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GA Bar Prep > Georgia Evidence > Flashcards

Georgia Evidence Flashcards

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1
Q

Subsequent Remedial Measure

A

In Georgia, Subsequent Remedial Measures is admissible in strict liability cases to prove that the defendant admitted that the product was unsafe and could be made safer.

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2
Q

Statement by Health Care Providers in malpractice cases.

A

In civil actions, statement or conduct expressing sympathy, mistake, error or a general sense of benevolence made by a health care provider to a patient, her representative, or a relative are inadmissible and do not constitute an admission of liability.

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3
Q

Involuntary Confessions

A

Involuntary confessions are inadmissible even if they are not barred by the hearsay rule. A confession may be considered involuntary if law enforcement/prosecution induced it by giving the accused even the slightest hope of a benefit.

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4
Q

Wiretapping, Eavesdropping and Surveillance

A

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.

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5
Q

Judicial Notice of Law-Mandatory or Permissive?

A
  • (1) The existence and territorial extent of the 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 Several States
  • (5) General Customs of Merchants
  • (6) 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
  • (8) All similar matters of legislative fact
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6
Q

Particular Types of Real Proof–Jury View of the Scene

A
  • A scene view of the scene is not evidence and can only be used by the jury to better understand the evidence.
  • A evidentiary view is evidence. An evidentiary view is a view that permits the jury to view evidence introduced in the case. This is allowed when evidence is so large or affixed that it cannot be brought into the courtroom.
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7
Q

Polygraph Test

A
  • Polygraph results are admissible only pursuant to stipulation by the defense and state.
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8
Q
  • Authentication-Photographs
A
  • A photograph, motion picture, videotape or audio recording is admissible over an authentication objection despite the fact that the authenticating witness is unavailable if the court determines that such an item tends to reliably show the facts for which it is offered.
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9
Q

Authentication-

Unattended Camera Or Recording Device

A
  • A photograph, film, videotape or audio recording from an unattended camera or recoding devide will be admitted if
    • (1) The court determines that it tends to show reliably the facts for which it is offered and
    • (2) The date and time have been recorded on the item contemporaneously with the events depicted.
      • Any discrepancy in the date/time goes to the weight to be given the evidence. It does not preclude admissibility.
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10
Q

Authentication-Medical Bills

A
  • In a civil case involving disease or injury, medical bills may be authenticated by 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.
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11
Q
  • Self-Authenticating Documents-Georgia Public Records
A
  • Georgia state, county and municipal records are admissible in Georgia courts with a written certification; no seal is required.
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12
Q

Competency-

  • Infancy:
A
  • In all cases involving a dependent child (one without proper parental care) and in any criminal case in which a child was a victim or a witness, the child is competent to testify even if he does not understand the obligation of the oath. However, child is still subject to a competency challenge.
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13
Q

Competency

  • Dead Man Act:
A
  • Georgia does NOT have a Dead Man Act. Therefore, an interested party or person is competent to testify to personal transactions or communications with the deceased.
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14
Q

Competency

Lay Witness Value of Property

A
  • : In Georgia, a witness MAY** give her opinion on 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
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15
Q
  • Expert Opinion
  • (a) Subject Matter must be appropriate for expert testimony
A
  • In Georgia Criminal cases, expert opinion will be admissible on any question of science, skill, trade or like question. Trial court will decide if the procedure/technique reached a scientific stage of verifiable certainty In Georgia Civil cases, Georgia applies the federal standards for admissibility of expert testimony.
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16
Q

Expert Opinion

  • (2) The witness must be qualified as an expert
A
  • In all : An expert testifying as to the standard of care must be licensed to practice in the state in which she was practicing or teaching at the time of the alleged act or omission.
    • Medical Malpractice: In addition to the stated requirements above, the witness must also have actively participated 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 witness must be a member of the same profession as the defendant. However, a physician with sufficient experience and knowledge may testify as to the standard of care for nurses and other specified health providers.
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17
Q

Georgia Statement of Hearsay Rule

A
  • Statement of the rule: In Georgia, the out of court statement of a testifying witness is NOT hearsay. Regardless, the prior statements are generally inadmissible as cumulative and/or improper bolstering of the witness’s testimony. Thus, in Georgia, an out-of-court statement by a testifying witness is admissible if
    • (1) It is a prior inconsistent statement
    • (2) It is a prior inconsistent statement that logically rebuts an attack on the witness’s credibility or
    • (3) It falls within some hearsay exception.
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18
Q

Hearsay

  • Statements that are Non-Hearsay
  • Admission by Party-Opponent
A
  • The other party has the right to have the whole admission and all conversation connected with in admitted into evidence.
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19
Q

Hearsay

  • Statements that are Non-Hearsay
  • Vicarious Admissions
A
  • Statements of government agents are NOT admissions of the state in a criminal case.
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20
Q

