Current V. 2013 Georgia Rules Of Evidence

Front 1

Current Rules
O.C.G.A. § 24-3-33: “Admissions by an
agent or attorney-in-fact, during the
existence and in pursuance of his agency,
shall be admissible against the principal.”

O.C.G.A. § 10-6-64: “The agent shall be a
competent witness either for or against his
principal. … The declarations of the agent
as to the business transacted by him shall
not be admissible against his principal
unless they were part of the negotiation
constituting the res gestae....”

Back 1

New Code
§ 24-8-801(d)(2)(D): Excludes from the
hearsay rule “[a] statement by the party’s
agent or employee …2 concerning a matter
within the scope of the agency or
employment, made during the existence
of the relationship.”

Front 2

Current Rules
O.C.G.A. § 24-3-14(b): Permits the use of
a “memorandum or record of any act,
transaction, occurrence or event” to prove
the act, transaction, occurrence or event,
provided the court finds the record was
made in the regular course of business.

Back 2

New Code
§ 24-8-803(6): Allows the use of records,
in any form, of “acts, events, conditions,
opinions, or diagnoses” if “(A) made at or
near the time of the described acts,
events, conditions, opinions or diagnoses;
(B) made by, or from information
transmitted by, a person with personal
knowledge and a business duty to report;
(C) kept in the course of a regularly
conducted business activity; and (D) it
was the regular practice of that business
activity to make the memorandum,
report, record, or data compilation.”

Front 3

Current Rules
O.C.G.A. § 24-7-4: Requires that the
subscribing witness – that is, the person
who signed the subject instrument as a
witness – be produced, with exceptions
that include “[i]f from any cause the
witness cannot be produced or sworn.”
A person who was not the subscribing
witness is not competent to authenticate a
document. McClinton v. Sullivan, 208
Ga.App. 411 (1993).
The Court of Appeals has grappled with
the question of what type of witness may
authenticate a business record, but it has
always held – despite the statute not
saying so expressly – that a witness with
personal knowledge of the origins of the
record must lay the foundation before a
court may admit a business record into
evidence under the hearsay exception.
Loyal v. State, 300 Ga.App. 65 (2009).

Back 3

New Code
§ 24-9-903: “The testimony of a
subscribing witness shall not be
necessary….”
§ 24-8-803(6): Provides that the
foundation for a business record can be
laid by “the custodian or other qualified
witness or by certification that complies
with paragraph (11) or (12) of Code
Section 24-9-902….”
§ 24-9-902(11): Allows domestic records
to be authenticated by a written
declaration of a qualified witness that the
record meets the requirements for the
hearsay exception.
§ 24-9-902(12): Allows foreign records
on the same terms, so long as the
declaration is signed in a manner that, if
falsely made, would subject the maker to
criminal penalties in the country where it
is signed.
Where authentication is done by
declaration, any adverse parties must be
given notice and an opportunity to inspect
and challenge the record and the
declaration, sufficiently in advance of
their being offered into evidence.

Front 4

Current Rules
§ 24-9-20, et seq.: Provide a number of
evidentiary privileges. Among these are:
a) Privilege against selfincrimination;
b) Secrets of state;
c) Communications between:
a. husband/wife;
b. attorney/client;
c. psychiatrist/patient;
d. grand jurors;
e. licensed psychologist/patient;
f. patient/licensed clinical social
worker or nurse specialist in
mental health, etc.;
Note: A doctor’s privilege does not cover
a nurse who is an agent of the hospital
and not the doctor. Myers v. State, 251
Ga. 883 (1984).
Where the mental health professional is
not a psychiatrist or clinical psychologist,
there is no privilege. Lipsey v. State, 170
Ga.App. 770 (1984).
d) Clergyman/penitent;
On its face, only applies to Christian or
Jewish clergy. No case law testing that
limitation.
Does not apply to a “spiritual advisor” or
a “psychic.” Manous v. State, 200
Ga.App. 293 (1991).
e) Spousal privilege – One spouse
may not be compelled to testify
against the other in a criminal
proceedi

Back 4

New Code
§ 24-5-501, et seq.: Provide a number of
evidentiary privileges. Among these are:
a) Privilege against self-incrimination;
b) Secrets of state;
c) Communications between:
a. husband/wife;
b. attorney/client;
c. grand jurors;
d. psychiatrist/patient;
e. psychologist/patient;
f. patient/licensed clinical social
worker or nurse specialist in
mental health, etc;
d) Clergyman/penitent;
Again, only appears to cover Christian and
Jewish clergy.
e) Spousal privilege;
f) § 24-5-504: Privilege of a law
enforcement officer not to be
compelled to reveal his home
address;
g) Privilege of witness from being
required to give testimony that will
incriminate himself or bring
infamy, disgrace, or public
contempt on himself or his family;
no witness shall be compelled to
testify to a matter that will tend to
work a forfeiture of his estate,
except in post-judgment discovery;
h) Journalist’s privilege;
i) § 24-12-30: Librarians;
j) § 24-12-31: Veterinarians.

Front 5

Current Rules
§ 24-9-83: “A witness may be impeached
by contradictory statements previously
made by him as to matters relevant to his
testimony and to the case. Before
contradictory statements may be proved
against him, unless they are written
statements made under oath in connection
with some judicial proceedings, the time,
place, person, and circumstances
attending the former statements shall be
called to his mind with as much certainty
as possible. If the contradictory
statements are in writing and in existence,
they shall be shown to him or read in his
hearing.”

