Evidence - Marc T. Treadwell

• Publication year: 1996

Evidenceby Marc T. Treadwell^*

I. Introduction

The survey period saw a number of cases raising significant evidentiary issues. For example, lawyers engaged in civil litigation should be aware of decisions addressing the admissibility of collateral source payments and offers to pay medical bills in tort actions. Also, the court of appeals struggled with the question of whether the forfeiture of a bond posted in response to a traffic citation is admissible in a subsequent civil action as an admission of liability. With regard to criminal law, decisions rendered during the survey period suggest that at least some members of the supreme court will be taking a more restrictive view of the range of admissible similar transaction evidence. Also, both the supreme court and the court of appeals continue to skeptically view expert testimony in criminal cases. All litigators may find decisions on Georgia's relatively new necessity exception to the hearsay rule interesting.

II. Relevancy

A. Generally

Basic relevancy analysis is rarely seen in appellate decisions, perhaps because such a simple issue rarely merits serious attention on appeal. The court of appeals decision in DeCastro v. State,¹ however, is an exception and its discussion of the concept of relevant evidence is instructive. The opinion does not, however, include a definition of relevancy; thus, it is appropriate to note that for Georgia courts the generally accepted test for relevancy is whether the evidence renders the desired inference more probable than it would be without the evidence.²

In DeCastro, the trial court admitted a photograph of defendant taken shortly after his arrest, a photograph which even the prosecution agreed made defendant appear '"ominous."'³ The trial court expressed strong reservations about the photograph, but admitted it nonetheless. The court of appeals acknowledged that in Georgia, just as under the Federal Rules of Evidence, relevant evidence may be excluded if its probative value is substantially outweighed by its prejudicial impact.⁴ The court, however, based its conclusion on the more fundamental question of whether the photograph was relevant to begin with.⁵ The prosecution argued that the photograph, which was taken at the time of defendant's arrest, was admissible because "all circumstances surrounding an arrest are relevant for whatever value the jury may wish to place on them."⁶ The court acknowledged that the facts and circumstances surrounding an arrest may be admissible as part of the res gestae.⁷ The photograph, however, was taken a week after defendant's arrest and, thus, was not admissible as a part of the res gestae.⁸ Moreover, the photograph did not depict some circumstance relevant to the offense such as a mug shot of an intoxicated driver suggesting that the driver is still under the influence of alcohol. Finally, identity was not in issue and, therefore, the photograph was not admissible for that reason.⁹ The court summarily rejected the State's argument that the photograph was admissible because "the jury was entitled to know how DeCastro appeared to the victim at the time of the offense," because the photograph was taken some time after the offense (although the opinion does not say whether defendant's appearance changed in that one week period), and because there was no evidence that defendant's appearance frightened or intimidated the victim, who had lived with defendant for seven years.¹⁰

The court seemed to take offense at the prosecution's central argument for the admission of the photograph: that defendant, who was well-groomed at trial, had '"cleaned up his act big time'" and that the jury should be allowed to consider this fact.¹¹ The court noted that this argument came "perilously close" to injecting defendant's character into evidence.¹² While the court acknowledged that a defendant's appearance may be relevant based upon the facts of a particular case, the fact that defendant appeared at trial in a suit, clean-shaven, and with a short hair cut was not relevant to any issue in defendant's case.¹³ Accordingly, the court reversed defendant's conviction.¹⁴

In Shelter Mutual Insurance Co. v. Bryant,¹⁵ the court of appeals addressed the issue of whether, in a civil case arising from an automobile collision, the uninsured defendant's intoxication was relevant when plaintiffs' uninsured motorist carrier admitted liability and when plaintiffs did not seek punitive damages. The court concluded that this evidence was admissible because it was "inextricably linked" to the collision and to defendant's negligence.¹⁶ The uninsured motorist carrier argued, however, that because it had admitted liability, negligence was not in issue and evidence of negligence was, therefore, not admissible. The court of appeals disagreed.¹⁷ Although this removed the issue of negligence, the jury still had to decide issues of proximate cause and damages. The court concluded that defendant's intoxication was relevant to these issues as well, apparently because it related to the fact that defendant was driving far in excess of the speed limit, lost control of his vehicle, crossed the center line, and ricocheted off a tree.¹⁸ The court also found support for its conclusion in Official Code of Georgia Annotated ("O.C.G.A.") section 40-6-392(a) which provides that in any civil action arising from a driver's intoxication, "evidence of the amount of alcohol or drug in a person's blood . . . shall be admissible."¹⁹

