Evidence Distinctions

Question 1

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

Answer 1

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 2

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

Answer 2

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

Question 3

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

Answer 3

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.

Question 4

Under Georgia law, what are the statutory presumptions?

Answer 4

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 5

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

Answer 5

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.

Question 6

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

Answer 6

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

Question 7

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

Answer 7

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 8

What is MIMIC?

Answer 8

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

Question 9

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

Answer 9

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 10

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

Answer 10

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

Question 11

Under Georgia law, when is previous DUI convictions admissible?

Answer 11

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 12

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

Answer 12

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 13

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

Answer 13

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

Question 14

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

Answer 14

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.

Question 15

Under Georgia law, are surrounding circumstnaces permitted?

Answer 15

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

Question 16

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

Answer 16

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 17

Under Georgia law, when are contemporaneous writings admissible?

Answer 17

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

Question 18

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

Answer 18

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

Question 19

Does Georgia follow the continuing witness rule?

Answer 19

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 20

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

Answer 20

The communicating spouse holds the privilege.

Question 21

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

Answer 21

• 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 22

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

Answer 22

Yes.

Question 23

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

Answer 23

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 24

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

Answer 24

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

Question 25

How does Georgia law define psychiatrist?

Answer 25

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.

Question 26

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

Answer 26

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

Question 27

Under Georgia law, what is the professional journalist privilege?

Answer 27

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 28

Under Georgia law, are subsequent remedial measures admissible?

Answer 28

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 29

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

Answer 29

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 30

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

Answer 30

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

Question 31

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

Answer 31

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 32

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

Answer 32

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 33

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

Answer 33

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

Question 34

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

Answer 34

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 35

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

Answer 35

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 36

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

Answer 36

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 37

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

Answer 37

A prior inconsistent statement need not be made under oath.

Question 38

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

Answer 38

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 39

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

Answer 39

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