Evidence - John E. Hall, Jr. and W. Scott Henwood

• Publication year: 2011

Evidence

by John E. Hall, Jr.* and W. Scott Henwood**

Facts are stubborn things; and whatever may be our wishes, our inclinations, or the dictates of our passion, they cannot alter the state of facts and evidence. John Adams¹

I. Introduction

The biggest story in Georgia Evidence law this year² is undoubtedly the Georgia General Assembly's decision to align Georgia's evidence code with the Federal Rules of Evidence.³ Proponents of House Bill 24 describe the former rules, many of which have been on the books for more than 150 years, as archaic and inconsistent.⁴ Paul S. Milich, professor of law at Georgia State University College of Law and the reporter for the State Bar of Georgia committee that proposed the new rules of evidence for Georgia, described the way the outdated rules impeded the modern practice of law in Georgia: "Our 19th-century

* Founding Partner in the firm of Hall, Booth, Smith & Slover, P.C., Atlanta, Georgia. Mercer University (B.A., 1981); Mercer University, Walter F. George School of Law (J.D., 1984). Member, Mercer Law Review (1982-1984); Student Writing Editor (1983-1984). Member, State Bar of Georgia.

** Of Counsel for the firm of Hall, Booth, Smith & Slover, P.C., Atlanta, Georgia. Georgia State University (B.B.A., 1976); Woodrow Wilson College of Law (J.D., 1978). Former reporter of decisions for the Georgia Supreme Court and Georgia Court of Appeals. Member, State Bar of Georgia.

1. John Adams, Argument in Defense of the British Soldiers in the Boston Massacre Trials (Dec. 4, 1770), in 3 LEGAL PAPERS OF JOHN ADAMS 269 (L. Kinvin Wroth & Hiller B. Zobel eds., 1965).

2. For an analysis of Georgia evidence law during the prior survey period, see John E. Hall, Jr. & W. Scott Henwood, Evidence, Annual Survey of Georgia Law, 62 MERCER L. REV. 125 (2010).

3. Ga. H.R. Bill 24, Reg. Sess.

4. Paul S. Milich, Court Rules will Benefit Public, ATLANTA J. CONST., May 25, 2011, http://www.ajc.com/opinion/court-mles-will-benefit-957487.html.

evidence rules do not fit the 21st century very well. Phones did not exist when Georgia's evidence code was written in 1860, let alone cars, videos, computers, or even Facebook."⁵ With this change, Georgia joins forty-three other states that have adopted the Federal Rules of Evidence, including all states bordering Georgia.⁶ Attorneys practicing in Georgia may have some studying to do to become familiar with the new code; however, the Bill's supporters argue that this should not be a problem since many attorneys have experience in federal court or remember some of the rules from their law school days.⁷

These changes represent the culmination of a twenty-year struggle to conform Georgia's code to the Federal Rules of Evidence, which began when Governor Nathan Deal, then leader of the Senate, carried the proposed changes to a unanimous vote in the Senate, only to be defeated in the House.⁸ Because the new legislation becomes effective January 1, 2013,⁹ it does not affect cases that are surveyed in this article, which were decided from June 1, 2010 to May 31, 2011. However, judges have already started to take note of the forthcoming changes.¹⁰

II. Best Evidence Rule

As supporters of Georgia's adoption of the Federal Rules of Evidence have noted, Georgia courts have struggled to apply the Georgia Rules of Evidence in determining the admissibility of various types of electronic evidence.¹¹ One area of evidence law in which Georgia has struggled with technological advances is the application ofthe Best Evidence Rule, which governs the version of documents that can be used as evidence when the contents ofthe documents are at issue.¹² The Georgia version

5. Id.

6. Id.

7. John Gramlich, Georgia Rewrites its Trial Rules, Replacing a 19th Century System, STATELINE (May26,2011),http://www.stateline.org/live/printable/story?contentId=577213.

8. Milich, supra note 4.

9. Ga. H.R. Bill 24, § 1, Reg. Sess.

10. See Bethel v. Fleming, 310 Ga. App. 717, 723 n.6, 713 S.E.2d 900, 905 n.6 (2011). The court in Bethel noted the following:

The General Assembly recently amended the Georgia Code to substantially revise, supersede, and modernize provisions relating to evidence "to adopt the Federal Rules of Evidence, as interpreted by the Supreme Court of the United States and the United States circuit courts of appeal as of January 1, 2013 . . . ." See House Bill 24, Ga. L. 2011, p. 1, § 1. Although the amended code sections do not apply in this case, we nevertheless note that they are consistent with our conclusion here. See House Bill 24, Ga. L. 2011, p. 3, § 2.

Id.

11. See Milich, supra note 4.

12. See, e.g., Baptiste v. State, 288 Ga. 653, 656, 706 S.E.2d 442, 445 (2011).

of the rule codified in section 24-5-4 of the Official Code of Georgia

Annotated (O.C.G.A.),¹³ reads:

(a) The best evidence which exists of a writing sought to be proved shall be produced, unless its absence shall be satisfactorily accounted

for.

(b) Written evidence of a writing is considered of higher proof than oral evidence. In all cases where the parties have reduced their contract, agreement, or stipulation to writing and have assented thereto, such writing is the best evidence of the same.¹⁴

The Federal Rules of Evidence similarly require production of the original writing to prove its contents.¹⁵ However, in contrast to Georgia's articulation of the original writing requirement, the federal version provides for the use of electronically duplicated copies as acceptable versions of the original.¹⁶ For example, computer printouts are included in the definition of original: "If data are stored in a computer or similar device, any printout or other output readable by sight, shown to reflect the data accurately, is an 'original.'"¹⁷ The Georgia Supreme Court recently interpreted the lack of a similar provision regarding computer printouts to mean that, under Georgia's articulation of the Best Evidence Rule, printouts from computers, notwithstanding their accuracy, are not "originals."¹⁸

In Baptiste v. State,¹"⁹ Gerard George Baptiste objected at a pretrial hearing for his felony murder trial to the admission ofevidence collected during searches of his residence and vehicle. In response to this objection, the prosecution produced copies of warrants issued for the searches at issue. Attached to the copies of the warrants was an unsigned, unsworn affidavit by the county investigator.²⁰ The investigator testified that the original warrants and his original signed affidavit had been "retained and sealed" by the issuing judge, who was now unable to locate the original documents.²¹ The investigator also testified that, in the presence of the assistant district attorney and a

13. O.C.G.A. § 24-5-4 (2010).

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