Evidence - Marc T. Treadwell

• Citation: Vol. 56 No. 1
• Publication year: 2004

Evidence

Marc T. Treadwell^*

I. Introduction

One of the more interesting things about writing evidence surveys for the Mercer Law Review for almost twenty years has been watching evidentiary rules rise and, sometimes, fall. No rise has been more dramatic than Georgia's necessity exception to the hearsay rule. Its fall, or partial fall, should be equally dramatic as a result of the United States Supreme Court's decision in Crawford v. Washington,¹ which knocked the constitutional underpinnings from underneath the necessity exception. As discussed in many prior surveys, sometimes with tentative and respectful criticism, the necessity exception, despite a few minor setbacks, has become a vehicle for the admission of hearsay of a nature that likely has Professors Wigmore and McCormick spinning in their graves. one could argue that if its expansion were to continue at the same rate, there would soon be little need for witnesses at all; law enforcement officers could simply bring their recorded statements to court and read them to the jury. That is, of course, an exaggeration, but no one can deny that the scope of admissible hearsay bears little resemblance to the hearsay rule of only twenty years ago.

In Crawford defendant contended the trial court improperly allowed the jury to hear his wife's tape recorded statement to police officers, which the prosecution tendered after his wife invoked her spousal privilege, and thus, was unavailable to testify at trial.² The trial court and the Washington Supreme Court, held that the circumstances of the statement made it sufficiently reliable to overcome defendant's argument that the admission of the out-of-court statement violated his Sixth Amendment³ right of confrontation.⁴ In fact, under Ohio v. Roberts,⁵ courts have long allowed the admission of hearsay statements if the statements fell within a "firmly rooted hearsay exception" or if they bore "particularized guarantees of trustworthiness."⁶ It was this latter language—"particularized guarantees of trustworthiness"—that courts across the country interpreted as a green light to admit hearsay testimony. In Georgia this bypass around the Sixth Amendment came to be known as the necessity exception to the hearsay rule.

The Supreme Court granted certiorari in Crawford and took aim at Roberts.⁷ The Court, going back to early English common law, concluded that "the principal evil at which the Confrontation Clause was directed was the civil-law mode of criminal procedure, and particularly its use of ex parte examinations as evidence against the accused."⁸ In other words the drafters of the Sixth Amendment did not intend that it would be limited to in-court testimony.⁹ However, neither did they intend the right of confrontation to apply to all out-of-court statements; the Sixth Amendment expressly encompasses only "witnesses" against the accused.¹⁰ Thus, the Court concluded the Sixth Amendment was intended to apply to "'testimonial'" statements.¹¹ Testimonial statements include affidavits, custodial examinations, prior testimony, and "similar pretrial statements that declarants would reasonably expect to be used 'prosecutorially.'"¹² While the Court did not define with any great precision what is and is not a testimonial statement, it made clear that interrogations by law enforcement officers are, without a doubt, testimonial in nature.¹³

Having decided that the Sixth Amendment applied to defendant's wife's statement, the Court then concluded, again based on its historical analysis, that the framers "would not have allowed admission of testimonial statements of a witness who did not appear at trial unless he was unavailable to testify, and the defendant had had a prior opportunity for cross-examination."¹⁴ The Court decided these two conclusions were clearly inconsistent with Roberts because "[t]he unpardonable vice of the Roberts test, however, is not its unpredictability, but its demonstrated capacity to admit core testimonial statements that the Confrontation Clause plainly meant to exclude."¹⁵ Accordingly, the Supreme Court overruled Roberts.¹⁶

In a concurring opinion, Justice Rehnquist, joined by Justice O'Connor, argued that it was unnecessary to overrule Roberts and claimed that the "Court's distinction between testimonial and nontestimonial statements, contrary to its claim, is no better rooted in history than our current doctrine."¹⁷ However, perhaps the most notable point of the concurring opinion was its assertion that the majority had implicitly recognized "that the mistaken application of its new rule by courts which guess wrong as to the scope of the rule is subject to harmless error analy-sis,"¹⁸ a clear escape valve for state courts that had long admitted constitutionally infirm hearsay statements. As discussed below, Georgia courts have already begun their struggle to reconcile Crawford with their fondness and affection for the necessity exception.

