Evidence

• Publication year: 2020

Evidence

John E. Hall Jr.

W. Scott Henwood

Leesa Guarnotta

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Evidence

by John E. Hall, Jr.^*

W. Scott Henwood^**

and Leesa Guarnotta^***

I. Introduction

Even after the seventh year since the implementation of Georgia's new Evidence Code,¹ Georgia's evidence rules continue to evolve as appellate courts face new issues and delve into more nuanced areas of the rules. This Article details some of this evolution of the new Georgia Evidence Code, Official Code of Georgia Annotated (O.C.G.A.) Title 24,² by addressing developments of Georgia's evidence rules from the period of June 1, 2019, through May 31, 2020. Specifically, this Article addresses (1) limitations on the attorney-client privilege; (2) admissibility of witness testimony as it relates to late-identified witnesses, witness competency, and co-conspirator statements; (3) the Confrontation Clause³ as it relates to child hearsay and non-verbal conduct; and (4) limitations of relevant evidence as it relates to Georgia's Rape Shield Law and evidence of victim seatbelt use in criminal trials.

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II. Limitations on the Attorney-Client Privilege

O.C.G.A. Section 24-5-501(a)(2)⁴ codifies one of the oldest, most sacred common law privileges—attorney-client communications. However, in Hill, Kertscher & Wharton, LLP v. Moody,⁵ the Georgia Supreme Court expanded the existing implied waiver of the longstanding attorney-client privilege as it relates to legal malpractice claims by implying the waiver to those communications with attorneys not named in the malpractice action.⁶ While it is longstanding law that a client implicitly waives the attorney-client privilege of an underlying matter when suing for legal malpractice on that matter, Moody presented the novel issue of whether this waiver applies to those communications with other attorneys in the same matter whom the client chose not to sue.⁷

In Moody, Daryl Moody and two associated businesses (collectively referred to as "Moody") obtained Hill, Kertsher & Wharton, LLP's (HKW) advice regarding the termination of the president of a company Moody recently invested in. HKW also represented Moody in a suit initiated by the former president in California following his termination. During this representation, HKW failed, inter alia, to assert a lack of personal jurisdiction defense as requested by Moody. Subsequently, Moody retained Holland & Knight LLP (Holland & Knight), a firm that also handled Moody's corporate work, to disqualify HKW from the California action and assume representation of Moody following HKW's dismissal. Ultimately, the trial court ruled in favor of the former president in the California suit. This ruling led to the present legal malpractice action against HKW, in which Moody failed to name Holland & Knight as a party.⁸

In defense to the legal malpractice allegations, HKW stated that Moody directed HKW to follow Holland & Knight's instructions prior to the initiation of the disqualification action. Accordingly, HKW served a non-party request for production of documents on Holland & Knight regarding Holland & Knight's work for Moody as it related to Moody's corporate matters, the disqualification suit, and the California suit. Both Holland & Knight and Moody objected to this request on the basis of attorney-client privilege and work-product doctrine. HKW responded by arguing that Moody implicitly waived any attorney-client privilege with respect to all counsel involved in the underlying matter, including Holland & Knight. The trial court agreed with HKW, but granted

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Moody's request for a certificate of immediate review.⁹ On appeal, the Georgia Court of Appeals reversed the trial court's decision stating that "the Supreme Court of Georgia has indicated implied waivers of the attorney/client privilege should be narrowly drawn."¹⁰ The court of appeals noted that although both Holland & Knight and HKW represented Moody in the matters underlying the present legal malpractice action, Holland & Knight was retained after HKW's alleged malfeasance. Accordingly, there was no basis for waiver of Moody and Holland & Knight's attorney-client privilege.¹¹

After a grant of certiorari, the Georgia Supreme Court reversed the Georgia Court of Appeals' holding.¹² The court stated that the appellate court erred in rejecting the trial court's finding that Holland & Knight represented Moody in connection with the corporate actions, the disqualification action, and the California suit.¹³ Given Holland & Knight's involvement with all three matters, it is possible its actions may have affected the causation, reliance, and damages necessary for Moody's legal malpractice action. Thus, the court determined that, despite failing to name Holland & Knight as a party, Moody waived the attorney-client privilege as to Holland & Knight as well.¹⁴ To hold otherwise would allow a client to "use as a sword the protection which the Legislature awarded them as a shield."¹⁵

