Georgia Evidence

Question 1

Subsequent Remedial Measures

Answer 1

Under federal and Georgia law, evidence of subsequent remedial measures (safety measures or repairs) after an accident is inadmissible to prove negligence or culpable conduct.

Under the Federal Rules, such evidence is also inadmissible to prove a defect in a product or its design in a products liability action based on a theory of strict liability.

In Georgia, evidence of subsequent remedial measures is admissible in strict liability cases.

Question 2

Statements and Conduct by Health Care Providers in Malpractice Cases

Answer 2

In Georgia civil cases alleging an unanticipated outcome of medical care, statements or conduct expressing sympathy, apology, regret, mistake, error, or a general sense of benevolence made by a health care provider to the patient, the patient’s representative, or the patient’s relative are inadmissible and do not constitute an admission of liability.

Question 3

Involuntary Confessions

Answer 3

The Georgia evidence rules specifically provide that involuntary confessions are inadmissible. This is true even if the statement would otherwise be admissible under the hearsay rule (for example, because it qualifies as a statement by a party-opponent).

A confession may be considered involuntary if law enforcement or the prosecution induced it by giving the accused even the slightest hope of benefit (for example, reduced charges, a lighter sentence, immunity) or the remotest fear of injury.

Question 4

Wiretapping, Eavesdropping, and Surveillance

Answer 4

In Georgia, any evidence obtained in violation of Georgia’s wiretapping and surveillance statutes is inadmissible except for the purpose of proving a violation of the statute.

Question 5

Criminal History Record Information

Answer 5

In a Georgia civil proceeding against an employer, its employees, or its agents based on the conduct of a current or former employee, a person’s criminal history record information is not admissible in any of the following circumstances:

• The nature of the criminal history record information is not relevant to the facts of the case or to the veracity of the witness;
• The criminal history information is for an arrest or charge that did not result in a conviction; or
• Prior to the act giving rise to the proceeding, the criminal history record information was restricted or sealed by law, or a pardon for such conduct was granted

In other words, to be admissible in this situation, the criminal history record must be relevant, must have resulted in a conviction, and must not have been sealed or subject to a pardon prior to the act giving rise to the proceeding.

Question 6

How Defendant Proves Character in a Criminal Case

Character Evidence

Answer 6

Under the Federal Rules, a defendant may prove their own good character by introducing reputation testimony or opinion testimony. (Usually, the character witness is some other person, but the defendant can give reputation or opinion testimony about their own character.) Evidence of the defendant’s specific acts of conduct is inadmissible to prove the defendant’s good character.

In Georgia, the rule is different where the witness is the testifying criminal defendant. The defendant in a criminal case may testify as to their own specific acts to establish their good character for a pertinent trait. Other character witnesses are limited to reputation and opinion testimony.

Question 7

Sexual Assault Victim’s Past Behavior

Character Evidence

Answer 7

Under the Federal Rules, in any civil or criminal proceeding involving alleged sexual misconduct, evidence offered to prove the sexual behavior or sexual disposition of the victim is generally inadmissible, subject to certain exceptions.

The equivalent Georgia rule applies to criminal cases only (it does not apply in civil cases). The rule provides as follows:

Scope: The Georgia rule is more specific than its federal counterpart, but the scope is basically the same. In a prosecution for a sex offense, evidence relating to the past sexual behavior of the victim is generally not admissible, either as direct evidence or on cross-examination of the victim or other witnesses. Evidence of past sexual behavior includes evidence of the victim’s general reputation for promiscuity, mode of dress, marital history, nonchastity, or sexual mores (customs or attitudes) contrary to the community standards.

Exceptions: The exceptions are almost the same as under the Federal Rule. The following evidence is admissible:

• Specific instances of the victim’s sexual behavior with the defendant, if the evidence supports an inference that the defendant could have reasonably believed that the victim consented to the conduct at issue in the case
• Specific instances of the victim’s sexual behavior with someone other than the defendant, if offered to prove that the person was the source of physical evidence of injury
• Specific instances of the victim’s sexual behavior with any person where such evidence is offered by the prosecution (note: this exception is specific to Georgia)
• Any other evidence whose exclusion would violate the defendant’s constitutional rights

If a party intends to offer evidence for an allowable purpose, the party must file a motion describing the evidence at least 3 days before trial (unless the court, for good cause, sets a different date).

