Evidence - Marc T. Treadwell

• Publication year: 2006

Evidenceby Marc T. Treadwell^*

I. Introduction

The most significant news during the current survey year continued to be the major legislative developments discussed in last year's survey.¹ Most significantly, the Georgia General Assembly, during its 2005 session, enacted Official Code of Georgia Annotated ("O.C.G.A.") section 24-9-67.1,² which purports to adopt, more or less, the United States Supreme Court's decision in Daubert v. Merrell Dow Pharmaceuticals, Inc.³ and its progeny, and creates special rules for expert testimony in medical negligence actions. In other words, Daubert has now come to Georgia and, as discussed below, there were both legislative and judicial developments regarding Georgia's new expert witness rule during the survery period.

As also discussed in last year's survey,⁴ the State Bar of Georgia has proposed that the General Assembly adopt, with some exceptions and variations, the Federal rules of Evidence. The current version of the proposed Rules can be found at the State Bar's website.⁵ However, there was no legislative action on the Rules during the 2006 sesssion of the General Assembly.

II. Objections

Georgia's contemporaneous objection rule requires a party to timely object to the introduction of evidence; the failure to do so precludes a party from raising the issue on appeal.⁶ The court of appeals decision in Telcom Cost Consulting, Inc. v. Warren⁷ provides an excellent primer on the contemporaneous objection rule and how the rule interacts with motions in limine and continuing objections. In Telcom the plaintiffs argued on appeal that the trial court erred when it allowed a witness to testify about prior consistent out-of-court statements made by another witness. The defendants responded that the plaintiffs had waived their right to appeal that issue because they had not moved in limine to preclude the testimony and they did not object each time the witness testified about the prior consistent statements.⁸ When the defendants first asked the witness whether she had discussed the transaction with the declarant, the plaintiffs objected on the grounds that the question called for hearsay.⁹ In response to that specific objection, the trial court ruled that the declarant's veracity had been attacked, and thus his prior consistent statements to the witness would be admissible.¹⁰ Thereafter, the plaintiffs raised no further objections.

In response to the defendants' argument that the plaintiffs had waived their right to appeal the admission of the prior consistent statements, the plaintiffs argued that their initial objection and the trial court's ruling on that objection was the "'functional equivalent of a motion in limine denied,'" and thus there was no further need for them to object.¹¹ The court of appeals first noted that a motion in limine can be used in two ways.¹² First, an attorney can ask the court to prohibit any mention of the disputed evidence in the presence of the jury until the admissibility of the evidence has been determined.¹³ Second, an attorney can seek a final ruling on the admissibility of evidence prior to the trial.¹⁴ Because the plaintiffs first raised the issue by way of an objection during the trial, the court easily concluded that the plaintiffs had not moved in limine, and thus, their objection and the ruling on that objection did not relieve them of their obligation to continue to object to inadmissible evidence.¹⁵ The court did not elaborate on the plaintiffs' point, but some discussion is appropriate. Generally speaking, if a party has made a proper motion in limine and the court has ruled on that motion, it is not necessary for the party to object to that evidence when it is tendered at trial.¹⁶ However, one should exercise caution when relying on motions in limine to preserve an issue for an appeal. For example, a ruling on a motion in limine may be correct at the time of the ruling, but when the issue arises again at trial—that is, when the evidence is tendered—the record may contain additional facts relevant to the issue. The safer course, it would seem, would be for a party to renew his objection when the disputed evidence is offered at trial to be sure that he has preserved his right to appeal the issue.

Because the plaintiffs in Telcom had not moved in limine to seek a final ruling on the admissibility of the evidence in question, they were not relieved of their obligation to object to that evidence when it was tendered.¹⁷ Moreover, when the trial court ruled on the plaintiffs' only objection, it made clear that it was ruling only on the specific question pending at the time. This ruling put the plaintiffs on notice that if the plaintiffs objected to further evidence, an additional objection would be required. Furthermore, the plaintiffs did not raise a proper continuing objection.¹⁸ To have a continuing objection to a line of questioning that would relieve a party from repeatedly objecting, the record must establish that the trial court has granted the party a right to a continuing objection and that the court's ruling covers subsequent questions.

