

The trial court can charge the jury that the evidence would have been harmful to the party who destroyed it.

Question 15

Relevance

Answer 15

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

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

Question 16

Excluding Relevant Evidence

Answer 16

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

Question 17

Hearsay

Answer 17

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

Question 18

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

Answer 18

CELVIS

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

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

Question 19

Statements by a Party Opponent

Answer 19

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

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

Question 20

Hearsay exceptions when the declarant’s unavailability is immaterial

Answer 20

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

Question 21

Hearsay exceptions when the declarant is unavailable

Answer 21

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

Question 22

Declarant’s Unavailability

Answer 22

PRISM —

Privilege,
Refusal,
Incapacity,
Subpoena, or
Memory.

Question 23

Habit Evidence

Answer 23

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

Question 24

Character evidence of other crimes, wrongs, or acts

Answer 24

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

Question 25

Character Evidence General Rule

Answer 25

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

Question 26

Character Evidence Exceptions in a Civil Trial

Answer 26

Character evidence is only admissible in civil cases in which **character is an essential element of the case.** Character is an essential element in **DNICE** cases — **D**efamation, **N**egligent entrustment/hiring/supervision, **I**mmigration, **C**hild custody, **E**ntrapment. Can only be introduced in the form or reputation, opinion, or specific acts.

Question 27

Character Evidence Exceptions in a Criminal Trial

Answer 27

Character evidence is **inadmissible in the prosecution’s case in chief**, however, the ∆ can **“open the door”** by introducing evidence of their own good character. Then, the prosecution can rebut with their own character evidence for the same trait. A ∆ may also offer character evidence of a victim’s violent character, in which case the prosecution can rebut with evidence of the victim’s good character for the victim, and bad character of the ∆. Evidence must be introduced in the form of **reputation or opinion on direct examination**, or **specific acts during cross-examination**.

Question 28

Character Evidence of Prior Sexual Conduct

Answer 28

The general rule is the **rape shield law**, which excludes evidence of a victim’s sexual behavior/history/predisposition. In civil cases, evidence of prior sexual behavior is admissible if the *probative value is greater than the potential of harm to the victim* or unfair prejudice to any party. In criminal cases, evidence is admissible to show *consent or the source of semen/injury*.

Question 29

Public Policy Exclusions of Relevant Evidence

Answer 29

Otherwise relevant evidence may be excluded due to public policy, including evidence of: 1. Subsequent remedial measures, 2. Compromises or offers to settle, 3. Payment of medical bills, 4. Pleas or plea discussions (if made directly with the prosecutor), or 5. The existence of liability insurance. However, some of these might be admissible to show **ownership, control, to impeach, or the feasibility of precautions**.

Question 30

Relevance Balancing Test

Answer 30

The court will conduct a comprehensive analysis of various factors in considering whether the evidence’s probative value is substantially outweighed by the risk of unfair prejudice. To determine the probative value, a court will consider how **persuasive** the evidence is, **how material the fact** to be proven is, and if there are **other ways to prove** that fact. To determine how damaging the unfair prejudice may be, the court will consider if a **limiting instruction** can be given, the **likelihood of damage**, and the **severity of the damage**.

Question 31

Expert Opinions in Civil Cases

Answer 31

Georgia courts apply the **Daubert** test to determine if an expert’s testimony/opinion is valid. The court will consider **TAPES** — whether their theory has been **T**ested, if it has general **A**cceptance in the field, if there has been **P**eer review of the theory, if there is a low/high rate of **E**rror, and the existence and adherence to **S**tandards in the field.

Question 32

What can expert witnesses base their opinions on?

Answer 32

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

Question 33

Expert Opinion's on an Ultimate Issue

Answer 33

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

Question 34

Seven Methods of Impeachment

Answer 34

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

Question 35

Collateral Matter Rule

Answer 35

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

Question 36

Prior Convictions to Impeach a Witness

Answer 36

If the **∆ is the witness**, evidence of a prior conviction is admissible to impeach a witness if it is a **felony** (*a crime punishable by death or at least one year in prison*), or a >10 year old conviction in which **dishonesty had to be proven as an element**, as long as the probative value is greater than the prejudicial effect. If the **witness is not the ∆**, the prior conviction is *only admissible if the danger of unfair prejudice does not substantially outweigh the probative value*.

Question 37

10 Year Rule for Impeachment by a Prior Conviction

Answer 37

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

Question 38

6th Amendment Confrontation Clause

Answer 38

Under the 6th Amendment, ∆’s have the right to confront witnesses against them. In a **criminal case** in which the declarant is unavailable, their *testimonial statements* will be **inadmissible if the ∆ has not had the chance to cross-examine/”confront” the witness.** (Not testimonial if made to address an ongoing emergency) Some public policy exceptions may apply, such as witness protection or age.

