Evidence - Marc T. Treadwell

• Jurisdiction: Georgia,United States
• Publication year: 2001
• Citation: Vol. 53 No. 1

Evidenceby Marc T. Treadwell^*

I. Introduction

This is the fourteenth year the author has surveyed Georgia Evidence decisions. Although this was a fairly uneventful year, the appellate courts continued to radically expand the scope of hearsay exceptions, at least in criminal cases. Whether one agrees or disagrees with these changes, one thing is clear—Georgia hearsay law today is markedly different than it was fourteen years ago.

II. Objections

Three years ago, the author discussed the decision of the court of appeals in Putnam v. State¹ that reversed defendant's conviction on the grounds that a witness improperly testified that a victim had been molested, even though defendant did not contemporaneously object to that testimony.² Although the majority opinion in Putnam did not expressly employ a "plain error" analysis, Judge Beasley, in a concurring opinion, criticized the majority for "shortcutting the normal process by using the 'plain error' rule which the United States Supreme Court created . . . ."³ According to Judge Beasley, no Georgia case had applied the plain error rule under the circumstances in Putnam, and she was unwilling to establish that precedent in Georgia.⁴ She made clear that by concurring specially in the judgment, the majority's opinion had no precedential effect.⁵

During the current survey period, the court of appeals decision in Gosnell v. State⁶ addressed the same issue and made clear it was applying a plain error analysis.⁷ Under the plain error rule, the failure to object to the admission or exclusion of evidence results in a waiver of the objection except in cases of plain error. '"Plain error is that which is so clearly erroneous as to result in a likelihood of a grave miscarriage of justice or which seriously affects the fairness, integrity or public reputation of a judicial proceeding.'"⁸ In Gosnell the full three judge panel joined in the opinion and thus removed any doubt with regard to the precedential impact of the plain error standard.⁹

In Paul v. State,¹⁰ the supreme court held that a defendant could rely on the plain error standard to appeal a trial judge's improper comments in violation of section 17-8-57 of the Official Code of Georgia Annotated ("O.C.G.A.").¹¹ Although not strictly involving the admissibility of evidence, Paul certainly suggests that the plain error standard is now firmly ensconced in Georgia.

Motions in limine, although valuable tools to resolve evidentiary issues prior to trial or out of the presence of the jury, are fraught with pitfalls of their own. For example, as reported in last year's survey,¹² a motion in limine does not necessarily relieve a party from making appropriate objections at trial. During the current survey period, the court of appeals held in Pena v. State¹³ that a party filing a motion in limine is obligated to evoke a ruling on the motion by the trial court, and the failure to do so results in a waiver of any objection.¹⁴

III. Privileges

The facts of Tenet Healthcare Corp. v. Louisiana Forum Corp.¹⁵ might be fodder for a John Grisham novel. An attorney approached Tenet Healthcare with previously unknown information suggesting that

Louisiana Forum was indebted to Tenet Healthcare's predecessor. The attorney claimed his client, who wanted to remain anonymous, would provide Tenet Healthcare with full details of the debt if Tenet Healthcare would share the proceeds of any recovery with the client and hire him, the attorney, to pursue the claim. Tenet Healthcare agreed and the attorney filed suit against Louisiana Forum. During discovery, Louisiana Forum moved to compel Tenet Healthcare to disclose the client's identity. At a hearing on the motion to compel, Tenet Healthcare officials claimed they did not know the identity of the client. The attorney informed the court that he knew the client's identity, but he refused to disclose that information on the grounds of attorney-client privilege and his duty to keep client information confidential. The trial court, however, was more concerned with Louisiana Forum's predicament of having to defend the lawsuit without having an opportunity to challenge the credibility of the source of the information giving rise to Tenet Healthcare's claim, particularly in view of the fact that the source had a financial interest in the claim. Accordingly, the trial court ordered the attorney to disclose the identity of the client within ten days. The court of appeals denied Tenet Healthcare's application for interlocutory review,¹⁶ but the supreme court granted certiorari.¹⁷

