10 Evidence and Handling Witnesses

10. EVIDENCE AND HANDLING WITNESSES

10.1 GENERAL OCGA 24-1-11

10.11 Applicability of the rules of evidence [OCGA 24-1-2]

A. The rules of evidence shall apply in all trials by jury in any court in this state.

B. The rules of evidence shall apply generally to all nonjury trials and other fact-finding proceedings of any court in this state subject to the limitations in C and D below.

C. The rules of evidence, except those with respect to privileges, shall not apply in following situations:

1. The determination of questions of fact preliminary to admissibility of evidence when the issue is to be determined by the court under OCGA 24-1-104;

2. Criminal proceedings before grand juries;

3. Proceedings for extradition or rendition;

4. Proceedings for revoking parol;

5. Proceedings for the issuance of warrants for arrest and search warrants except as provided by OCGA 17-4-40(b);

6. Proceedings with respect to release on bond;

7. Dispositional hearings and custody hearings in juvenile court; or

8. Contempt proceedings in which the court, pursuant to OCGA 15-1-4(a), may act summarily.

D. Applicability of the rules of evidence will be subject to the following exceptions:

1. In criminal commitment or preliminary hearings in any court, the rules of evidence shall apply, except that hearsay shall be admissible.

2. In in rem forfeiture proceedings, the rules of evidence shall apply, except that hearsay shall be admissible in determining probable cause or reasonable cause.

3. In presentence hearings, the rules of evidence shall apply except that hearsay and character evidence shall be admissible.

4. In administrative hearings, the rules of evidence as applied in trial of nonjury civil actions shall be followed, subject to special statutory rules or agency rules as authorized by law.

E. Except as modified by statute, the common law as expounded by Georgia courts shall continue to be applied to the admission and exclusion of evidence and to procedures as trial.

F. When Georgia authority is lacking on application of the Rules, we look first to 11^th Circuit authority. Other useful authority includes: Paul S. Milich, Courtroom Handbook on Georgia Evidence(2012) and Paul S. Milich,Georgia's New Evidence Code - an Overview, 28 GSU L.Rev. 379 (2012) (Available at: http://digitalarchive.gsulr/vol28/iss2/3).

10.12 Admissibility:

A. Generally, relevant evidence is admissible and irrelevant evidence is inadmissible [OCGA 24-4-402; see 10.2].

B. Technical legal issues on admissibility of evidence, such as privilege, qualification of a witness, scientific basis for expert opinion, hearsay exceptions, agent admissions are determined by the court, and the court is not bound by the rules of evidence in determining whether the factual predicate is present [OCGA 24-1-104(a)].

C. When relevancy of the evidence is dependent upon a factual predicate., only admissible evidence may be considered in the foundation. [OCGA 24-1-104(b)].

Test - objection, if true, destroys relevance of evidence - such as: whether evidence is genuine, whether a lay opinion is rationally based on witness's perception, whether chain of custody has been shown, whether party adopted the statement of another by silence. [In a jury trial, the judge acts as gatekeeper as whether reasonable jury could find that foundation is true, and then jury makes own determination.]

10.13 Evidence classifications:

A. Real Evidence, Documentary Evidence and Testimonial Evidence -Definitions:

1. Real evidence [see OCGA 24-9-901(b)(1-4)1(physical evidence) is tangible, consists of things involved in the underlying events at issues, as distinguished from assertions of witnesses about things, or demonstrative evidence which is created to illustrate facts and opinions.

2. Demonstrative evidence - Charts, photos, models, courtroom experiments, and reenactments. Sometimes admissible mechanical representative evidence such as photos, x-rays, and recordings are characterized as "real evidence."

• Demonstrative exhibits - Exhibits can also be created to aid in explanation to the fact-finders, illustrate the testimony, contain points of argument, summarize information found in the exhibits, etc. [OCGA 9-10-183; Grant v. State, 245 Ga. App. 652, 538 SE2d 540 (2000)(discretionary with judge)]. Imagery, illustration, etc., should be based upon admissible evidence. In a jury trial, these exhibits do not usually go out with the jury, but there is no such restriction in bench trials.

3. Documentary evidence is in the form of a writing - i.e., will, deed, lease, promissory note, letters, etc.

4. Testimonial evidence is oral evidence given by a witness under oath. Generally given in response to questions asked by attorneys or the court.

B. Direct and Circumstantial Evidence - Definitions:

1. Direct evidence is that which immediately points to the question at issue without an inferential process; communicated by those having actual knowledge by means of their senses [Scott v. State, 57 Ga. App. 489, 195 SE 923 (1938)].