Question 8

Notice Requirement for MIMIC Evidence

Character Evidence: Other Misconduct for Non-Character Purposes

Answer 8

MIMIC: Motive, Intent, Abence of Mistake, Identity, Common Scheme

Under the Federal Rules, in a criminal case, the prosecutor must provide “reasonable” notice of any evidence of this type that the prosecutor intends to offer at trial.

The Georgia rule also requires the prosecution to provide notice, but it further provides that notice is not required when such evidence is offered to prove: (1) the circumstances immediately surrounding the charged crime, (2) motive, or (3) prior difficulties between the accused and the alleged victim.

Question 9

Criminal Defendant’s Other Gang Activity

Character Evidence

Answer 9

Georgia enacted an additional rule allowing for the admission of evidence of a criminal defendant’s prior gang activity.

In a criminal proceeding in which the defendant is accused of conducting or participating in criminal gang activity, evidence of the defendant’s other commission of criminal gang activity is admissible and may be considered for its bearing on any matter to which it is relevant.

The prosecution must disclose such evidence to the defense at least 10 days in advance of trial (unless the court modifies or excuses this requirement for good cause).

Question 10

Authentication of Photos, Videos, and Audio Recordings

Answer 10

In General: Under federal and Georgia law, any witness who is familiar with the scene depicted can authenticate a photograph or video. It is not necessary to call the photographer as a witness.

In Georgia, where the authenticating witness is unavailable, a photograph, motion picture, videotape, or audio recording is still admissible over an authentication objection if the court determines, based on competent evidence presented to the court, that such an item tends to reliably show the facts for which it is offered.

Unattended Camera or Recording Device: Under federal law, if a photograph or video is taken from an unattended camera or recording device, the photograph or video may be admitted upon a showing that the camera was properly operating at the relevant time and that the photograph or video was downloaded from that camera or developed from film obtained from that camera.

In Georgia, a photograph, film, videotape, or audio recording from an unattended camera or recording device will be admitted if:
1. the court determines that it tends to reliably show the facts for which it is offered; and
2. the date and time have been recorded on the item contemporaneously with the events depicted therein.

Any discrepancy in the date or time stamp goes to the weight to be given the evidence; it does not preclude admissibility. For example, if the date or time stamp is made contemporaneously with the events in the video, but the date or time is inaccurate (for example, the time was off by an hour), the video is admissible but the fact finder will have to determine how much weight to give the evidence.

May Be Authenticated in Other Ways: The Georgia rule specifies that the methods described above are not the only ways to introduce photographs, motion pictures, videotapes, and audio recordings; rather, they merely supplement other lawful methods.

Question 11

Medical Bills

Authentication

Answer 11

In a Georgia civil case involving disease or injury, medical bills may be authenticated by the testimony of the patient or the patient’s caregiver that the bills were received and that they relate to the patient’s injuries.

It is not necessary for an expert witness to testify that the bills were reasonable or necessary.

Question 12

Self-Authenticating Documents

Authentication

Answer 12

The general rule under federal and Georgia law is that a self-authenticating public record must bear a seal, and those that do not bear a seal must be certified under seal.

However, under the Georgia rule, Georgia state, county, and municipal records are admissible with a written certification; no seal is required.

Question 13

Polygraph Tests

Authentication

Answer 13

Results of polygraph tests are generally inadmissible in federal court to prove the truth of the results. Similarly, the Georgia Supreme Court has specifically held that the results of polygraph tests are admissible only pursuant to stipulation by the defense and the state. They are not admissible in the absence of such stipulation.

Question 14

Children

Competency of Witnesses

Answer 14

The Georgia rules specifically provide that in the following cases, a child is competent to testify even if they don’t take an oath or affirmation:
1. a dependency case (meaning, where the child was abused or abandoned or is without proper parental care); or
2. a criminal case in which the child was a victim or witness.

However, the child is still subject to a competency challenge on grounds other than not giving an oath or affirmation (for example, lack of use of reason because of intellectual disability).

Question 15

Dead Man Acts

Competency of Witnesses

Answer 15

Some states have “Dead Man Acts” that make an interested person incompetent to testify to a personal transaction or communication with a deceased, when such testimony is offered against the representative or successors in interest of the deceased.

Georgia does not have a Dead Man Act.

Question 16

Scope of Cross-Examination

Answer 16

Georgia permits a very broad scope for cross-examination. Each party has a right to a “thorough and sifting” cross-examination of the witnesses called against them, and a witness may be cross-examined on any matter relevant to any issue in the proceeding.