The supreme court first noted that the identity of a client is generally not protected from disclosure by the attorney-client privilege.¹⁸ Although Georgia courts have not addressed whether there are any exceptions to this rule, the court acknowledged that other jurisdictions protect a client's identity if the disclosure of the client's name could expose the client to criminal prosecution, the so-called last link exception, or if disclosing the client's identity would reveal the substance of confidential attorney-client communications.¹⁹ The court held that neither exception, even if recognized in Georgia, was applicable.²⁰ There was no evidence that the client would be subjected to criminal prosecution, and the substance of the client's communications, involving the existence of the indebtedness, had already been disclosed.²¹ The supreme court thereby affirmed the trial court's order requiring the attorney to identify his client.²²

IV. Relevancy

A. Relevancy of Extrinsic Act Evidence

In the years the author has surveyed Georgia appellate decisions, the determination of the relevancy of extrinsic act evidence has been the most frequently addressed evidentiary issue. In recent years, however, and particularly during the current survey period, the number of appeals involving significant extrinsic act decisions has decreased. (During the current survey period, the necessity exception to the hearsay rule rose to the top of the charts as the most frequently addressed evidentiary issue on appeal.) Perhaps this means that the rules governing the admission of extrinsic act evidence have become sufficiently settled so that repeated adjustment and fine tuning of those principles by appellate courts is unnecessary. If so, this is not good news for criminal defendants, because it is clear that the scope of admissible extrinsic act evidence, particularly similar transaction evidence in criminal cases, has expanded dramatically. As the court of appeals noted during the survey period:

The law on similar transactions has come a long way from the seminal decision in Bacon v. State,²³ which prohibited introducing a prior crime "even though it be a crime of the same sort. . ."as circumstantial evidence of felonious intent. Now, however, it is permissible for the State to introduce a similar crime precisely to show that the accused "has a propensity for initiating and continuing unprovoked [violent] encounters . . . ." This falls into the category of showing malice, intent, motive, course of conduct, and bent of mind.²⁴

While the scope of admissible similar transaction evidence may have expanded, courts have placed procedural restrictions on the use of such evidence in recent years, as discussed in more detail in last year's survey.²⁵ However, these restrictions only apply to similar transactions and not other forms of extrinsic act evidence. For example, during the current survey period the court of appeals reaffirmed that the procedural prerequisites for the admission of similar transaction evidence do not apply to evidence of prior difficulties between a defendant and his victim.²⁶

Criminal defense lawyers, who undoubtedly think that the liberal admission of similar transaction evidence overwhelmingly benefits the prosecution, may take some comfort in Stobbart v. State.²⁷ In Stobbart defendant appealed his conviction, contending the trial court improperly barred the admission of evidence of his victim's prior violent acts and reputation for violence, which defendant argued justified his fatal assault. The trial court concluded that defendant had not made a prima facie case of justification to warrant the admission of the evidence.²⁸ The supreme court acknowledged that a defendant seeking to introduce evidence of a victim's violent acts must show that the victim was the aggressor, that the victim assaulted the defendant, and that the defendant was honestly trying to defend himself.²⁹ In Stobbart the evidence showed that the victim, who owned the towing company where defendant worked, argued with defendant at a tavern. After leaving the tavern, defendant saw the victim take a pistol from the victim's automobile and place it in his pants. Later that evening, defendant returned to his apartment and found the victim there. They argued again and, at one point, the victim stopped defendant from leaving the apartment. During the argument, defendant testified he could see the victim's gun.³⁰ The supreme court held that these facts were sufficient to establish a prima facie case of justification and, the trial court erred when it refused to allow the admission of evidence of the victim's prior violent acts and reputation for violence.³¹

Defendants often claim that similar transactions committed years before the charged offense are too remote in time to be relevant. Typically, these arguments fall on deaf ears. In Slakman v. State,³² however, the supreme court, after reversing defendant's conviction on other grounds, sided with defendant and held that evidence of defendant's physical and verbal abuse of his first wife twenty years before the alleged murder of his third wife was too remote in time to be admissible at defendant's retrial.³³ In so holding, the court stated the passage of time is "'one of the more important factors to weigh in considering the admissibility' of similar transactions evidence."³⁴

In Salcedo v. State,³⁵ the supreme court...