Evidence - Marc T. Treadwell

• Publication year: 2009

Evidenceby Marc T. Treadwell^*

I. Introduction

Every Georgia attorney and trial court judge ought to set aside the time to read every Georgia appellate court opinion on the subject of evidence (or, for that matter, any other selected subject) rendered during a given period of a year. The feel that one acquires for the attitude of the appellate courts of Georgia is interesting. Most though, will not have the time for such projects, so that to read someone else's selections and comments may be of some benefit. It will not, however, give the "feel" that one acquires through an individual reading of the cases.¹

This was former Georgia Supreme Court justice, former superior court judge, and preeminent trial lawyer Hardy Gregory Jr.'s introduction to his 1978 survey of evidence decisions for the Mercer Law Review. As always, Justice Gregory got it right; there is no substitute for reading cases. Today, the sheer volume of cases and our technological ability to ferret out key words makes it even less likely we read an entire case, much less all cases in a given area. This Survey, although perhaps a helpful tool to get you part of the way to where you want to be, is no substitute for a lawyer's own careful reading of the law. Perhaps the best examples of this difficulty are cases interpreting and applying Georgia's Daubert² statute.³ While the Author has spent a lot of time, perhaps too much time, trying to summarize these decisions, to truly understand or get a feel for what the courts are doing in this critical area, one must read the cases. This Article surveys developments in Georgia evidence law during the period of June 1, 2008 to May 31, 2009.⁴

II. Presumptions

The destruction ofevidence by a party can give rise to a presumption that the evidence would have been harmful to that party,⁵ a presumption generally referred to as the "spoliation" presumption or the "adverse inference" presumption.⁶ As discussed in last year's survey, trial courts can also impose additional sanctions for spoliation of evidence.⁷ During the current survey period, the Georgia Court ofAppeals returned to the issue of whether a finding of bad faith or misconduct is a necessary prerequisite to the imposition of spoliation sanctions. This question has been frequently raised in Georgia's appellate courts and the United States Court of Appeals for the Eleventh Circuit, but it is now settled that bad faith is unnecessary to impose sanctions, although the degree of a party's culpability is a factor the trial court should take into account.⁸

In AMLI Residential Properties, Inc. v. Georgia Power Co.,"⁹ the plaintiff contended that its property had been destroyed by a fire that resulted from Georgia Power Company's negligence in maintaining and operating electrical equipment that provided power to the plaintiff's building. During a series of inspections conducted to determine the cause of the fire, the plaintiff focused on two ground rods. The plaintiff concluded that it would be necessary to excavate one of the ground rods for testing and informed Georgia Power of its intention to do so. However, before the scheduled excavation, a contractor retained by the plaintiff removed a portion of one ground rod. At the scheduled excavation, an excavator was unable to remove the remainder of the ground rod. Still, the plaintiff did not inform Georgia Power that a portion had already been removed. The plaintiff then conducted metallurgical testing on the removed portion, and its experts concluded that although the ground rod was exposed to heat, it was not exposed to fire, a conclusion that implicated Georgia Power. Because the plaintiff did not inform Georgia Power of the removal or the destructive testing of the ground rod, Georgia Power moved in limine to preclude the plaintiff from introducing any evidence relating to the ground rod. Georgia Power then moved for summary judgment, contending that the plaintiff could not establish causation without any evidence relating to the ground rod. The trial court granted both motions.¹⁰ on appeal, the plaintiff argued that spoliation sanctions were not appropriate because neither its experts nor its attorneys acted in bad faith.¹¹ The court of appeals disagreed, noting that exclusionary sanctions for spoliation of evidence may be appropriate even when a party has not acted in bad faith.¹² However, the degree of culpable conduct is a factor in the determination of whether sanctions are appropriate.¹³ The court contrasted, on the one hand,

"the accidental, random, or unintended dissipation of evidence by persons having no interest in its preservation," and those cases where "a party knowledgeable of litigation strategy, tactics, and policies who invokes the aid and jurisdiction of the Court and its processes . . . acted unfairly to preclude the opportunity of an adversary to be apprised of the existence of a defense to a plaintiff's claims."¹⁴