The scope of cross-examination, however, is not unlimited. The extent necessarily must rest largely within the discretion of the trial judge to keep the questioning within reasonable bounds. The judge can limit the cross-examination if the inquiry is not relevant or material.

Question 17

Refreshing Recollection
Where Recollection is Refreshed Before Testimony

Answer 17

Under federal and Georgia law, a witness’s recollection may be refreshed while they are on the stand or before they take the stand.

Where the witness’s recollection is refreshed with a writing while the witness is on the stand, the adverse party is always entitled to have the writing produced at trial so that they can use it.

Where thewitness’s recollection is refreshed with a writing before the witness takes the stand, the adverse party is entitled to have the writing produced at trial only if the court decides that justice requires it. In other words, the judge has discretion to order the party to produce the writing.

Georgia’s version of this rule clarifies that 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 trial judge must not order the production of materials that are privileged or subject to work product protection.

Question 18

Market Value of Property

Opinion Testimony of Lay Witness

Answer 18

Under federal and Georgia law, opinion testimony by a lay witness is admissible when it is:
1. rationally based on the witness’s perception;
2. helpful to a clear understanding of the witness’s testimony or to the determination of a fact in issue; and
3. not based on scientific, technical, or otherwise specialized knowledge.

The Georgia rule specifies a witness may give their opinion as to the market value of property, even if they are not an expert or dealer in the article in question, if it is shown that they had an opportunity to form a reasoned opinion.

Question 19

Opinion Testimony by Expert Witness

Answer 19

Qualification as Expert: Under federal and Georgia law, all expert witnesses must be qualified by either special knowledge, skill, experience, training, or education. Georgia has imposed additional specific requirements for malpractice cases:

All Professional Malpractice Cases: In all professional malpractice actions in Georgia (for example, medical malpractice, legal malpractice, and so on), an expert testifying as to a standard of care must be licensed to practice in the state in which they were practicing or teaching at the time of the alleged act or omission.

Additional Requirements for Medical Malpractice Cases: In a medical malpractice action, the expert must also have actively practiced or taught, for at least 3 of the last 5 years, with sufficient frequency to establish an appropriate level of knowledge relative to the procedure, diagnosis, or treatment alleged to have been performed negligently.

The expert generally must be a member of the same profession as the defendant. However, a medical doctor (M.D.) can testify as to the standard of care of a doctor of osteopathy (D.O.), and vice versa. Additionally, a physician with sufficient experience and knowledge may testify as to the standards of care for nurses and other specified health care providers.

Reliability—Judge as Gatekeeper: Under federal and Georgia law, courts determine the reliability of all expert testimony (scientific or otherwise). Using the Daubert standard, courts have discretion to consider a wide variety of factors in making this determination (main factors include testing; rate of error; general acceptance by others in the field; and peer review and publication).

Question 20

Witnesses Called by the Court

Answer 20

Under the Federal Rules, the court may call its own witnesses.

In Georgia, the court may call the following types of witnesses on its own motion:
1. court-appointed expert witnesses,
2. witnesses regarding the competency of a party, and
3. child witnesses.

The court may call other types of witnesses only with the consent of all parties.

Question 21

Impeachment with Prior Inconsistent Statements

When Admissible as Substantive Evidence

Answer 21

Prior inconsistent statements are admissible for impeachment purposes, but often a question arises as to whether these statements are also admissible as substantive evidence (to prove the facts asserted). In other words, when can a witness’s prior inconsistent statement “The light was red” be offered to prove that the light was in fact red?

Under federal law, a prior inconsistent statement is usually hearsay and therefore inadmissible as substantive evidence unless it falls within a hearsay exception. However, where the declarant is testifying at trial and subject to cross-examination about the prior inconsistent statement, and the statement was made under oath at a prior proceeding, it is admissible nonhearsay and may be admitted as substantive evidence.

In Georgia, where the declarant is testifying at trial and subject to cross-examination about the prior inconsistent statement, the statement is admissible as substantive evidence even if it was not made under oath.

Question 22

Impeachment with Crminal Convictions

Answer 22

The rules for impeachment by prior conviction are generally the same under federal and Georgia law. The following types of criminal convictions generally qualify for impeachment: (1) any crime (felony or misdemeanor) involving dishonesty or false statement; or (2) any felony (meaning, an offense punishable by a maximum sentence of death or imprisonment in excess of 1 year, even if the person ultimately received a lighter sentence).

