Dancing With the Big Boys: Georgia Adopts (most Of) the Federal Rules of Evidence - David N. Dreyer, F. Beau Howard, and Amy M. Leitch

• Publication year: 2011

Special Contribution

Dancing with the Big Boys: Georgia Adopts (most of) the Federal Rules of Evidence

by David N. Dreyer* F. Beau Howard** and Amy M. Leitch***

"The object of all legal investigation is the discovery of truth."1 "You can't handle the truth." Jack Nicholson, A FEW GOOD MEN2

* Attorney in the firm of Chamberlain, Hrdlicka, White, Williams & Aughtry, Atlanta, Georgia. Georgia State University (B.A., 2001); Emory University School of Law (J.D., 2004). Member, State Bar of Georgia. ** Attorney in the firm ofChamberlain, Hrdlicka, White, Williams & Aughtry, Atlanta, Georgia. University of Tennessee, Knoxville (B.A., 2000); The George Washington University Law School (J.D., 2003). Member, State Bars of Virginia and Georgia. *** Attorney in the firm of Chamberlain, Hrdlicka, White, Williams & Aughtry, Atlanta, Georgia. Davidson College (B.A., 2004); Emory University School of Law (J.D., 2008). Member, State Bars of Florida and Georgia. The Authors would like to thank Chamberlain, Hrdlicka, White Williams & Aughtry, whose assistance and support made this Article possible. 1. O.C.G.A. § 24-1-2 (2010). 2. A Few Good Men (Columbia Pictures 1992).

I. Let's Dance Georgia has become the forty-fourth state to model its new evidence rules on the Federal Rules of Evidence.3 The new code will go into effect on January 1, 2013,4 150 years from when Georgia's first legal code was published.5 Passage of the 2013 Georgia Evidence Code did not come easy, but was a product of years of debate, compromise, and vetting from legislators, the judiciary, academia, and members and groups of the practicing bar. The new code is largely derived from the Federal Rules of Evidence, but Georgia has retained a significant amount of evidence rules from its prior code and rejected certain provisions of the Federal Rules of Evidence. This Article reviews the history of Georgia's evidence rules and the efforts to amend them, summarizes the changes between the current Georgia Evidence Code

3. Ga. H.R. Bill 24, Reg. Sess. [hereinafter HB 24] (codified as amended in scattered sections of O.C.G.A. tits. 24 to 35 (Supp. 2011)) (effective Jan. 1, 2013), available at http://www.legis.ga.gov/Legislation/en-US/display.aspx?Legislation=31996; see also 6 Jack B. Weinstein & Margaret A. Berger, Weinstein's Federal Evidence T-1 [Mar. 2010] (Joseph M. McLaughlin ed., 2d ed. 2011) (reporting that at the time of publication forty-two states have modeled their rules on the Federal Rules of Evidence). Illinois was the forty-third state to adopt an evidence code derived from the Federal Rules of Evidence, approving new rules on September 27, 2010, which became effective on January 1, 2011. See Special Supreme Court Committee on Evidence, In re Illinois Rules of Evidence, MR 24138 (Sept. 27, 2010), http://www.state.il.us/court/SupremeCourt/Evidence/Evide nce.pdf. California, Kansas, Massachusetts, Missouri, New York, and Virginia are the six states that have not adopted the framework of the Federal Rules of Evidence. See 6 Weinstein & Berger, supra at T-8. Around 2002, the California Law Revision Commission ordered a study to determine whether its evidence code should be amended to conform to the Federal Rules "either to improve the California rule or for the sake of uniformity." California Law Revision Commission, Comparison of Evidence Code with Federal Rules: Introduction of Study and Definition of Hearsay, Memo 2002-41 (Aug. 29, 2002), http://www.clrc.ca.gov/pub/2002/MM02-41.pdf. The background study consisted of a series of discrete parts, with the final installment being submitted to the commission in 2009. Miguel A. Mendez, IX. General Provisions: Conforming the California Evidence Code to the Federal Rules of Evidence, 44 U.S.F. L. Rev. 891, 892 (2010). However, the project is apparently on hold. See California Law Revision Commission, Review of California Evidence Code (last updated Nov. 19, 2009), http://www .clrc.ca.gov/K200.html#Minutes. Massachusetts has not adopted a set of rules of evidence but encourages the use of the Massachusetts Guide to Evidence (Feb. 2011), http://www.mass.gov/courts/sjc/guide-to-evidence/massguidetoevidence.pdf. The guide is organized and numbered like the Federal Rules of Evidence and includes notations in every section that explain when the rules are identical or similar to the Federal Rules of Evidence or how they depart from them. See id. 4. Ga. H.R. Bill 24 § 1, ll. 19-21. 5. See Paul S. Milich, Georgia Rules of Evidence § 1:1 (2010).