Question 39

Marital Communications Privilege

Answer 39

Applies in **both civil and criminal** cases, but only to communications made *during the marriage*. The privilege is held by the communicating spouse, who may prevent the other spouse from testifying. Does not apply to crimes or intentional torts committed against one another or their children, divorce proceedings, or joint participation in a crime.

Question 40

Spousal Testimony/Immunity Privilege

Answer 40

Only applies to **criminal** cases, but protects all communications both **before AND during the marriage**. Under the FRE, the privilege is *only held by the spouse being compelled as a witness (the testifying spouse)*. Does not apply to crimes or intentional torts committed against one another or their children

Question 41

Judicial Notice

Answer 41

Where the court accepts a fact as true. A court can take judicial notice of facts that are **not subject to reasonable dispute** because they are either (a) **generally known in the territory**, or (b) **readily determinable** by a source whose accuracy cannot be reasonably questioned. If a party supplies the necessary information, the court **MUST** take judicial notice. A *civil jury* **MUST** take judicially noted facts as true, whereas *criminal juries* do NOT.

Question 42

What types of facts qualify for judicial notice in Georgia?

Answer 42

Facts that are *not subject to dispute* because they are either **common knowledge in the territory**, are **capable of determination** by a source whose accuracy is not reasonably called into question, or legislative facts (below). - The existence and territorial extent of states and their forms of government; - Symbols of nationality; - Laws of all nations; - Laws of the general assemblies of each branch; - Laws of the US and states; - Uniform rules of the court; - Administrative rules; - Customs of merchants; - Admiralty and maritime courts; - Political makeup of Georgia; - All similar matters of legislative fact.

Question 43

Georgia "Open-Cross Examination" Rule

Answer 43

In Georgia, the subject of cross examination is not limited to only things discussed on direct examination. In Georgia, a witness may be cross-examined on any matter relevant to any issue in the proceeding.

Question 44

What is the burden of proof in a civil action?

Answer 44

Generally, the burden of proof is by the **preponderance of the evidence** (*meaning more likely than not*). The burden of proof may be raised to clear and convincing (meaning highly probable or reasonably certain) in healthcare liability claims or surgical suits.

Question 45

Georgia Advanced Notice Requirement for Criminal Cases

Answer 45

The prosecution must provide the ∆ with **reasonable notice of their intent to use MIMIC evidence**, unless excused by the court for a showing of good cause. MIMIC = Motive, Intent, lack of Mistake, Identity, Common scheme or plan.

Question 46

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

Answer 46

Reputation, opinion, or specific acts.

Question 47

When is evidence of a specific act admissible?

Answer 47

When a person's character is an essential element of a charge, claim or defense; If a criminal defendant is testifying about themselves; or On cross examination.

Question 48

Admissibility of a Prior DUI Conviction

Answer 48

Admissibility of a prior conviction for a DUI is admissible if the ∆ **refused to take a blood/urine/breath test** and the conviction is relevant to proving **knowledge, plan, or absence of mistake or accident**; or If the identity of the driver is in dispute in the current case and the evidence is relevant to proving identity.

Question 49

Impeachment by Bias or Self Interest

Answer 49

A witness with a relationship to a party may be impeached for bias if their bias is related to the facts of the case and **shows self-interest or self-preservation motive.** The foundation of bias must be laid outside of the jury's presence.

Question 50

Qualification of Experts in Criminal Cases

Answer 50

Georgia does not apply Daubert or FRE Rule 702 for criminal cases. Instead, the qualification of an expert witness is within the sound discretion of the court. An expert must only be educated in a particular skill or profession and have used a method that has verifiable certainty.

Question 51

Evidence of surrounding circumstances when constructing a contract

Answer 51

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

Question 52

Exceptions to the Parol Evidence Rule in Georgia

Answer 52

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

Question 53

Evidence of Contemporaneous Writings in Georgia

Answer 53

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

Question 54

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

Answer 54

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

Question 55

Continuing Witness Rule

Answer 55

In Georgia, **testimony** given at trial and statements that are read into evidence are **not allowed into the jury room** during deliberation. Testimonial evidence is **meant to be heard once,** when the jury is best able to judge the credibility of the speaker.