III. Judicial Notice

The court of appeals decision in Ponce v. State¹⁹ illustrates a problem often encountered by lawyers asking a court to take judicial notice of state regulations. In its first time hearing Ponce, the court of appeals reversed the defendant's conviction on the ground that the trial court should have suppressed evidence obtained from a warrantless search of the defendant's commercial truck.²⁰ The supreme court vacated that decision and instructed the court of appeals to consider whether regulations promulgated by the Public Service Commission ("PSC") authorized the search of the defendant's truck.²¹ On remand to the court of appeals, the State argued that two PSC rules authorized law enforcement officers to inspect a commercial vehicle without a warrant or a reasonable suspicion of criminal activity.²² The court of appeals, however, held that it could not take judicial notice of these regulations because there was no evidence that the rules had been adopted in compliance with and pursuant to Georgia's Administrative Procedures Act ("the Act").²³ Pursuant to O.C.G.A. section 50-13-8,²⁴ a court can take judicial notice of state rules and regulations only if they were adopted in compliance with the Act.²⁵ The court's opinion discusses in some detail the court's search of both the secretary of state and PSC websites and its inability to find any indication that the PSC's rules had been adopted in accordance with the requirements of the Act.²⁶ Because there was no admissible evidence of the PSC rules, and because the court could not take judicial notice of the copies of the rules submitted by the prosecution, the court of appeals again reversed the defendant's conviction.²⁷

IV. Relevancy

Since the Author began surveying evidence decisions for the Georgia survey in 1988, the most frequently encountered relevancy issue has been whether extrinsic act evidence is relevant. "Extrinsic act evidence" refers to evidence of conduct on occasions other than the occasion at issue that is offered as substantive, as opposed to impeachment, evidence.²⁸ Generally, extrinsic act evidence is irrelevant and thus inadmissible.²⁹ 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 ofconduct.'"³⁰ Criminal defense lawyers from scarcely more than a generation ago would hardly recognize—and likely would be appalled at—the state of today's law of evidence, particularly as it relates to similar transaction evidence. The judiciary, on the other hand, does "'not concede, as suggested by some, that the exceptions have swallowed the rule of inadmissibility of separate crimes.'"³¹ That may be true, but concern that the floodgate has been opened to similar transaction evidence has led Georgia's appellate courts to use this precise quote on at least five occasions to douse any such suspicions.

As the admission of similar transaction evidence becomes more routine, it seems that prosecutors sometimes tend to grow lax in satisfying the prerequisites to the admissibility of extrinsic act evidence. This certainly seemed to be the case in Naillon v. State.³² In Naillon the defendant contended that the trial court erroneously admitted evidence that he had pleaded guilty to motor vehicle theft during his trial for theft by receiving stolen property, giving false information to an officer, and misrepresenting the identity of a vehicle by improperly transferring a license plate. To prove the prior conviction, the State called an employee of the Department of Corrections Probation Division who authenticated the certified copy of the defendant's conviction; however, the employee could provide no evidence about the facts or circumstances surrounding the conviction. The defendant contended that this evidence was insufficient to establish the requisite similarity between the extrinsic offense and the charged offense.³³ The court of appeals agreed.³⁴ Specifically, the court held:

[E]vidence that the defendant committed a prior offense is generally prejudicial, irrelevant, and inadmissible, even if the prior crime is of the same type for which the defendant is being tried. However, evidence of such prior crime may be admitted if "there is some logical connection between the independent act and the crime for which the

defendant is being tried, from which it can be said that proof of one tends to establish the other."³⁵

It is incumbent upon the State to offer evidence establishing that the extrinsic offense and the charged offense are so similar that proof that a defendant committed the prior offense tends to prove that he committed the charged offense.³⁶ Simply tendering...