Evidence

Question 1

Testifying criminal D proving character

Answer 1

May testify to specific acts to establish his good character

Question 2

Criminal D’s prior gang activity

Answer 2

Where D is accused of conducting or participating in criminal gang activity, evidence of D’s commission of criminal gang activity is admissible and may be considered on any matter to which it is relevant

Question 3

Jury view of scene

Answer 3

The view is not evidence; only to help the jury better understand the evidence.

Question 4

Polygraph tests

Answer 4

Admissible only pursuant to stipulation by D and by the state

Question 5

Authentication of photo

Answer 5

Admissible over an authentication objection despite unavailability of the authenticating witness if the court determines that the item tends to show reliably the facts for which it is offered.

Question 6

Unattended camera or recording device

Answer 6

Admitted if (1) the court determines it tends to show reliably the facts for which it is offered and (2) it has a time stamp.

Question 7

Competency – infants

Answer 7

Any case involving a dependent child (i.e., one without proper parental care) and in any criminal case in which a child was a victim of or witness to a crime, the child is competent to testify even if he does not understand the nature of the oath. Still subject to competency challenge on other grounds (e.g., lack of use of reason because of intellectual disability).

Question 8

Use of memo by a witness – use in cross-examination

Answer 8

Neither the attorney/client privilege nor attorney work product protection are waived by using covered materials to prepare a witness before the witness takes the stand. Thus, the judge cannot order the disclosure of such materials.

Question 9

Lay witness opinion – value of land

Answer 9

Permissible so long as the opinion is reasoned

Question 10

Expert opinion testimony – relevance

Answer 10

Criminal case: admissible on any question of science, skill, trade, or like question; judge determines whether a particular procedure or technique has reached a scientific stage of verifiable certainty

Civil case: apply the FRE

Question 11

Expert qualification –professional malpractice

Answer 11

Expert testifying to standard of care must be licensed to practice in the state in which he was practicing or teaching at the time of the alleged act or omission.

Med mal: expert must have also actively practiced or taught for at least 3/5 years prior with sufficient frequency to establish an appropriate level of knowledge relative to the procedure or treatment at issue

Question 12

Prior inconsistent statements – foundation for extrinsic evidence & effect

Answer 12

Not admissible unless the witness is FIRST given opportunity to explain or deny the statement

Admissible as substantive evidence and for impeachment

Question 13

Conviction of crime –pleas

Answer 13

Cannot impeach a witness based on a nolo contendere plea

Question 14

Testimonial privileges

Answer 14

(1) Attorney/client
(2) Marital communications
(3) Communications among grand jurors
(4) State secrets
(5) Psychiatrist/patient
(6) Psychologist/patient
(7) Social worker/client
(8) Communications among professionals about client

Question 15

Comment on privilege

Answer 15

Criminal case: party’s assertion of privilege may not be used against them

Civil case: party’s assertion of privilege may be used by the trier of fact to draw a negative inference against the party

Question 16

Physician/patient privilege

Answer 16

Does not exist in GA

Question 17

Psychiatrist/patient privilege

Answer 17

Does not exist if the doctor is appointed by the court to evaluate a person’s mental state

Question 18

Spousal immunity

Answer 18

Does not apply when (1) spouse is charged with a crime against any minor child, but the spouse will be compelled to give evidence only on the specific act for which D is charged; and (2) when D is charged with crime against spouse or spouse’s property

Question 19

Marital communications privilege

Answer 19

Belongs to the communicating spouse and is perpetual (i.e., cannot be waived by deceased spouse’s administrator or by the surviving spouse)

Question 20

Self-incrimination privilege

Answer 20

Very broad in GA; but witness is required to answer questions tending to bring infamy, disgrace, or public contempt upon himself or his family if the proposed evidence is material to the issues in the case

Question 21

Clergy/penitent privilege

Answer 21

Not waived if the penitent has others present for counseling purposes

Question 22

Professional journalist privilege

Answer 22

Qualified; can be wived if the information is (1) material and relevant; (2) cannot be obtained through other reasonable methods; and (3) necessary for proper presentation of the case.

Question 23

Court-called witnesses

Answer 23

Court can call (1) court-appointed expert witnesses; (2) witness re: competency of a part; and (3) child witnesses. Any other witnesses can be called with the consent of all parties.

Question 24

Rule against hearsay

Answer 24

Out-of-court statements of a testifying witness are NOT hearsay, but generally not admissible as cumulative and/or improper bolstering.

Admissible if (1) it is prior inconsistent statement; (2) it is a prior consistent statement that logically rebuts an attack on the witness’s credibility; or (3) it falls within some hearsay exception.

Question 25

Admissions

Answer 25

When given in evidence by one party, the other has the right to have the whole admission and all the conversations connected with it admitted into evidence

Question 26

Vicarious admissions –government agents

Answer 26

Statements of government agents are not admissions of the state in a criminal case

Question 27

Statements of co-conspirators

Answer 27

Statements made by conspirator during the concealment phase may be admissible against co-conspirators if made in furtherance of the conspiracy

May apply even if the persons involved have not been charged with conspiracy

Question 28

Present state of mind

Answer 28

Limits statements of intent to the declarant’s own intent, not the intent of third persons (e.g., “I’m going to NYC with Sam” would exclude “with Sam”)

Question 29

Statements for diagnosis or treatment –statements by victims of child abuse identifying the abuser

Answer 29

To be admissible under the medical exception, (1) declarant’s motive must have been consistent with the purpose of promoting treatment; and (2) the content of the statement is of a type reasonably relied on by a physician in treatment or diagnosis.

Question 30

Public records

Answer 30

Admissible only under public records exception –cannot use the business records exception.

Question 31

Learned treatise

Answer 31

Applies only on cross-examination of an expert (not when the expert relied on the treatise during direct)

Question 32

Testimony re: child’s description of sexual contact or physical abuse

Answer 32

Out-of-court statement by a child younger than 16 years old describing act of sexual contact or physical abuse performed with or on the child, or with or on another person in the presence of the child, is admissible by testimony of the person to whom the statement was made.

Requirements: (1) proponent must provide notice to adverse party prior to trial of intent to use statement; (2) person to whom statement was made must be subject to cross-examination re: statement at time of testimony; and (3) child must testify at trial, unless such testimony is forfeited or waived by the adverse party.

Question 33

Medical reports

Answer 33

Civil case involving injury or disease: narrative form admissible so long as it purports to represent the history, exam, diagnosis, treatment, prognosis, or interpretation of tests by the person signing the report.

Must be signed and dated by the examining or treating doctor and notice must be given to other party at least 60 days before trial. Adverse party can cross-examine and present rebuttal testimony.