However, in Georgia, the following types of convictions are not admissible for impeachment purposes:

• A conviction based on a plea of nolo contendere (no contest)
• A final adjudication of guilt and subsequent discharge under a first offender statute

Question 23

Prior Statements of Testifying Witness

Hearsay Exceptions

Answer 23

The Federal Rules exclude 3 types of prior statements of a testifying witness from the definition of hearsay: (1) prior statements of identification, (2) prior inconsistent statements made under oath, and (3) certain prior consistent statements that rehabilitate an impeached witness. In other words, these statements are not hearsay as long as the witness is testifying and subject to cross-examination about the statement.

For practical purposes, the only significant difference in the Georgia rule is that a testifying witness’s prior inconsistent statement is not hearsay even if it wasn’t made under oath.

Additionally, in Georgia, any type of statement by a testifying witness is considered nonhearsay if the statement would otherwise be admissible under a hearsay exception. For example, if a witness testified about their own out-of-court statement, and that statement would qualify as an excited utterance, it isn’t considered hearsay at all. This is a technical point because the end result is the same—the statement is admissible (whether as nonhearsay, or under a hearsay exception).

Question 24

Statements By of Attributable to Opposing Party/Admissions

Hearsay Exceptions

Answer 24

Statements by an opposing party are also excluded from the definition of hearsay. Georgia still refers to statements by an opposing party as “admissions by a party-opponent.”

Georgia-Specific Rule for Related Conversations: In Georgia, when an admission is offered by one party, the other party has the right to have the whole statement and all the conversations connected with it admitted into evidence.

Vicarious Party Admissions—Agents and Employees: Under federal and Georgia law, a statement by an agent or employee is admissible against the principal if the statement: (1) concerned any matter within the scope of their agency or employment, and (2) was made during the existence of the agency or employment relationship.

The Georgia rule includes a provision clarifying that statements of government agents (for example, police officers) are not admissions of the state in a criminal case. Federal courts generally agree.

Vicarious Party Admissions—Co-Conspirators: Under federal and Georgia law, statements of a conspirator, made during and in furtherance of a conspiracy, are admissible against co-conspirators. This is true even if the persons involved were never charged with conspiracy; it is for the court to decide whether a conspiracy existed.

The Georgia rule further specifies that this hearsay exclusion applies even where the statements were made during the concealment phase of the conspiracy, so long as the statements were made in furtherance of the conspiracy. Federal courts generally agree.

Question 25

Present State of Mind

Hearsay Exception

Answer 25

Under federal and Georgia law, a statement of the declarant’s then-existing (present) state of mind is admissible as an exception to the hearsay rule. Statements of a person’s intent to do something in the future are routinely admitted under this exception to prove that the person carried out their intent.

Addressing a split in the federal courts, the Georgia rule expressly limits statements of intent to the declarant’s own intent, and not the intent of third persons.

Question 26

Statement for Purposes of Medical Diagnosis or Treatment - Statements by Child Abuse Victim

Hearsay Exceptions

Answer 26

A statement that describes a person’s medical history, past or present symptoms, or their inception or general cause is admissible as an exception to the hearsay rule if it was made for—and was reasonably pertinent to—medical diagnosis or treatment. As a general rule, statements that merely assign fault to a person aren’t considered pertinent to treatment. However, most federal courts will admit statements in which a child identifies their abuser in the course of treatment.

Georgia courts, like most federal courts, may admit a child abuse victim’s statements that identify the abuser. For this type of statement to be admissible under the medical exception in Georgia, the following reliability factors must be met: (1) the declarant’s motive in making the statement 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.

Note, also, that such statements may be admissible under the Georgia exception for statements by a child describing sexual contact or physical abuse (discussed infra).

Question 27

Public Records Exception

Hearsay Exceptions

Answer 27

Under the Federal Rules and in Georgia, the record of a public office is admissible if it is within any of the following 3 categories: (1) the record describes the activities of the office; (2) the record describes matters observed pursuant to a duty imposed by law (but not including police observations in criminal cases); or (3) the record contains factual findings resulting from an investigation that was authorized by law. In a criminal case, the prosecution cannot offer a record falling within category (3).

The Georgia rule codifies the point that a public record cannot be admitted under the business records exception if it fails to meet the requirements of the public records exception. Federal courts generally agree.