Back 5

New Code
§ 24-6-613(a): “In examining a witness
concerning a prior statement made by the
witness, whether written or not, the
statement need not be shown nor its
contents disclosed to the witness at that
time; provided, however, upon request
the same shall be shown or disclosed to
opposing counsel.”
As

Front 6

Current Rules
An expert can express an opinion on the
meaning and application of treatises
(although the contents of the treatises are
not themselves admissible). “The opinion
of an expert as to what conclusions may be
properly drawn from statements in
scientific works pertaining to his
profession, amounts to something more
than mere hearsay.” Rogers v. State, 202
Ga.App. 595 (1992).
“[N]otwithstanding the inadmissibility of
the books, the opinions contained therein
may come to the jury through the mouth
of an expert witness.” Boswell v. State, 114
Ga. 40 (1901).
“[A]n expert witness may be crossexamined
by reference to a standard
treatise in the field of the expert's special
knowledge to test his credibility, … [but]
an expert cannot be cross-examined upon
a treatise which has not been proved to be
a standard treatise on the subject.”
Wooten v. Department of Human
Resources, 152 Ga.App. 304 (1979).

Back 6

New Code
§ 24-8-803: Excepts from the rule
against hearsay: “[t]o the extent called to
the attention of an expert witness upon
cross-examination, statements contained
in published treatises, periodicals, or
pamphlets, whether published
electronically or in print, on a subject of
history, medicine, or other science or art,
established as a reliable authority by the
testimony or admission of the witness, by
other expert testimony, or by judicial
notice. If admitted, the statements may
be used for cross-examination of an
expert witness and read into evidence but
shall not be received as exhibits.”

Front 7

Current Rules
Summaries of voluminous records are
allowed as competent evidence when the
underlying records are available for
examination by the opposing party. Tyner
v. Sheriff, 164 Ga.App. 360 (1982).
C.f., In re A.A., 252 Ga.App. 167 (2001).
Court of Appeals held that a social
worker’s summary of a voluminous case
file was inadmissible hearsay. However,
the contents of the file themselves were
other social workers’ impressions and
opinions, and the file itself was not
produced. Regardless, the language of the
opinion seems to question the
admissibility of summaries in general.

Back 7

New Code
§ 24-10-1006: “The contents of otherwise
admissible voluminous writings,
recordings, or photographs which cannot
conveniently be examined in court may be
presented in the form of a chart,
summary, or calculation. The originals, or
duplicates, shall be made available for
examination or copying, or both, by other
parties at a reasonable time and place.
The court may order that the contents of
such writings, recordings, or photographs
be produced in court.”

Front 8

Current Rules
O.C.G.A. § 24-9-65: “Where the question
under examination, and to be decided by
the jury, shall be one of opinion, any
witness may swear to his opinion or belief,
giving his reasons therefor. If the issue
shall be as to the existence of a fact, the
opinions of witnesses shall be generally
inadmissible.”
“[A]s a general rule a witness is not
permitted to express an opinion of
ultimate fact or the fact to be decided by
the jury because to do so would invade the
province of the jury.” Nichols v. State, 177
Ga.App. 689 (1986) (Internal punctuation
omitted).
O.C.G.A. § 24-9-66: “Direct testimony as
to market value is in the nature of opinion
evidence. One need not be an expert or
dealer in the article in question but may
testify as to its value if he has had an
opportunity for forming a correct
opinion.” The owner of property is
qualified to state his opinion as to value.
Maddox v. State, 157 Ga.App. 696 (1981).

Back 8

New Code
§ 24-7-701: Lay opinion limited to
opinions which are:
1. “Rationally based on the
perception of the witness;
2. Helpful to a clear understanding of
the witness’s testimony or the
determination of a fact in issue;
and
3. Not based on scientific, technical,
or other specialized knowledge….”
§ 24-7-704: “…testimony in the form of
an opinion or inference otherwise
admissible shall not be objectionable
because it embraces an ultimate issue to
be decided by the trier of fact.”
§ 24-7-701(b): “A witness need not be an
expert or dealer in an article or property
to testify as to its value if he or she has
had an opportunity to form a reasoned
opinion.”

Front 9

Current Rule
O.C.G.A. § 24-9-67.1 adopted the Federal Rules of Evidence regarding expert witnesses for Georgia in 2005, but were only applicable to civil cases. O.C.G.A. § 24-9-67 retained the previous rules for expert witnesses in criminal matters.

Back 9

New Code
O.C.G.A.§ 24-7-702 will apply the Federal Rules of Evidence extend to both criminal and civil use of expert witnesses.

Front 10

Current Rules
“Electronic computer messages are held
to the same standards of authentication
as other similar evidence. The admission
of transcripts of internet chat sessions are
akin to the admission of videotapes,
which are ‘admissible where the operator
of the machine which produced it, or one
who personally witnessed the events
recorded, testifies that the videotape
accurately portrayed what the witness
saw take place at the time the events
occurred.’” Hammontree v. State, 283
Ga.App. 736 (2007) (Internal citations
omitted).

Back 10

New Code
§ 24-8-801(g): A public record can be
electronic;
§ 24-8-803(18): A learned treatise can
be electronic;
§ 24-9-901(b)(5): Identification of a
voice by electronic transmission can be
used for identification;
§ 24-10-1001: “Writing” and “recording”
include electronic records; “duplicate”
includes electronic copy. “If data are
stored in a computer or similar device,
any printout or other output readable by
sight, shown to reflect the data
accurately, is an original.”
§ 24-10-1001(3).