Evidence - Marc T. Treadwell

• Jurisdiction: Georgia,United States
• Publication year: 2008
• Citation: Vol. 60 No. 1

Evidenceby Marc T. Treadwell^*

I. Introduction

The most significant news during the current survey period, as in the past several survey periods, continued to be the judiciary's struggles with "tort reform" legislation enacted by the Georgia General Assembly in 2005, most notably Official Code of Georgia Annotated (O.C.G.A.) Sec. 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 If the Daubert decisions discussed in this survey are any indication, Georgia's appellate courts are far from reaching a consensus on the proper application and interpretation of Georgia's Daubert statute.

As discussed in many prior surveys,³ Georgia continues to creep, both through legislative enactments and initiatives of the State Bar of Georgia, toward the adoption of some form of the Federal Rules of Evidence. The 2008 version of the proposed Georgia Rules of Evidence can be found at the State Bar's website.⁴ Although the proposed Georgia Rules of Evidence did not receive serious attention in the 2008 session of the General Assembly, a study committee was formed to thoroughly review the proposed rules. The committee, which consists of members of the House and Senate Judiciary Committees, has appointed advisory members to assist in its examination of the proposed rules. The Committee Chair, Representative Wendell Willard, has announced that the committee will not recommend any major substantive changes in the rules as proposed by the State Bar of Georgia. Such changes, according to Representative Willard, should be the subject of separate legislation. By the time this survey is published, the proposed rules, with any changes recommended by the study committee, likely will have been introduced in the 2009 session of the General Assembly.

II. Presumptions

The destruction of evidence by a party may 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.⁶ During the survey period, Georgia's appellate courts addressed spoliation issues in two cases, both of which involved video evidence.

In Baxley v. Hakiel Industries, Inc.,⁷ the Georgia Supreme Court granted certiorari to consider whether the Georgia Court of Appeals properly affirmed the grant of summary judgment to a bar in a dram shop case.⁸ In Baxley the plaintiff was seriously injured when she was struck by a drunk driver, who had been drinking at the defendants' bars shortly before the collision. The court of appeals concluded that although there was an issue of fact regarding whether the motorist was visibly intoxicated, there was no evidence that the defendants knew or should have known that the driver would soon be driving a vehicle; this knowledge is a prerequisite to liability under the Dram Shop Act.⁹ However, at one of the bars, three video cameras recorded events while the driver was in the bar. The manager of the bar learned of the accident the day after it occurred and launched an investigation that consisted of interviewing employees who had worked on the night that the driver was in the bar. However, the manager claimed that he did not think it necessary to preserve the video recordings. The plaintiff argued that the trial court should have applied the spoliation presumption and given the plaintiff the benefit of an inference that the destroyed tapes would have been prejudicial to the bar and thus should have denied the bar's summary judgment motion.¹⁰ The supreme court agreed and reversed the court of appeals decision.¹¹

The supreme court noted that the bar manager was aware of the incident and of the fact that the motorist was in the bar and had interacted with bar employees.¹² Yet, the manager failed to preserve the recordings that may have revealed whether bar employees had reason to know that the drunken patron would be driving an automo-bile.¹³ "Thus, because [the bar's] manager was aware of the potential for litigation and failed to preserve whatever videotaped evidence may have been captured as to whether [the drunk driver] would soon be driving, a rebuttable presumption arose against [the bar]."¹⁴

The court of appeals decision in Wal-Mart Stores, Inc. v. Lee¹⁵ provides an excellent illustration of the remedies available to the trial court when a party fails to preserve evidence. In Lee the plaintiff claimed that Wal-Mart negligently failed to provide security at its store and that, as a result, the plaintiff was the victim of a criminal assault. The assault was captured on Wal-Mart's unmonitored surveillance cameras, and Wal-Mart provided the recordings from those cameras to the prosecutor who used the recordings to obtain convictions of the perpetrators. At the conclusion of the criminal proceedings, prosecutors returned the recordings to Wal-Mart. Wal-Mart then re-used the recordings, destroying the evidence of the assault on the plaintiff. The plaintiff contended that Wal-Mart's re-use of the tapes constituted spoliation and therefore warranted the imposition of severe sanctions. The trial court agreed and made detailed factual findings in support of its conclusion.¹⁶