Question 56

Georgia "Physician's Shield" Statute

Answer 56

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

Question 57

Evidence of Subsequent Remedial Measures

Answer 57

Evidence of subsequent remedial measures is not admissible to prove - Negligence - Culpable conduct However, evidence of subsequent remedial measures is admissible to prove: - Product liability of a manufacturer

Question 58

Pretrial Disclosures Deadline

Answer 58

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

Question 59

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

Answer 59

No. A statement by a child **under the age of 16** years that describes sexual contact or physical abuse is **admissible through the testimony of the person to whom the statement was made**. The adverse party *must be given pretrial notice*, the *child must testify at trial* (unless this is waived), and the *person to whom the statement was made must be subject to cross-examination.*

Question 60

Dying Declaration

Answer 60

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

Question 61

Present Sense Impression

Answer 61

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

Question 62

Statement against Pecuniary, Penal, or Proprietary Interest

Answer 62

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

Question 63

Statements by a Co-Conspirator

Answer 63

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

Question 64

Prior Inconsistent Statements

Answer 64

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

Question 65

Motion to Recuse

Answer 65

A judge can hear a motion to recuse if they believe that they can reasonably determine whether the motion lacks factual support and are unbiased as to the basis of the motion. DURING TRIAL, a judge cannot comment on the merits of the case or the defendant's guilty, innocence, or character. AFTER VERDICT, the judge has more latitude. Recusal is appropriate only where the judge has a bias against a party or other conflict of interest.

Question 66

Under Georgia law, what type of facts qualify for *judicial notice*?

Answer 66

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.

Question 67

Under Georgia law, what are the **statutory presumptions**?

Answer 67

**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.

Question 68

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

Answer 68

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

Question 69

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

Answer 69

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.

Question 70

What is MIMIC?

Answer 70

* **M**otive * **I**ntent * Absence of **M**istake * **I**dentity, or * **C**ommon plan

Question 71

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

Answer 71

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.

Question 72

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

Answer 72

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

Question 73

Under Georgia law, when is previous DUI convictions admissible?

Answer 73

When * 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.

Question 74

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

Answer 74

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.

Question 75

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

Answer 75

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.

Question 76

Under Georgia law, when are **contemporaneous writings** admissible?

Answer 76

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

Question 77

Does Georgia follow the **continuing witness rule**?

Answer 77

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.

Question 78

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

Answer 78

The **communicating** spouse holds the privilege.

Question 79

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

Answer 79

* 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.

Question 80

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

Answer 80

Yes.

Question 81

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

Answer 81

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.

Question 82

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

Answer 82

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

Question 83

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

Answer 83

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

Question 84

Under Georgia law, what is the **professional journalist privilege**?

Answer 84

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.

Question 85

Under Georgia law, are subsequent remedial measures admissible?

Answer 85

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

Question 86

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

Answer 86

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.

Question 87

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

Answer 87

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

Question 88

Under Georgia law, must a party provide pretrial notice before using the victim's prior sexual behavior?

Answer 88

No. Georgia **only** requires the defense notify the court of the intent to produce evidence of the victim's sexual behavior at the time the defense seeks to introduce it. The court **must** conduct an in camera hearing to determine *if* the evidence is admissible.

Question 89

Under Georgia law, what conditions must be met in order to introduce a defendant's prior sexual conduct in a civil case?

Answer 89

1. A proper purpose for use of the evidence 2. Sufficient proof that the defendant did commit the independent act, and 3. Sufficent similarity or connection between the two incidents so that proof of the former tends to prove the latter. These rules permit the use of a defendant's previous commission of a sexual assault or child molestation as evidence of the defendant's propensity to commit the charged sexual assault or child molestation.

Question 90

Under Georgia law, when must a party submit pretrial disclosures?

Answer 90

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

Question 91

Under Georgia law, may a plaintiff use a doctor's statements of sympathy in a medical malpractice case?

Answer 91

A statement of or conduct expressing sympathy, regret, apology, commiseration, condolence, compassion, mistake, error, or general sense of benevolence made by a healthcare provider or a healthcare provider's agent or employee to a patient, a relative of the patient, or a representative of the patient that relates to an unanticipated outcome is **inadmissible**. The statement is **not** an admission of liability or an admission against interest.

Question 92

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

Answer 92

No. A statement by a child **under the age of 16 years** that describes **sexual contact or physicial abuse** is admissible through the testimony of the person to whom the statement was made. The adverse party **must** be given pretrial notice, the child **must** testify at trial (unless this is waived), and the person to whom the statement was made **must** be subject to cross-examination.

Question 93

Under Georgia law, how may a declarants statments be used *if* the declarant is not available at trial?

Answer 93

If a hearsay statement is admitted and the declarant does not tesitfy at trial, then other statements of the declarant **are** admissible to impeach or rehabilitate the declarant if the other statements qualfiy as **prior inconsistent statements** or **prior consistent statements**.

Question 94

Under Georgia law, what is required to admit prior inconsistent statements?

Answer 94

A prior inconsistent statement need not be made under oath.

Question 95

Under Georgia law, are co-conspirator statements considered hearsay?

Answer 95

No. A statement made **during the concealment phase** of a conspiracy is nonhearsay. A conspiracy **need not be charged** to make a statement admissible as nonhearsay.

Question 96

Under Georgia law, what is required to allow a **dying declaration**?

Answer 96

A declarant **must** actually die for the statement to be admissible as a dying declaration.