Evidence - Marc T. Treadwell

• Jurisdiction: Georgia,United States
• Publication year: 1997
• Citation: Vol. 49 No. 1

Evidenceby Marc T. Treadwell^*

I. Introduction

The survey period saw a number of cases raising significant evidentiary issues but no startling developments. Two areas in particular should be noted. As suggested in last year's survey,¹ lawyers engaged in civil litigation should continue to be aware of decisions addressing the admissibility of collateral source payments and the remedies available when a party improperly injects the issue of collateral source payments. All trial lawyers, especially those engaged in criminal practice, should take note of the continued evolution of the "necessity" exception to the hearsay rule.

Perhaps the most striking development came not from the appellate courts but rather from the General Assembly. Official Code of Georgia Annotated ("O.C.G.A.") section 24-3-18,² which became effective July 19, 1997, is Georgia's newest exception to the hearsay rule. It provides for the admission of medical records even though they contain opinions, diagnoses, and conclusions.

II. Objections

In Sharpe v. Department of Transportation,³ the supreme court emphatically reaffirmed the requirement that a contemporaneous objection is necessary to preserve an alleged error for appellate review.⁴ In Sharpe the Department of Transportation ("DOT") did not object to defendant's expert testimony at the time it was given. Rather, the DOT moved to strike the testimony at the close of evidence.⁵ The court of appeals held that the testimony was "illegal" evidence and could be attacked by a motion to strike.⁶ Thus, the court of appeals held the DOT did not waive its right to challenge the testimony by its failure to make a contemporaneous objection.⁷ The supreme court granted certiorari and reversed.⁸

The court first recognized that the "contemporaneous objection rule has long been a mainstay of Georgia trial practice."⁹ However, if the evidence in question is "illegal" evidence, then a party need not make a contemporaneous objection but rather may move to strike the evidence.¹⁰ This exception to the contemporaneous objection rule applies primarily to hearsay evidence and is based on Georgia's unique principle that hearsay evidence has no probative value even if it comes into evidence without objection.¹¹ The scope of "illegal" evidence has also been recognized to include evidence obtained in violation of a criminal defendant's constitutional rights.¹² However, the evidence at issue—expert testimony concerning the value of property—was not hearsay evidence and did not impinge constitutional rights.¹³ Nevertheless, the court of appeals held that the evidence was illegal because it concerned the wrong measure of damages.¹⁴ The supreme court rejected this expansion of the illegal evidence exception to the contemporaneous objection rule.¹⁵

That, however, was not the reason the court granted certiorari.¹⁶ Rather, the court took the opportunity to re-examine the illegal evidence exception and concluded that the time had come to abolish motions to strike as a means of challenging evidence.¹⁷ The court stated:

Accordingly, we overrule Patton v. Bank of Lafayette¹ * [which sanctioned the use of a motion to strike to attack illegal evidence] and disallow the use of a motion to strike made at any point before the jury retires as a procedural tool to object to evidence, except in those limited instances where the evidence was inadmissible because it was obtained in violation of a criminal defendant's constitutional rights . . . .¹⁹

Implicit in the court's holding was a renunciation of the principle that hearsay, even though not objected to, has no probative value and therefore cannot support a verdict.

In Corbett v. State,²⁰ the supreme court reaffirmed that when a document contains both admissible and inadmissible information, a party must object to the specific portions of the document that are inadmissible.²¹ In Corbett the trial court admitted hospital records pursuant to the business records exception to the rule against hearsay.²² However, under Georgia law, the business records exception does not allow the admission of opinions.²³ Although defendant objected to the records on this ground, he did not, despite a request from the trial judge, identify those portions of the records he claimed were objectionable.²⁴ The supreme court held that defendant thus waived a hearsay objection to the inadmissible portions of the hospital records.²⁵

