Evidence

• Jurisdiction: Georgia,United States
• Publication year: 2022
• Citation: Vol. 74 No. 1

Evidence

John E. Hall Jr.

W. Scott Henwood

Krysta Grimes

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Evidence

John E. Hall, Jr.^*

W. Scott Henwood^**

Krysta Gryme^{s ***}

I. Introduction

Georgia's judicial system has continued to grapple with the novel Coronavirus (COVID-19) for more than two years¹ since the Honorable Harold D. Melton, former Chief Justice of the Supreme Court of Georgia, first issued the Order Declaring Statewide Judicial Emergency on March 14, 2020.² That order was extended fifteen times before finally terminating on June 30, 2021.³

Seemingly in response to the world of uncertainties created by COVID-19, Georgia appellate courts took the opportunity to provide some additional interpretation and explanation to various aspects of Georgia's new Evidence Code. This Article highlights some of the continuing interpretations of Georgia's evidence rules in Title 24 of the Official Code

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of Georgia Annotated (O.C.G.A.)⁴ for the period of June 1, 2021 through May 31, 2022.⁵ Specifically, this Article addresses the following topics: (1) interpretation relying on interpretations of the Federal Rules of Evidence; (2) interpretation based on Georgia authority under the former Evidence Code; and (3) utilization of both federal authority and persuasive Georgia authority applying the former Georgia Evidence Code.

II. Aligning Georgia's New Evidence Code with the Federal Evidence Code

Even as the tenth anniversary of the implementation of Georgia's new Evidence Code approaches, Georgia's appellate courts continue to develop Georgia's evidence laws by turning to federal caselaw for guidance.⁶

A. Further Interpretation of Character Evidence Rules

O.C.G.A. §§ 24-4-413,⁷ 24-4-414,⁸ and 24-4-415,⁹ which are based on Federal Rule of Evidence 413,¹⁰ Rule 414,¹¹ and Rule 415,¹² create a true exception to the general rule that character evidence and evidence of prior crimes and acts are not admissible to prove the defendant's propensity to commit that type of offense. In Wilson v. State,¹³ the Supreme Court of Georgia analyzed the requirement for the admission of a prior offense of child molestation.¹⁴ The supreme court explained that Georgia Rule 414(a) supersedes Georgia Rule 404(b)'s general prohibition against the admission of propensity evidence and that the prior offenses need not have resulted in a conviction.¹⁵ As such, the court held that evidence of the prior offense met the relevancy requirement of

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Rule 414(a) and, therefore, the Catoosa County Superior Court did not abuse its discretion in admitting the defendant's prior alleged child molestation offenses.¹⁶

B. Further Interpretations of Evidence Rules Relating to Confessions

Under O.C.G.A. § 24-8-824,¹⁷ to be admissible, a confession must be "made voluntarily, without being induced by another by the slightest hope of benefit."¹⁸ In Lewis v. State,¹⁹ the supreme court focused on whether the hope of benefit induced the defendant's confession.²⁰ Specifically, a confession is untainted where the accused was unaware of any hope of benefit.²¹ In Lewis, the court focused on the defendants failure to demonstrate that a police officer's statements were the reason the defendant decided to confess. Accordingly, the supreme court affirmed the Fulton County Superior Court's admission of the defendant's confession.²²

C. Further Interpretations of the Residual Hearsay Exception

A statement not specifically covered by any law but having equivalent circumstantial guarantees of trustworthiness shall not be excluded by the hearsay rule, if the court determines that: (1) The statement is offered as evidence of a material fact; (2) The statement is more probative on the point for which it is offered than any other evidence which the proponent can procure through reasonable efforts; and (3) The general purposes of the rules of evidence and the interests of justice will best be served by admission of the statement into evidence.²³

The supreme court analyzed what constitutes sufficient "guarantees of trustworthiness" in Ash v. State.²⁴ There, the Fulton County Superior Court considered the fact that the declarant had a close relationship with the witness to be a factor supporting trustworthiness.²⁵ The supreme court accordingly held that there was no abuse of discretion.²⁶

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III. A Look Back at the Former Evidence Code to Understand the New Evidence Code

Where there is no federal counterpart to a provision of the new Evidence Code, Georgia caselaw decided under Georgia's former Evidence Code provides solid groundwork for present litigants to understand how to approach the new version of the rule.²⁷ This was exemplified in Merritt v. State,²⁸ where the Supreme Court of Georgia looked to Georgia caselaw decided under its former version of the "holdover" rule relating to impeaching a witness based on bias or hostility toward a party.²⁹

Shay Alexander Merritt (Merritt) was convicted of, inter alia, malice murder in connection with the shooting death of his wife, Rita Ann Merritt (Rita).³⁰ On appeal, Merritt claimed the Polk County Superior Court erred in two evidentiary rulings under O.C.G.A. § 24-6-622:³¹ (1) the trial court erred by allowing the State to cross-examine a defense witness regarding a prior arrest; and (2) the trial court erred by not allowing evidence regarding Rita's culture.³²

As to the first alleged error, Dr. Abbasi was called to testify about Rita's bipolar disorder diagnosis and treatment, including the medications he prescribed and how they worked and the consequences of not taking them, like suicidal ideations.³³ On cross-examination, Dr. Abbasi responded in the negative when asked whether he was biased against the State. Notwithstanding Dr. Abbasi's negative response, the State approached the bench to inform the trial court of its intention to ask Dr. Abbasi whether he was arrested in 2008 for sexual battery against his patients. Following a proffer during which Dr. Abbasi confirmed that he was in fact arrested for sexual battery in 2008, the State argued this arrest was relevant to show bias under O.C.G.A. § 24-6-622. The trial court allowed the State to pursue this line of

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questioning and determined it was permissible under O.C.G.A. § 24-6-622.³⁴

As to the second alleged error, Merritt sought to introduce evidence relating to the fact that Rita and her family were Romanichal gypsies and alleged cultural bias against outsiders like himself.³⁵ Following the defense counsel's extensive questioning of Rita's sister about her family background and cultural upbringing, the trial court ruled that it would allow questions relating to the family's bias or prejudice against Merritt but not about ethnic background or cultural bias. Subsequently, during the...