Question 28

Ancient Documents

Hearsay Exceptions

Answer 28

Under the Federal Rules, documents are considered ancient for purposes of authentication if they are at least 20 years old. However, the ancient documents hearsay exception applies to statements in an authenticated document that was prepared before 1998.

The Georgia ancient documents hearsay exception applies to statements in an authenticated document that is at least 20 years old.

Question 29

Learned Treatises

Hearsay Exceptions

Answer 29

Under the Federal Rules, the hearsay exception for statements in a learned treatise applies when the treatise is either called to the attention of an expert witness upon cross-examination or relied upon by an expert during direct examination.

In Georgia, the learned treatise exception applies only on cross-examination of an expert witness.

Question 30

Child’s Description of Sexual Contact or Physical Abuse

Hearsay Exception

Answer 30

An out-of-court statement by a child younger than 16 years old describing an 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 in evidence by the testimony of the person to whom the statement was made. For this exception to apply, the following requirements must be met:

• The proponent must provide notice to the adverse party prior to trial of their intention to use the statement;
• The person to whom the statement was made must be subject to cross-examination regarding the statement at the time of their testimony; and
• The child must testify at the trial, unless such testimony is forfeited or waived by the adverse party

Question 31

Medical Reports

Hearsay Exception

Answer 31

In a civil case involving injury or disease, a medical report in narrative form is admissible to the extent that it purports to represent the history, examination, diagnosis, treatment, prognosis, or interpretation of tests by the person signing the report. The opinion of the person signing the report regarding the origin of the injury or disease may be included as part of the diagnosis. The report must be signed and dated by an examining or treating medical doctor, dentist, orthodontist, podiatrist, physical or occupational therapist, chiropractor, psychologist, advanced practice nurse, social worker, professional counselor, or marriage and family therapist.

The report and notice of intention to introduce it must be given to the other party at least 60 days before trial. The proponent may introduce testimony of the person signing the report for the purpose of supplementing the report or otherwise. An adverse party is entitled to cross-examine the person signing the report and to present rebuttal testimony.

Question 32

Privilege

Answer 32

In federal court, neither counsel for the parties nor the judge may comment on someone’s claim of privilege.

In Georgia, a party’s assertion of a privilege may not be used against them in a criminal case.

However, in a civil case, a party’s assertion of a privilege may be used by the trier of fact to draw a negative inference against the party—that the party asserted the privilege because disclosing the information would be against their interest.

Question 33

Physician-Patient Privilege

Answer 33

Federal courts don’t recognize a general physician-patient privilege. (Remember, however, that MBE questions occasionally assume the existence of a physician-patient privilege in diversity actions under the majority state rule.)

Georgia also does not recognize a general physician-patient privilege. There is a physician shield statute (covered in your Georgia Civil Procedure materials) that protects the confidentiality of medical information; however, this does not create an evidentiary privilege because the statute allows a physician to disclose information under court order or subpoena.

Question 34

Mental Health Privilege

Answer 34

Federal courts recognize a privilege for confidential communications between a psychotherapist (psychiatrist or psychologist) or licensed social worker and their patient/client.

Georgia’s mental health privilege applies to a variety of providers: psychiatrists, licensed psychologists, clinical nurse specialists in psychiatric/mental health, licensed clinical social workers, licensed professional counselors, and licensed marriage and family therapists. (Basically, you should look for psychiatrists, nurses who specialize in mental health, or any other licensed mental health provider.)

Unlike the federal privilege, Georgia’s mental health privilege is absolute in nature and applies even where the patient’s injuries or treatment are at issue in a civil proceeding. Note, however, that there is no psychiatrist-patient privilege where the psychiatrist is appointed by the court for the purpose of evaluating a person’s mental state (for example, to determine a criminal defendant’s competency to stand trial). The rationale is that the psychiatrist is not providing, and the individual is not seeking, mental health treatment.

Question 35

Spousal Testimonial Privilege
(Spousal Immunity)

Answer 35

Under federal law, the majority position is that the spousal testimonial privilege does not apply where the marriage is a sham.

In contrast, Georgia courts have specifically held that the privilege may be asserted even though the marriage was entered into for the purpose of preventing the testimony of the witness-spouse.

Question 36

Privilege for Confidential Marital Communications

Answer 36

The federal confidential marital communications privilege belongs to both spouses.

