Evidence

• Publication year: 2021

Evidence

John E. Hall Jr.

W. Scott Henwood

Leesa Guarnotta

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Evidence

John E. Hall, Jr.^*

W. Scott Henwood^**

Leesa Guarnotta^***

I. Introduction

The 2020 Coronavirus (COVID-19) pandemic brought with it many firsts, including a year-long moratorium on civil and criminal jury trials. As of June 2021, many counties across the state expected continued stays of civil jury trials. Nevertheless, Georgia's appellate courts continued to develop Georgia's evidence laws in the eighth year since the implementation of Georgia's new Evidence Code.¹ This Article discusses the developing evolution of the new Georgia Evidence Code, Official Code of Georgia Annotated (O.C.G.A.) Title 24, by addressing developments of Georgia's evidence rules from the period of June 1, 2020, through May 31, 2021.² Specifically, this Article addresses: (1) exceptions to the rule against hearsay; (2) rejections of the former Evidence Code; and (3) continued adoption of federal interpretations.

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II. Possible Expansion of Hearsay Objections

Other firsts developed in response to the COVID-19 pandemic include the development of COVID-19 vaccines, the expansive use of Emergency Use Authorizations in preventing and mitigating the spread of coVID-19, and the particularity of certain personal protective devices. These firsts are likely to lead to litigation or otherwise serve as issues critical in the defense of COVID-19 liability cases. Accordingly, information contained on the label of such products and how to admit such information into evidence becomes important. The Court of Appeals of Georgia left the question of admissibility of product labels open in the case of Childers v. State.³

Childers arose out of a 2019 police operation to inspect retail establishments' compliance with laws preventing the sale of vape products to underaged individuals. specifically, Childers, the clerk at OLE 5 Vapor, sold products containing nicotine salt to two underage operatives without asking for proof of age, resulting in her furnishing a vapor product to a minor pursuant to O.C.G.A. § 16-12-171(a)(1)(A).⁴ During Childers's bench trial, the judge admitted into evidence a photo of the bottle's label identifying the contents as "nicotine salt" over Childers's motion in limine. The trial court stated that the photo was admissible under O.C.G.A. § 24-8-803,⁵ with reference to a specific hearsay exception. Childers was convicted and sentenced to twelve months of probation.⁶

On appeal, the Court of Appeals of Georgia first endeavored to determine which hearsay exception would permit admission of the photo.⁷ The court determined that the admission was pursuant to subsection 17, market reports and commercial publications, based on the trial court's reference to a decision in another case.⁸ In Ledford v. State,⁹ which was decided under the old Evidence Code,¹⁰ evidence of a spray paint can's label was inadmissible under a hearsay exception,¹¹ despite

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the dissent's argument for admission under the "necessity" exception and reference to label exceptions from other exemptions.¹²

Next, the court of appeals in Childers acknowledged that "[w]hether the label on the container of a vapor product comes within an exception to the general rule against hearsay is a matter of first impression in Georgia."¹³ However, the court declined to rule on the priority of the admission.¹⁴ Instead, the court upheld Childers's conviction based on independent testimony, stating only that any error in admitting the label was harmless.¹⁵

Although not a conclusive ruling, Childers and Ledford, along with the new Evidence Code's admission of the "market reports and commercial publications," created a strong argument for admissibility of labels as an exception under O.C.G.A § 24-8-803(17).

III. Objections: Use Them or Lose Them

"Raise it or waive it" is a phrase often first introduced to attorneys in their first-year civil procedure class. But what if you already have a motion in limine excluding specific evidence from your trial, does that satisfy the "raise it" requirement? The Supreme Court of Georgia addressed this question in Williams v. Harvey.¹⁶

Williams arose out of a collision leading to Williams's traumatic brain injury, onset of seizures, and multiple fractures. Prior to trial, the parties filed several motions in limine, including Defendants' motion to exclude "[s]tatements, contentions, arguments, inferences, or proffer of any evidence to elicit sympathy for the Plaintiff or any individual." Although the trial court reserved ruling on this motion, it stated that "any statements, arguments, or evidence offered predominantly to overly inflame the emotions of the jury or to [e]licit excessive or undue sympathy, hostility, or prejudice for or against either party is prohibited."¹⁷

During closing arguments, both parties renewed their opening arguments' suggested verdict values. The plaintiff claimed $3.4 million

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in special damages and $20 million for pain and suffering, and the defense countered with special damages being between $4.1 million and $5.1 million and for pain and suffering between $1.5 million to $2.5 million. Following an $18 million verdict, the defense moved for a new trial, arguing inter alia that plaintiff's closing argument violated the golden rule as prohibited by the trial court's earlier order. The trial court denied the motion and found no violation of the golden rule.¹⁸

The Court of Appeals of Georgia disagreed and reversed the judgment, characterizing plaintiff's comparison of a nursing home life care plan option to a "death warrant[,]" as a clear violation of the trial court's order.¹⁹ The court of appeals relied on case law under the old evidence code to hold that motions in limine preserve issues for appeal even without contemporaneous objections.²⁰

The Supreme Court of Georgia granted certiorari to determine whether a ruling on a motion in limine is sufficient to preserve appeal despite the absence of contemporaneous objections.²¹ To answer this question, the court turned to the Advisory Committee's Note on the 2000 amendments to Federal Rules of Evidence 103(b) which states:

Even where the court's ruling is definitive, nothing in the amendment prohibits the court from revisiting its decision when the evidence is to be offered. If the court changes its initial ruling, or if the opposing party violates the terms of the initial ruling, objection must be made when the evidence is offered to preserve the claim of error for appeal. The error, if any, in such a situation occurs only when the evidence is offered and admitted.²²

The court held that Georgia's adoption of the new Evidence Code, patterned after the federal rules and guided by federal interpretation, abrogated prior Georgia law that did not require contemporaneous objection to preserve errors ruling for a violation of a motion in limine.²³ Accordingly, the defense was required to object contemporaneously regardless of the ruling on its motion in limine.²⁴ The court added that requiring contemporaneous objection:

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[Allows the trial court] to take remedial action, including providing curative instructions to the jury and admonishing counsel for the violation if necessary . . . .

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