III. Presumptions

The destruction of evidence by a party may give rise to a presumption that the evidence would have been harmful to that party. This principle is often referred to as the spoliation presumption.²⁶ The court of appeals decision in Lane v. Montgomery Elevator Co.²⁷ demonstrates the utility of this presumption. In Lane plaintiff was injured when the elevator she was using malfunctioned. Montgomery, the installer and maintainer of the elevator, contended that plaintiff had failed to produce any evidence that it was negligent and therefore it was entitled to summary judgment. The trial court agreed.²⁸ On appeal, a six judge majority of the court of appeals reversed.²⁹

The majority noted that state law prohibited Montgomery from repairing, altering, or placing the elevator back in service prior to an appropriate government inspection.³⁰ Because there was evidence that Montgomery repaired the elevator and placed it back in service prior to such an inspection, the court held that plaintiff could rely on the spoliation presumption to resist Montgomery's motion for summary judgment.³¹ "[S]uch conduct would constitute a form of spoliation of evidence, because by working on the elevator, the evidence would have been tampered with, altered, or destroyed."³² Thus, the plaintiff was entitled to the benefit of the presumption that the "destroyed" evidence was harmful to Montgomery, and this presumption, although rebuttable, was sufficient to defeat Montgomery's motion for summary judgment.³³

The spoliation presumption has some rather logical limitations. Thus, in Georgia Board of Dentistry v. Pence,³⁴ the court of appeals rejected a dentist's contention that disciplinary proceedings against her should have been dismissed because the patient whose treatment was at issue sought treatment from another dentist who repaired the first dentist's work. The first dentist, Pence, argued that because her expert could not inspect her allegedly shoddy dental work, the evidence could not be used against her.³⁵ The court rejected this contention for two reasons. First, the court noted that in the typical case of spoliation, the destruction of the evidence occurred during the litigation or at a time when litigation had been threatened or contemplated.³⁶ Second, the spoliation presumption is applicable to the destruction of inanimate objects.³⁷ Here, the alleged "spoliation" involved the treatment of a human being.³⁸ "Carrying Pence's argument to its logical extreme, a tortfeasor could accuse a victim's physician or surgeon of 'spoliation' for treating the injuries inflicted by the tortfeasor."³⁹ The court of appeals was not prepared to take the spoliation presumption this far.

IV. Relevancy

A. Generally

In Larocque v. State,⁴⁰ defendant contended that the trial court improperly admitted evidence of his mere presence at various locations in his trial for rape, false imprisonment, sexual battery, and battery. At trial defendant denied that he was present at locations that were near the victim's home and place of employment. The State then elicited testimony from other witnesses that defendant was present at those locations.⁴¹ The court of appeals acknowledged that evidence of threats or threatening conduct directed at witnesses may be relevant to prove that a defendant intended to obstruct justice or avoid punishment.⁴² If sufficiently probative, that evidence is admissible a_a an admission by conduct.⁴³ However, evidence of defendant's mere presence at locations near the victim did not constitute evidence of threats or threatening conduct.⁴⁴ Thus, the evidence was not relevant, and its potential prejudicial effect required reversal of dsfendant's conviction.⁴⁵

Chief Judge Beasley, Judge Andrews, and Judge Smith dissented.⁴⁶ They contended that defendant had not properly objected to the evidence and that, even if he had, the evidence was relevant because it tended to show attempts to intimidate the victim.⁴⁷ Whether defendant's conduct actually constituted attempts to intimidate the victim was a matter for the jury, but the evidence was sufficiently probative to be relevant.⁴⁸

B. Relevancy of Extrinsic Act Evidence

No evidentiary issue is more problematic or controversial than the determination of the relevancy of extrinsic act evidence. 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, such 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 may also be admissible to impeach or bolster a witness. An example is when evidence of a felony conviction is used to impeach a witness's character.

For years Georgia courts 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. State⁴⁹ and Williams v. State⁵⁰ substantially tightened the rules governing the admissibility of extrinsic act evidence in criminal cases.⁵¹ 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.⁵² Rather, the prosecution must offer...