Evidence - Marc T. Treadwell

• Publication year: 2007

Evidenceby Marc T. Treadwell^*

I. Introduction

The most significant news during the current survey period continued to be the judiciary's efforts to come to terms with the "tort reform" legislation enacted by the General Assembly in 2005, particularly Official Code of Georgia Annotated ("O.C.G.A.") section 24-9-67.1,¹ which purports to adopt, more or less, the United States Supreme Court's decision in Daubert v. Merrell Dow Pharmaceuticals, Inc.² As discussed below, it is beginning to appear that Georgia courts will follow a somewhat different course than that followed by federal courts in their interpretation of Daubert and Dauberfs codification in Federal Rule of Evidence 702.³

As discussed in many prior surveys,⁴ Georgia continues to creep, both through legislative enactments and State Bar of Georgia initiatives, toward the adoption of the Federal Rules of Evidence. As this Article was being written, the State Bar of Georgia was once again pushing the General Assembly to adopt a new evidence code that would be based on the Federal Rules of Evidence.⁵ The current version of the Georgia Rules of Evidence can be found at the State Bar's website.⁶ Off and on for almost twenty years, the State Bar has unsuccessfully advocated the adoption of a new evidence code. It seems that while most trial lawyers may generally favor the adoption of a new evidence code, all lawyers can find a particular provision in the proposed code that is unpalatable. For example, prosecutors—who purportedly stopped the legislature from extending O.C.G.A. section 24-9-67.1 to criminal cases—likely will oppose any further attempts to subject their expert witnesses to a Daubert or Daubert-like standard, which is what the proposed code will do.

Nevertheless, Georgia evidence law more closely resembles the Federal Rules of Evidence than it did when the State Bar first proposed the adoption of the Federal Rules of Evidence. For example, in 2005 the General Assembly enacted new o.C.G.A. section 24-9-81,⁷ which is nearly identical to Federal Rules of Evidence 607,⁸ new O.C.G.A. section 24-9-84,⁹ which is based on Federal Rules of Evidence 608,¹⁰ and o.C.G.A. section 24-9-84.1,¹¹ which mostly adopts Federal Rule of Evidence 609.¹² Also, as noted Daubert has come to Georgia, if not quite the same Daubert seen in federal court. Incidentally, this survey Article, in its discussion of Georgia evidence law and decisions, has always tracked the organizational format of the Federal Rules of Evidence.

II. Relevancy

A. Extrinsic Act Evidence

Since this Author began surveying evidence decisions for Mercer Law Review's Annual Survey of Georgia Law in 1988, the most frequently encountered relevancy issue has been whether extrinsic act evidence is admissible. "Extrinsic act evidence," a term used more frequently by federal courts, generally refers to evidence of conduct on occasions other than the occasion at issue that is offered as substantive, as opposed to impeachment, evidence.¹³ Georgia courts mostly use the phrase "similar transaction evidence" when referring to extrinsic act evi-dence.¹⁴ However, as pointed out by the Georgia Supreme Court in Young v. State,¹⁵ that phrase does not always accurately describe the type of extrinsic act evidence that can be admitted.¹⁶ In Young the court acknowledged that although most cases, and even the Uniform Superior Court Rules,¹⁷ refer to "similar" transaction evidence, more than just similar extrinsic evidence can be admissible.¹⁸ As stated in the seminal case of Williams v. State,¹⁹ the test is whether "'there is a sufficient connection or similarity between the independent offense or act and the crime charged so that proof of the former tends to prove the latter. "²⁰ Thus, it is not just similar transactions that may be admissible; acts or transactions that are sufficiently connected to the charged offense may also be admissible.²¹

Generally, extrinsic act evidence is irrelevant and thus inadmissi-ble.²² Nevertheless, like the rule against hearsay, the rule against extrinsic act evidence is known more for its exceptions than its prohibition. The supreme court's decision in Williams likely sets forth the most cited test for the admission of extrinsic act evidence in Georgia.²³ The court in Williams held that the prosecution must prove three elements before similar transaction can be admitted.²⁴ First, the prosecution must prove the relevance of the independent transaction to a legitimate issue.²⁵ Second, the prosecution must prove that the defendant committed the independent offense or act.²⁶ Third, the prosecution must prove a sufficient connection or similarity between the prior act or offense and the charged offense.²⁷ The trial court must then make a specific determination that the prosecution has carried its burden of proving each of these three elements.²⁸