Hearsay

  • Vicarious Admissions Co-Conspirators
A
  • Statements made by a con-conspirator during the concealment phase may be admissible against co-conspirators if made in furtherance of the conspiracy
  • This rule may apply even if the persons involved has not been charged with conspiracy.
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21
Q
  • Hearsay Exceptions Declarants Availability Immaterial
  • Present State of Mind
A
  • Limits the statements to ONLY the intent of the declarant’s own intent NOT to the intent of third persons.
    • “I plan to go to Japan with Greg”
      • With greg will be excluded.
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22
Q
  • Hearsay Exceptions Declarants Availability Immaterial
  • Statements for Diagnosis or Treatment of Child Abuse Victims Identifying the Abuser
A
  • A child abuse victim statements that identify the abuser may be admitted. The reliability factors must be satisfied
    • (1) The declarant’s motive in making the statement must be consistent with the purpose of promoting treatment
    • (2) The content of the statement is of a type reasonably relied on by a physician in treatment of a diagnosis.
23
Q

Hearsay

  • Public Records and Reports
A

v

  • To be admissible, public records must fall within the public record exception. They may NOT be admitted under the business record exception
24
Q

Hearsay

  • Learned Treatise Exception
A
  • The exception applies ONLY on cross-examination of an expert.
25
Q

Hearsay

  • Testimony as to Child’s Description of Sexual Contact or Physical Abuse
A
  • An out of court statement by a child younger than 16 years old describing an act of sexual conduct or physical abuse performed with or on another person in the presence of a child is admissable 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.
    • (1) The proponent must provide notice to the adverse party prior to trial of his intention to use the statement.
    • (2) The person who was told the statement must be subject to cross exam
    • (3) child must testify at trial unless such testimony is forfeited or waived by the adverse party
26
Q

Hearsay

  • Medical Reports
A
  • In a civil case involved injury or disease, a medical report in a narrative form is admissible insofar as it purports to represent the history, examination, diagnosis, treatment, prognosis or interpretation of tests by the person signing the report.
    • (1) Report must be signed/dated by an examining or treating doctor
    • (2) Report and notice of intent to introduce the report must be given to the other party at least 60 days before trial.
      • The opinion of the person signing the report regarding the origin of the injury or disease may be included as part of the diagnosis.
    • (3) Adverse party is entitled to cross-examine the person signing the report & present rebuttal evidence.
27
Q

Impeachment

  • Prior Inconsistent Statements-Foundation for Extrinsic Evidence
A
  • Extrinsic evidence will not be admitted into evidence unless the witness is first given an opportunity to explain or deny the statement.
28
Q

Impeachment

  • Evidentiary Effect of Prior Inconsistent Statement
A
  • Prior Inconsistent statement of a witness who takes the stand and is subject to cross-examination is admissible as substantive + Impeachment purpose.
29
Q

Impeachment

  • Conviction of Crime: First Offender Rule
A
  • You may not impeach based on a crime which was discharged under the first offender statutue.
30
Q

Impeachment

  • Conviction of Crime: Nolo
A
  • You may not impeach with a conviction based on a plea of Nolo
31
Q

Character Evidence

  • Accused in Criminal Case-How Defendant Proves Character
A
  • A testifying criminal defendant may testify to specific acts to establish his good character.
32
Q
  • Character Evidence
  • Victim in Criminal Case- Rape Victim Past Behavior
    • Exception?
A
  • In any prosecution for rape, sodomy, child molestation, aggravated sexual battery evidence relating to the past sexual behavior of the witness is generally NOT admissible either as direct evidence or on cross. Evidence of sexual behavior includes marital history,mode of dress, reputation.
  • EXCEPTION: Evidence relating to the past behavior may be introduced if
    • (1) Court finds that the past sexual behavior is directly involved with the accused and
    • (2) Evidence supports an inference that the accuded could have reasonably believed that the victim consented.
33
Q

Character Evidence

  • Specific Acts of Misconduct
A
  • The prosecution must always provide notice before introducing evidence of the accused prior crimes or conduct.
  • Notice is not required when such evidence is offered to prove
    • (1) Circumstances immediately surrounding the charged crime
    • (2) Motive or
    • (3) Prior difficulties between the accused and the victim.
34
Q

Character Evidence

  • Criminal Defendant Prior Gang Activity
A
  • In a criminal proceeding in which the defendant is accused or conducting or participating in criminal gang activity, evidence of the defendants commission of criminal gang activity is admissible and may be considered for its bearing on any matter to which it is relevant.
35
Q

Privilage

  • How may use of a privilege be construed?
A
  • In criminal cases, a party’s assertation of a privilege may not be used against him in a criminal case.
  • In a civil case, a party’s assertation of a privilege may be used by the trier of fact to draw a negative inference against the party.
36
Q

Privilage

  • Physician-Patient Privilege
A
  • Ga does not have a Physician-Patient Privilege.
37
Q

Privilage

  • Psychiatrist-Patient Privilege
A
  • There is no psychiatrist-patient privilege when the psychiatrist is appointed by the court for the purpose of evaluating a person’s mental state.
38
Q

