Witnesses

Question 1

Children Competency

Answer 1

Fed and GA - whether a child is competent to testify is generally decided on a case-by-case basis. Generally, all witness must given an oath or affirmation.

GA - in the following cases, a child is competent to testify without an oath or affirmation:

1) a dependency case (where the child is abused or abandoned or without parental care)

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.

Question 2

Dead Man Acts

Answer 2

Some states 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.

GA DOES NOT HAVE A DEAD MAN ACT

Question 3

Scope of Cross Examination

Answer 3

Fed - cross examination is generally limited to (1) the scope of direct and (2) matters that test the credibility of witnesses

GA - permits a very broad scope of 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

However, the judge retains the authority to limit the cross examination - can limit if not relevant or material

Question 4

Refreshing Recollection

Answer 4

Fed and GA - a witness’s recollection may be refreshed while they are on the stand or before they take the stand. Where it is refreshed with a writing while on the stand, the adverse party is entitled to have the writing produced at trial. Where the witness is refreshed before taking the stand, the adverse party is entitled to have the writing produced only if the court decides that justice requires it.

GA - neither the attorney-client privilege nor that attorney work product protections are waived by using covered materials to prepare a witness BEFORE THE WITNESS TAKES THE STAND.

Question 5

Opinion of Lay Witness

Answer 5

Fed and GA - opinion testimony by lay witness is admissible when (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

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

Question 6

Expert Witness Qualification

Answer 6

GA has imposed specific requirements for qualifying an expert in malpractice cases

All Professional Malpractice Cases
– 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

In Medical Malpractice Cases
– The expert must have also 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

Question 7

Witness Called by Court

Answer 7

Fed - the court may call its own witnesses

GA - 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
3) child witnesses

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