II. Objections

It is a basic, but often overlooked, fact that a party seeking to appeal a trial court's evidentiary ruling excluding evidence must not only make a contemporaneous objection, but must also make an appropriate proffer. In Sharpe v. Department of Transportation,¹⁹ a case discussed in previous surveys,²⁰ the supreme court expanded the contemporaneous objection rule by abolishing the use of an after-the-fact motion to strike illegal evidence.²¹ Sharpe left one exception to the contemporaneous objection rule—hearsay evidence, even if not objected to, that is wholly without probative value and cannot support a verdict.²²

In a previous survey,²³ the author predicted that this exception to the contemporaneous objection rule—like the motion to strike illegal evidence—might soon meet its demise.²⁴ However, based upon an interesting, if only for historical reasons, Georgia Supreme Court decision decided during the current survey period, it appears the author's prediction will not soon be realized.

In Roebuck v. State,²⁵ the trial court convicted defendant, in 1999, of a 1985 murder. Because defendant's indictment, fourteen years after the murder, was based on the testimony of an accomplice, it was incumbent upon the prosecution to produce some corroborating evidence of the accomplice's testimony. To meet this burden, the State offered the testimony of a fingerprint expert who testified that defendant's fingerprints matched those on a fingerprint card labeled "Gregory Roebuck." On appeal defendant contended that the fingerprint card, which was admitted without objection, was hearsay and thus, could not be used to support his conviction. Because the fingerprint expert's testimony was based upon the fingerprint card, defendant argued there was no admissible evidence corroborating the accomplice's testimony.²⁶ A majority of the supreme court resolved this issue by holding that an expert can base his opinion on hearsay.²⁷ In view of this resolution of the issue, the supreme court concluded that "there is no reason to reconsider Georgia's long-standing rule that inadmissible hearsay lacks probative value even though the opposing party does not object to its introduction."²⁸

Justice Fletcher disagreed and, in a concurring opinion, argued that the court should overrule prior cases holding that hearsay has no probative value.²⁹ Justice Fletcher noted that the corroborating evidence relied on by the State included the fingerprint card, which was clearly hearsay because "it rested 'mainly on the veracity and competency of other persons'; namely, the officer who took Roebuck's print and labeled the print card."³⁰ Justice Fletcher believed the majority ruling "effectively allowed an expert to serve as a conduit for introducing inadmissible evidence."³¹

This brought Justice Fletcher to the rule that hearsay has no probative value.³² If the fingerprint card had no probative value, even though defendant did not object to its admission, then there was no corroborating evidence to support defendant's conviction.³³ To Justice Fletcher the rule was simply an archaic legal fiction.³⁴ According to Justice Fletcher, Georgia was the only jurisdiction in the country still following the rule.³⁵ Justice Fletcher argued that continued adherence to this archaic rule would invariably lead to unfortunate consequences, such as the majority's scramble to find some basis for upholding defendant's conviction.³⁶ Further, Justice Fletcher concluded that "[b]ecause the majority cannot rely on the print card to corroborate, it improperly uses expert testimony for this purpose. I would overrule our longstanding rule and rely on the print card to corroborate."³⁷

It is difficult to fault Justice Fletcher's analysis. Why should hearsay evidence admitted without objection be treated differently than any other evidence admitted without objection? The majority's task would have been a simple one if it had simply ruled that because defendant failed to object to the print card, he could not on appeal contend that the print card could not be used to corroborate his accomplice's testimony. Yet the majority chose to rely on the principle that an expert can base his opinion on hearsay.³⁸ It is doubtful that this principle was intended to apply to a necessary factual predicate for the application of an expert's opinion to a particular case as opposed to information that experts typically rely on, such as market data, scientific principles, and similar general bodies of fact and information.

This is what led Justice Fletcher to question why the majority would unnecessarily expand one hearsay exception onto treacherous ground to preserve an "archaic" principle. The majority, however, did just that, and as a result, it seems that archaic principle will likely be with us for some time.

III. Relevancy

A. Relevancy of Prior Sexual Behavior

Georgia's Rape Shield Statute³⁹ prohibits the admission of evidence relating to the prior sexual behavior of a rape victim, unless the behavior directly involves the accused...