III. Admissibility of Witness Testimony

A. Late-Identified Witnesses

In Lee v. Smith,¹⁶ the Georgia Supreme Court overruled the Georgia Court of Appeals' holding in Moore v. Cottrell,¹⁷ which affirmed a trial court's exclusion of expert testimony based solely on the late identification of the expert.¹⁸ In doing so, the court enumerated, for the

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first time, the factors trial courts must consider prior to witness exclusion.¹⁹

In Lee, the plaintiff disclosed a new expert on plaintiff's newly stated future lost earnings claim on the final day for witness disclosure as set by the scheduling order. A week later, Lee identified his anticipated rebuttal witness. At a pretrial hearing, the trial court excluded Lee's rebuttal expert's testimony based on Lee's failure to identify the witness as required by the scheduling order. Lee argued that his failure to comply with the scheduling order was a result of Smith's failure to identify his witnesses until the last day allowed by the scheduling order. Nevertheless, the court of appeals affirmed the trial court's exclusion.²⁰

The supreme court granted certiorari and reversed the appellate court's decision.²¹ The court acknowledged a trial court's discretion to set deadlines and sanction a party for noncompliance with these deadlines.²² Notwithstanding, the court noted that trial courts may not impose harsher sanctions than necessary to vindicate the court's authority.²³ To determine whether a sanction is appropriate, the court looked to other jurisdictions to establish the factors a trial court must consider before excluding a late-identified witness.²⁴ After this review, the court determined trial courts should consider

(1) the explanation for the failure to disclose the witness, (2) the importance of the testimony, (3) the prejudice to the opposing party if the witness is allowed to testify, and (4) whether a less harsh remedy than the exclusion of the witness would be sufficient to ameliorate the prejudice and vindicate the trial court's authority.²⁵

B. Witness Competency

In Little v. Jim-Lar Corporation,²⁶ the Georgia Court of Appeals addressed, for the first time specifically under Georgia law, the effect a guardianship proceeding has on a witness's competency under Georgia's new Evidence Code. In Little, both Myra Little and her guardian and conservator brought an action for negligence after Little suffered an allergic reaction when Defendant, Jim-Lar Corporation, served Little

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peach pie instead of apple pie. In a verified response to Defendant's interrogatories, Little, not her guardian, provided a description of the incident. However, the trial court did not consider Little's verified responses in adjudicating Jim-Lar Corporation's summary judgment motion. Instead, the trial court found the responses inadmissible due to Little's incompetence. On appeal, Little argued that the trial court improperly excluded her interrogatory responses as she had not yet received a guardian and, accordingly, was not incompetent at the time of verification.²⁷

In affirming the trial court's decision, the court of appeals noted that the requirement for appointment of a guardian under O.C.G.A. § 29-4-1(a)²⁸ is that the court determines "the adult lacks sufficient capacity to make or communicate significant responsible decisions concerning his or her health or safety."²⁹ However, this is not the standard used to determine whether an individual is a competent witness under the Evidence Code. Rather the court referred to O.C.G.A. § 24-6-601,³⁰ which states that "every person is competent to be a witness."³¹ Further, the court referred to federal precedent that allows even those individuals who are not mentally competent to testify.³² In such circumstances, the rules rely on jurors to evaluate the witness's testimony.³³

Despite the general competency rule created by O.C.G.A. § 24-6-601, the court noted that a trial court has the discretion to rule a witness incapable of testifying.³⁴ This authority is independent of a separate guardianship proceeding, regardless of which stage of the proceeding the witnesses are at when they offer their testimony.³⁵ Accordingly, without a transcript of the trial court's hearing on Little's competency, the court of appeals affirmed the exclusion of Little's interrogatory responses.³⁶

C. Statements of a Co-Conspirator

In Womack v. State,³⁷ the Georgia Court of Appeals answered another question of first impression—whether the subsequent acquittal of a

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co-conspirator who made hearsay statements retroactively affects a co-defendant's trial.³⁸ Ultimately, the court answered this question in the negative.³⁹

Womack is the result of an alleged armed robbery by Xavier Womack, Jakeith Robinson, and Leon Tollette that ended in the death of a security guard. Tollette pleaded guilty to several charges and was sentenced to death. Robinson was then acquitted of malice murder, felony murder, and aggravated assault; however, the jury did not reach a verdict on the...