First, the trial court reasoned that although litigation had not been commenced at the time the tapes were re-used, Wal-Mart had previously received a letter from the plaintiff's former counsel seeking to settle the claims against Wal-Mart.¹⁷ The trial court noted that it is not neces- sary for litigation to actually be pending at the time of the destruction of the evidence; the threat of litigation is sufficient to put a party on notice that physical evidence should be preserved. Second, Wal-Mart's contention that the tapes were re-used in the normal course of business ran counter to Wal-Mart's record retention policy, which required that evidence involving potential claims be preserved for seven years. The destruction of the evidence clearly prejudiced the plaintiff because it depicted not only the assault but events leading up to the assault, including an attempted assault approximately twenty minutes before the assault on the plaintiff.¹⁸ Although the trial court specifically declined to conclude that Wal-Mart had acted in bad faith, it noted that the destruction of the videotape was "disturbing."¹⁹

With regard to sanctions, the trial court was creative. First, the court ruled that the recollections of the plaintiff and her mother about the events depicted on the videotape would be accepted as stipulated facts. Wal-Mart could not contradict those facts. However, it could, through expert testimony, interpret the significance of those facts. Second, the plaintiff would enjoy the benefit of the spoliation presumption. Therefore, the jury would be charged that the spoliation of the tape recordings created a rebuttable presumption that the evidence would have been harmful to Wal-Mart.²⁰

The court of appeals affirmed, rejecting Wal-Mart's main contention that because the trial court made no express finding of bad faith, sanctions were inappropriate.²¹ The court of appeals noted that Wal-Mart could cite "no authority requiring such a finding before the imposition of those sanctions involved here."²² While a trial court must consider many factors, including the degree of culpability by the party destroying the evidence, there is no requirement that the court find the party acted in bad faith.²³

III. Relevancy

A. Extrinsic Act Evidence

Since the Author began surveying evidence decisions for Mercer Law Review's Annual Survey of Georgia Law in 1988, the most frequently encountered relevancy issue, by far, 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. It is offered as substantive evidence, as opposed to impeachment evidence.²⁴ Georgia courts tend to use the phrase "similar transaction evidence" when referring to extrinsic act evidence, although as discussed in last year's survey,²⁵ it is not necessary that extrinsic act evidence be similar to be admissi-ble.²⁶ Rather, the question 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.'"²⁷

Technically, extrinsic act evidence is irrelevant and thus inadmissible except pursuant to recognized exceptions.²⁸ In criminal cases, however, the admission of extrinsic act evidence has become routine, and the affirmation of trial court rulings admitting extrinsic act evidence is the norm. Thus, trial court admittance of extrinsic act evidence is generally only noteworthy when Georgia appellate courts reverse trial courts' decisions, as the court of appeals did in Usher v. State.²⁹

In Usher the defendant contended that the trial court erroneously admitted evidence of his prior burglaries during his trial for aggravated assault against a person sixty-five years of age or older.³⁰ The prosecution contended that the defendant broke into the home of the elderly victim, assaulted her, attempted to rape her, and stole the victim's money. The prosecution tendered evidence of the prior burglaries to prove identity. In both of the prior burglaries, the defendant broke into unoccupied houses and stole jewelry.³¹ While it is appropriate to use extrinsic act evidence to prove identity, courts apply a more stringent standard for admittance than when extrinsic act evidence is offered to prove motive or intent.³² Specifically, "the prior bad act and the charged offense must be 'so nearly identical in method so as to earmark both the prior act and [the charged] offense as the handiwork of the accused.'"³³

The Georgia Court of Appeals held that the defendant's prior burglaries did not meet this stringent standard.³⁴ While the prior burglaries involved entering homes and taking personal property...