In Young the prosecution contended that the defendant killed the victim because the victim knew about the defendant's involvement in a previous murder. There was evidence that the pistol used in the first murder was also used in the second murder. Contending that evidence of the first murder was relevant similar transaction evidence, the prosecution gave notice, pursuant to Georgia Uniform Superior Court Rule 31.3,²⁹ of its intent to introduce evidence of the previous murder. The trial court applied the Williams test and concluded that the evidence did not meet the test's standards, apparently because the evidence was not sufficiently similar to the charged offense to be admissible as similar transaction evidence. However, the trial court ruled that the evidence was nevertheless admissible to prove the defendant's motive to commit the charged offense.³⁰ On interlocutory appeal, the supreme court concluded that although the trial court's analysis of the extrinsic act evidence was defective, the result was correct.³¹ As discussed above, the question is whether the extrinsic act evidence is sufficiently similar or connected.³² In Young the first murder was clearly not similar to the second murder, but according to the prosecution's theory, it was connected.³³ The court held that there was sufficient evidence to establish a connection between the two offenses because the defendant was allegedly concerned his victim might be a "snitch" and tell authorities about the defendant's involvement in the first murder.³⁴

Although typically it is the prosecution that wants to introduce extrinsic act evidence, the defense sometimes seeks to introduce evidence of extrinsic conduct by victims. For example, in McWilliams v. State,³⁵ the defendant contended that the trial court should have admitted evidence of the alleged victim's history of illegal drug use and prostitu-tion.³⁶ On appeal, the supreme court acknowledged that although the character of a murder victim is generally irrelevant, evidence of a propensity for violence on the part of a victim can be admissible to support the defense of justification.³⁷ However, the defendant did not claim justification, and therefore that exception to the general rule was not applicable.³⁸ What the defendant did contend was that the trial court improperly excluded evidence that the victim was under the influence of drugs and alcohol at the time of his death.³⁹ The defendant adduced evidence from an expert that the combination of alcohol and cocaine intoxication "in some people, produces strange behavior, including aggression."⁴⁰ The supreme court reasoned that this was sufficient to prove a causal connection between evidence of the victim's history of intoxication and the victim's behavior, and thus the evidence should have been admitted.⁴¹ The error, however, was not prejudicial, and therefore the supreme court affirmed the defendant's conviction.⁴²

Extrinsic act evidence can also be relevant in civil cases, although, perhaps ironically, courts seem more reluctant to admit extrinsic act evidence in civil cases than in criminal cases. It would seem that in criminal cases, when freedom and potentially life itself are at stake, the courts would be more circumspect in the admission of prejudicial extrinsic act evidence than in civil cases, which typically involve only monetary damages. There is, however, a logical basis for this dichotomy. Criminal cases typically concern intentional conduct and therefore raise issues such as motive, scheme, identity, or other state of mind issues. Thus, for example, proof that a defendant intentionally committed a similar offense may tend to identify him as the perpetrator of the charged offense. Civil cases, on the other hand, typically do not involve state of mind issues, but rather involve issues of negligence or other unintentional acts. The fact that someone was negligent on a prior occasion would prove nothing in a suit arising from a subsequent allegedly negligent act, except perhaps that the defendant was prone to be negligent, and propensity is generally not a permissible use of extrinsic act evidence. As in criminal cases, the issue in civil cases is whether the extrinsic act is relevant to some issue in the case.

Perhaps contrary to the general impression that it is more difficult to get extrinsic act evidence admitted in civil cases than in criminal cases, the court of appeals took an expansive view of the use of extrinsic act evidence in Kellett v. Kumar.⁴³ In Kellett the plaintiffs contended that the defendants breached fiduciary duties arising from the parties' nursing home partnership.⁴⁴ Over the defendants' objection, the trial court allowed the plaintiffs to cross-examine one defendant about a prior lawsuit in which it was alleged that he had breached fiduciary duties arising from a similar agreement involving another nursing home.⁴⁵ On appeal, the court of appeals acknowledged that extrinsic act evidence is generally inadmissible in civil cases.⁴⁶ However, the court noted that "'such evidence may under certain limited circumstances be admissible to establish, among other...