In AMLI the court of appeals concluded that the plaintiff's removal of the ground rod and its subsequent destructive testing, without notice to Georgia Power, was wrongful even though not found to be in bad faith.¹⁵ Considering the relative culpability of the parties, spoliation sanctions were appropriate.¹⁶

III. Relevancy

A. Extrinsic Act Evidence

Since the Author began surveying evidence decisions for the Annual Survey of Georgia Law in 1988,¹⁷ the most frequently encountered evidence issue has almost certainly been whether "extrinsic act evidence" is relevant. Extrinsic act evidence is evidence of conduct on occasions other than the occasion at issue, and it is offered as substantive evidence, as opposed to impeachment evidence.¹⁸ Generally, extrinsic act evidence is irrelevant and, thus, inadmissible.¹⁹ This makes sense; generally, defendants should be convicted based on evidence of what they did on the occasion at issue, not upon what they did five, ten, or fifteen years earlier. Nevertheless, like the rule against hearsay, the rule against extrinsic act evidence is known more for its exceptions than its flat prohibition. Most commonly, evidence of completely separate but nonetheless similar transactions "'may be introduced to prove identity, motive, plan, scheme, bent of mind and course of conduct.'"²⁰ This can make sense as well; if a defendant committed an act that is so similar to the charged offense that evidence of the prior events tends to prove he committed the charged offense, then that evidence should be admitted. However, criminal defense lawyers from scarcely more than a generation or two ago would hardly recognize the state of today's law regarding extrinsic act evidence. Georgia's appellate courts, however, "'do not concede, as suggested by some, that the exceptions have swallowed the rule of inadmissibility of separate crimes.'"²¹

During the current survey year, the criminal defense bar made its strongest, but nevertheless unsuccessful, effort yet to limit the use of extrinsic act evidence. First, in Wade v. State,²² the defendant in a DUI case tried to present the court of appeals with a tailor-made opportunity to change Georgia's extrinsic act evidence rule. The defendant agreed to a bench trial on stipulated facts precisely so she could appeal the admission of evidence of a prior conviction for driving under the influence of alcohol "to show [the defendant's] bent of mind and course of conduct."²³ The defendant's appeal to the court of appeals found a sympathetic ear. The court acknowledged that Georgia law had evolved to the point that evidence of similar transactions was admissible to show, among other things, bent of mind.²⁴ The defendant argued such evidence was particularly prejudicial in a DUI case "because the State does not need evidence of a prior act to show motive, intent, identity, plan, scheme, or other generally accepted rationale for admitting such evidence."²⁵

The court of appeals acknowledged that Georgia is the only state to allow the admission of similar transaction evidence to prove bent of mind and quoted Justice Sears's concern that "a person's 'bent of mind is dangerously close to being his character, and a person's course of conduct could easily show nothing more than a mere propensity to act in a certain manner.'"²⁶ Justice Sears's use of the word "propensity" is significant. Federal courts, in determining whether extrinsic act evidence is admissible under Federal Rule of Evidence 404(b),²⁷ often look to see if the extrinsic act is merely propensity evidence, the admission of which is not allowed.²⁸ Georgia takes a different view. In Carr v. State,²⁹ Judge Eldridge noted that Georgia courts have specifically held that "'propensity' can be a sufficient basis for the admission of a similar transaction."³⁰

In Wade the court of appeals seemed to agree that the pendulum had swung too far, and the court openly questioned whether the broad admission of evidence of conduct on other occasions should continue.³¹ However, as the court explained, its hands were tied. "Nevertheless, we are not authorized to depart from the precedent of the Supreme Court of Georgia authorizing the bent of mind rationale for admitting similar transaction evidence," and thus, the court affirmed the defendant's conviction.³² Clearly, the court of appeals was asking the Georgia Supreme Court to grant certiorari and fix the problem, but the supreme court, without comment, denied certiorari on April 28, 2009.³³

However, a sharply divided supreme court weighed in on the issue in Payne v. State.³⁴ In Payne the defendant, who was convicted of molesting his eleven-year-old stepdaughter on multiple occasions, contended that the trial court erred when, to prove bent of mind and course of conduct, it admitted evidence that in 1994 he sexually assaulted a woman with whom he had previously lived.³⁵ The court of appeals affirmed the defendant's conviction, and the supreme court granted certiorari.³⁶ Noting the similarity between the two offenses—the victims were...