Chief Judge Beasley, in a concurring opinion, appeared troubled by the court's analysis. She began by noting that "there was not a clear distinction made between an admission of negligence and an admission of liability."²⁰ If a defendant admits negligence, he has acknowledged only the breach of a legal duty. If he admits liability, he acknowledges that he has breached a duty and that this breach proximately caused plaintiff's damages. Chief Judge Beasley's examination of the record, however, seemed to establish that defendant admitted liability and, therefore, the only issue submitted to the jury was one of damages. She concluded that evidence of defendant's intoxication was not a "necessary ingredient" of the jury's resolution of the issue of damages and that the better course of action might have been to reject the evidence.²¹ However, Chief Judge Beasley concluded that its admission was not an abuse of discretion.²² Further, Chief Judge Beasley did not seem to agree with the majority's reliance on O.C.G.A. section 40-6-392(a) and noted that although the statute authorizes the admission of alcohol tests as evidence in civil actions, the evidence must first be relevant to a material issue.²³

B. Relevancy of Extrinsic Act Evidence

1. Similar Transaction Evidence. The determination of the relevancy of extrinsic act evidence is perhaps the most problematic of all evidentiary issues. In the nine years this author has surveyed Georgia appellate decisions, this issue has been the single most frequently addressed evidentiary issue. Accordingly, some background discussion is appropriate.

Evidence is extrinsic when it concerns conduct on occasions other than the one at issue. As a general rule, extrinsic act evidence is inadmissible. Like the rule against hearsay, however, the rule against extrinsic act evidence is known more for its exceptions than its flat prohibition. Extrinsic act evidence may be admissible for a substantive purpose, as when a prosecutor tenders evidence of a similar transaction, usually a prior criminal offense, to prove a defendant's motive to commit the charged offense. Extrinsic act evidence also may be admissible to impeach or bolster a witness, as when opposing counsel uses evidence of a felony conviction to impeach a witness's character.

Finally, evidence which may appear to be extrinsic may not, in the sometimes arcane world of evidence, actually be extrinsic. For example, the res gestae doctrine, although typically thought of as an exception to the rule against hearsay, is often used to admit evidence that, although not directly related to the transaction at issue, is close enough.

For years, Georgia courts have routinely and liberally admitted evidence of similar, but totally unrelated, transactions in criminal cases. However, as discussed in previous surveys, the Georgia Supreme Court in Stephens v. State²⁴ and Williams v. State²⁵ tightened the rules governing the admissibility of extrinsic act evidence in criminal cases.²⁶ In Stephens, the supreme court held that the prosecution cannot rely solely on a certified copy of a prior conviction when seeking to use that conviction as similar transaction evidence.²⁷ Rather, the prosecution must offer evidence proving the requisite degree of similarity or connection between the extrinsic act and the charged offense.²⁸ In Williams, the supreme court, in a dramatic departure from prior practice, held that the prosecution must prove, prior to trial, three elements before similar transaction evidence can be admitted.²⁹ First, the prosecution must prove the relevance of the independent transaction to a legitimate issue.³⁰ Second, the prosecution must prove that the defendant committed the independent offense or act.³¹ Third, the prosecution must prove a sufficient connection or similarity between the prior act or offense and the charged offense.³² The trial court must then make a specific determination that the prosecution has carried its burden of proving each of the three elements.³³

Notwithstanding Williams and Stephens, courts routinely and liberally continue to admit extrinsic act evidence in criminal cases. However, a change may be in the offing. In Farley v. State,³⁴ the trial court admitted evidence of defendant's prior conviction of aggravated battery in his trial for simple battery and felony murder. The majority affirmed defendant's conviction, finding that defendant's prior conviction was sufficiently similar to the charged offense to make it...