and the 2013 Georgia Evidence Code, and explains the notable differences between the 2013 Georgia Evidence Code and the Federal Rules of Evidence. II. Golden Years: The History of Georgia's Evidence Code

A. Creation of Georgia's Evidence Code 1. National Codification Movement. In 1858, the Georgia General Assembly appointed three commissioners to draft a condensed legal code that embodied the laws of Georgia as then recognized by Georgia courts, including the rules of evidence.6 The push for codification in Georgia "was a product of the national codification movement of the mid-19th century."7 Many states' rules were based on decisional law, and where state statutory collections did exist in the early nineteenth century, they were arranged either chronologically with no regard to subject matter or by broad topics that became confusing over time.8 Several states looked to improve the compilations of their laws through codification during this time, including New York, Virginia, Alabama, Kentucky, and Georgia.9 The merits of codification were hotly debated in the various states.10 Opponents questioned whether codification could even be accomplished, criticized the cost, and proclaimed that a code would result in upheaval and confusion, though these criticisms were unsupported by specific authority.11 Proponents pointed out the obvious advantages that a code offered, namely that a simplified set of laws organized into chapters and titles and condensed to reduce redundancies in existing law would "place [the laws] within the knowledge of the citizens of the State," or in other words, make them more accessible.12 Georgia legislators recognized

6. Id.; Givens v. Ichauway, Inc., 268 Ga. 710, 716, 493 S.E.2d 148, 154 (1997) (Fletcher, P.J., dissenting) (citations omitted). Judge David Irwin was one of the three commissioners and prepared the Code of Practice, which included the evidence rules. Milich, supra note 5. 7. Milich, supra note 5; see generally Erwin C. Surrency, The Georgia Code of 1863 and Its Place in the Codification Movement, 11 J.S. Legal Hist. 81 (2003). 8. Surrency, supra note 7, at 83, 85. 9. Id. at 85-89. 10. Id. at 83-86. 11. Id. at 84, 86. 12. Id. at 87 (citation and internal quotation marks omitted); Milich, supra note 5.

that a simplified code would allow its citizens to secure a "more speedy and certain attainment of the ends of justice."13 2. Enactment of the Georgia Code. The commissioners finished drafting Georgia's first legal code in 1860 and met with a committee of the General Assembly to examine the proposed code section by section.14 The code was derived from several sources, including the following: Georgia common law, the Georgia Constitution, Georgia statutes, Georgia Supreme Court decisions, English statutes, the civil and canon law of England (to the extent they were recognized in Georgia), Blackstone's Commentaries,115 Professor Simon Greenleaf's Treatise on the Law of Evidence,116 and interestingly, Alabama's code.17 It was divided into four parts, and the evidence provisions were included in Part III, the Practice Code.18 Many of the evidentiary principles in the proposed code were taken from the contemporary texts ofthat time period with a few ofthe evidence sections being taken from then-existing Georgia statutes.19 The General Assembly committee made some modifications to the code and recommended that the legislature accept it as edited without attempting to dissect it again section by section.20 The General Assembly accepted this suggestion and adopted the code as drafted in 1860 with an effective date of January 1, 1862.21 However, the code was not published until 1863 (Code of 1863 or Code) due to the Civil War and a resulting shortage of "quality paper stock," and the Code was further changed in the interim.22 One author noted that "[i]t can be

13. Surrency, supra note 7, at 87 (internal quotation marks omitted); Resolution of Dec. 20, 1847, 1847 Ga. Laws 311. 14. Surrency, supra note 7, at 90. Before meeting with the committee, the commissioners gathered in Atlanta to go through the proposed code by themselves, section by section, with sessions lasting from 8:00 a.m. until evening every day of the week until the task was completed. Id. 15. Sir William Blackstone, Commentaries on the Laws of England (1765). 16. Simon Greenleaf, Treatise on the Law of Evidence (1883). 17. Surrency, supra note 7, at 89, 98 (reporting that the sponsor of the bill calling for a commission to be formed to draft a code stated that the code was to be "modeled if practicable, upon the present code of Alabama") (internal quotation marks omitted); Act of Dec. 9, 1858, 1858 Ga. Laws 95; Milich, supra note 5. 18. Surrency, supra note 7, at 92, 94. 19. Id. at 95. 20. Id. at 90. 21. Id. 22. Milich, supra note 5; Surrency, supra note 7, at 96; Paul...