Privilage

  • Spousal Immunity
A
  • Spouses are competent but cannot be compelled to give evidence in any criminal proceeding for or against each other. Privilege is held by the witness-spouse.
  • Privilege may be asserted even though the marriage was entered into for the purpose of preventing the testimony of the witness-spouse.
  • Spousal Immunity does not apply in proceedings
    • in which the husband or wife is charged witha crime against any minor child, but the spouse will be compelled to give evidence only on the specific act for which the defendant is charged.
    • In proceedings in which the defendant is charged with a crime against his spouse or his spouse’s property.
39
Q

Privilage

  • Marital Communication
A
  • The privilege belongs to the communicator-spouse and is perpetual. Thus it cannot be waived by a deceased spouse administrator or surviving spouse since communications between husband and wife survive death and are protected forever.
40
Q

Privilage

  • Privilege Against Self-Incrimination
A
  • No party or witness is required to testify as to any matter that may incriminate or tend to incriminate him or that tends to bring infamy, disgrace or public contempt upon himself or any member of his family. HOWEVER, a witness may be 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.
41
Q
  • Clergy-Penitent Privilege
A
  • This privilege is not waived if the penitent has other individuals present for counseling purposes.
42
Q
  • Professional Journalist privilege
A
  • Any person, company or other 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 one asserting the privilege is not a party unless it is shown that this privilege has been waived or that what is sough is
    • (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.
43
Q

Procedural Considerations

  • Conclusive Presumption
A
  • In Georgia, Conclusive Presumptions of law are termed estoppels. Estoppels are not generally favored.
44
Q

Procedural Considerations

  • Presumptions of Law and Fact Distinguished
A
  • Presumptions are either of law or fact. Presumptions of law are conclusions and inferences the law draws from given facts.
  • Presumptions of fact are exclusively questions for the jury, to be decided by the ordinary test of human experiences.
45
Q

Procedural Considerations

  • Presumption from Failure to Produce Evidence
A
  • If a party has evidence within his power or control which he may rebut a claim against him and fails to produce that evidence, or if he has more satisfactory evidence in his power but relies on that which is weaker
46
Q

Procedural Considerations

  • Presumption from Failure to Answer Business Letter
A
  • 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, he is presumed to admit the propriety of the acts mentioned in the letter of his correspondent and to adopt them.
47
Q

Procedural Considerations

  • Presumption of Payment of Check
A
  • When there is a dispute concerning payment by check, a copy of the check produced in accordance with Georgia’s rules allowing admissibility of duplicate writings together with the original bank statement that reflects payment of the check by the bank creates a presumption that the check has been paid.
48
Q

Form Of Examination of Witness

Use of Memoranda by Witness

A

Federal Rule allows a trial judge to order a party to disclose to the opponent materials that were used to refresh the recollection of a witness before the witness took the stand. Georgia’s version of this rule clarifies that neither the attorney-client privilege nor attorney work product protection are waived by using covered material to prepare a witness before the witness takes the stand. Thus the trial judge may not order the disclosure of such materials.

49
Q
A
50
Q

Restriction on Scope

A

Each Party has a right to a “thorough and sifting” cross-exam. Witness may be cross-examined on any matter relevant to any issue in the proceeding.

51
Q

Witnesses Examined or Called By the Court

A

In Georgia, the court may call the following type of witneses on its own motion:

(1) Court appointed expert witnesses
(2) Witnesses regarding the competency of a party
(3) child witnesses.

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

52
Q

Present Sense Impression

(Federal Rule)

A

Statement of an event made

(1) As it is occurring or soon after it has occurred; AND
(2) statement must describe or explain the event and is made contemporaneously with the perception.

53
Q

Present Sense Impression vs Present State of Mind

(Rule statements for both)

A

Present Sense Impression

  • statement of an event made
    • (1) As it is occurring or soon after it has occurred;
    • (2) statement must describe or explain the event and is made contemporaneously with the perception.
  • Present State of Mind
    • Statements of declarant’s then-existing (contemporaneous) state of mind, emotion, sensation or physical condition. including intent, plan, motive, design, or mental emotion are admissible,
      • (“I believe I’m the Pope”),
      • (“I hate her”),
      • (“My leg hurts”)
      • (“My leg is worthless”)
    • BUT not statements of memory or belief (except in will cases).
    • GA
      • i. Limits the statements to ONLY the intent of the declarant’s own intent NOT to the intent of third persons.
54
Q

Present State of Mind

A

Present State of Mind

  • Statements of declarant’s then-existing (contemporaneous) state of mind, emotion, sensation or physical condition. including intent, plan, motive, design, or mental emotion are admissible,
    • (“I believe I’m the Pope”),
    • (“I hate her”),
    • (“My leg hurts”)
    • (“My leg is worthless”)
  • BUT not statements of memory or belief (except in will cases).
  • GA– Limits the statements to ONLY the intent of the declarant’s own intent NOT to the intent of third persons.

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