2. Circumstantial evidence is evidence, which does not prove an ultimate fact, but rather an inference from which the ultimate or main fact can be drawn [Harris v. McClain, 152 Ga. App. 447, 263 SE2d 233 (1979)].

10.2 RELEVANCE

10.21 Determination of relevance:

A. Definition - Evidence which has any tendency to make the existence of any fact that is of any consequence to the determination of an action more or less probable than it would be without the evidence is logically relevant and probably admissible [OCGA 24-4-401; Schroeder v. Hunter Douglas, Inc.,172 Ga. App. 897, 324 SE2d 746 (1984)].Every act or circumstance that serves to elucidate or throw light upon a material issue is relevant [Dep't. of Transp. v. Lewyn,168 Ga. App. 283, 308 SE2d 684 (1983)].

B. In determining whether evidence is logically relevant, ask:

1. What proposition is the evidence being used to prove?

2. Is this proposition a material issue in the case?

3. Is the evidence probative of that proposition?

C. If evidence being offered relates to a time, an event, or person other than the time, event or person(s) directly involved in the controversy under consideration, relevancy is questionable [Sammons v. Webb, 86 Ga. App. 382, 71 SE2d 832 (1952)].

D. Where relevancy or competency (see 10.53) of evidence is doubtful, it should be admitted and its weight left to determination of the fact finder [Dep't of Transp. v. Gunnels,175 Ga. App. 632, 334 SE2d 197 (1985)].

E.

NOTE In Magistrate Court, since there are no jurors to be prejudiced by introduction of non-relevant evidence, such evidence may be admitted whether or not it is objected to. It is assumed the judge will disregard such non-relevant evidence and enter his/her judgment based on the competent evidence.

10.22 Recurring relevance problems:

A. Character of Parties:

1. The character of the parties is generally irrelevant, but may be admissible if falls under exceptions outlined in OCGA 24-4-404 and 24-4-405.

2. When a fiduciary is accused of fraud, evidence offered by the fiduciary of his/her good character is admissible to show he/she did not commit the fraudulent act [Life Ins. Co. v. Lawler,211 Ga. 246, 85 SE2d 1 (1954)].

NOTE Witnesses may always be impeached for bad reputation for truthfulness in civil cases (see 10.57C). A party who testifies is like any other witness [Messmore v. Roth, 185 Ga. App. 862, 366 SE2d 318 (1988)], except testifying criminal defendant [see OCGA 24-6-609] (see 10.57C for when criminal defendants may be impeached).

General carelessness or negligence may not be proved by showing party was careless on other occasions.

B. Habit or Routine Practice: Habit, meaning the course of behavior of a person regularly repeated in like circumstances, and routine practice of an organization is admissible to prove that conduct was in conformity with that habit or routine practice [OCGA 24-4-406].

• Habit- requires evidence of practice so uniform that fact-finder could conclude that practice was undertaken almost always [Thompson v. Boggs, 33 F.3d 847, 854 (7th Cir. 1994); see Leo v. Williams, 207 Ga. App 321, 428 SE2d 108 (1993) ("fixed and uniform")].

• Routine practice of an organization is admissible to prove that conduct was in conformity with that habit or routine practice [OCGA 24-4-406]. Witness should: (1) describe routine from personal knowledge, (2) affirm routine was followed at relevant time, (3) affirm that point at issue would have been subject to routine. Standard in business context is not as strict as for habit.

C. Similar transactions in criminal cases [OCGA 24-4-404(b)]. "Shall not be admissible to prove the character of a person in order to show action in conformity therewith." Evidence formerly admitted under "bent of Mind" and "course of conduct" now generally inadmissible. But bad acts preparing for or otherwise connected with and leading up to or during the crime are admitted as "intrinsic" to the offense (formerly one of the many aspects of "res gestae"). Common grounds for showing prior bad acts are: proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident. May also be used to rebut Defendant's testimony (opening the door) [U.S. v. Bradley, 644 F.3d 1213, 1273 (11^th Cir. 2100)];

Prior notice generally required.

• Prior difficulties (common to domestic violence) - where there is a prior relationship between the parties, prior difficulties (such as assaults, quarrels, and threats) are admissible to show motive and intent where there is a logical relationship to the crime [Wall v. State, 269 Ga. 506, 500 SE2d 904 (1998); accord, Gov't of Virgin Islands v. Harris, 938 F.2d 401 (3d Cir. 1991)]. No prior notice was required for prior bad acts to show prior difficulties under prior law, and the same is true under federal authority for evidence to prove motive [U.S. v. Kerr, 778 F.2d 690 (11^th Cir. 1985)].

• DUI - Prior offenses refusal cases [see OCGA 24-4-417].

• Sex crimes [OCGA...