In Georgia, the privilege belongs to the communicator-spouse. Additionally, where the communicator-spouse has died, the Georgia Supreme Court has held that the privilege can’t be waived by the administrator of their estate or by their surviving spouse.

Question 37

When Marital Privileges Do Not Apply

Answer 37

Under federal law, neither privilege applies: (1) to communications or acts in furtherance of a joint crime or fraud; (2) in lawsuits between the spouses (such as in a divorce case); or (3) in cases where a spouse is charged with a crime against the testifying spouse or either spouse’s children.

Georgia does not recognize a general joint-crime/fraud exception or an exception for lawsuits between spouses (in other words, Georgia doesn’t recognize exceptions (1) and (2) above). However, the marital privileges do not apply in the following proceedings in Georgia:

• Where the defendant is charged with a crime against any minor child (this is broader than the federal exception because it extends to any child); however, the spouse can be compelled to give evidence only on the specific act for which the defendant is charged
• Where the defendant is charged with a crime against their spouse (same as the federal exception)
• Where the defendant is charged with causing physical damage to the couple’s property or to their spouse’s separate property
• In termination of parental rights or dependency proceedings (as these are civil proceedings, only the marital communications privilege is relevant here)

Question 38

Clergy-Penitent Privilege

Answer 38

Georgia recognizes a clergy-penitent privilege for communications “professing religious faith, seeking spiritual comfort, or seeking counseling” to a Protestant minister, Roman Catholic or Greek Orthodox priest, Jewish rabbi, or “any Christian or Jewish minister or similar functionary, by whatever name called.” Georgia courts have held that the clergy-penitent privilege is not waived if the penitent has other individuals present for counseling purposes.

Question 39

Privilege Against Self-Incrimination

Answer 39

Georgia’s privilege against self-incrimination is very broad. By statute, no party or witness is required to testify as to any matter that may incriminate or tend to incriminate them or that tends to bring infamy, disgrace, or public contempt upon themselves or any member of their family.

However, case law interpreting this statute provides that a witness is required to answer questions that are not incriminating but that tend to bring infamy, disgrace, or public contempt upon themselves or their family if the proposed evidence is material to the issues in the case. It is only where the proposed answer has no effect on the case except to impair the witness’s credibility that the witness may fall back on the privilege.

Question 40

Accountant-Client Privilege

Answer 40

Georgia recognizes an accountant-client privilege. The exceptions to the privilege are similar to those under the attorney-client privilege.

Question 41

Professional Journalist Privilege

Answer 41

In Georgia, any person or entity engaged in the gathering and dissemination of news for the public has a qualified privilege against disclosure of any information obtained or prepared in the gathering or dissemination of news in any proceeding where the person asserting the privilege is not a party, unless it is shown that the privilege has been waived or that what is sought:
1. is material and relevant;
2. cannot be reasonably obtained by alternative means; and
3. is necessary to the proper preparation or presentation of the case of a party seeking the information, document, or item.

Question 42

Misc. Privileges

Answer 42

• Secrets of state
• The identity of an informer
• Communications among grand jurors

Question 43

Judicial Notice of Law

Answer 43

Georgia courts judicially recognize the following matters without the introduction of proof:
1. the existence and territorial extent of states, their forms of government, and symbols of nationality;
2. the laws of nations;
3. all laws and resolutions of the General Assembly of Georgia;
4. the laws of the United States and of other states;
5. general customs of merchants;
6. the admiralty and maritime courts of the world;
7. the political constitution and history of Georgia’s government as well as the local divisions of Georgia; and
8. all similar matters of legislative fact.

Question 44

Additional Presumptions in Georgia

Answer 44

Presumption from Failure to Produce Evidence

In a civil case, where a party has evidence within their power by which they can rebut a claim against them and fail to produce that evidence, or if they have more satisfactory evidence in their power but rely on weaker evidence, a rebuttable presumption arises that the charge or claim against them is well-founded.

Presumption from Failure to Answer Business Letter

In the ordinary course of business, when good faith requires an answer, it is the duty of the party receiving a letter from another to answer within a reasonable time. Otherwise, there is a rebuttal presumption that the person admits the propriety of the acts mentioned in the letter and adopts such acts.

Presumption Relating to Payment of Check

Where there is a dispute concerning payment by check, a copy of the check produced in accordance with Georgia law, together with the original bank statement that reflects payment of the check by the bank on which it was drawn, creates a rebuttable presumption that the check has been paid.