Evidence - Mark T. Treadwell

• Publication year: 1999

Evidenceby Marc T. Treadwell^*

I. Introduction

The survey period saw a number of cases raising significant evidentiary issues. Most notable is the continuing evolution of the necessity exception to the rule against hearsay. During the survey period, the Supreme Court added a third prong to the test for the admission of evidence pursuant to the necessity exception, and thus seemingly narrowed the scope of the exception. However, the court also expanded the circumstances that constitute the "unavailability" of a witness. The net effect seems to be an expansion of the necessity exception.

II. Objections

With the possible exception of the harmless error doctrine, the most effective weapon in an appellate court's arsenal to repel an appeal is the contemporaneous objection rule, which requires lawyers to object timely and properly to an evidentiary ruling. When an appellate court acidly notes that the "record resounds with the silence caused by the absence of an objection to this testimony,"¹ the mind pictures a lawyer dozing placidly at counsel's table. Yet all lawyers can sympathize with those who find themselves the subject of a pronouncement, made in the calm and ordered world of appellate proceedings, that they failed to object timely or properly in the heat of a trial court battle.

There is still one exception to the contemporaneous objection rule, an exception that seemed on the verge of demise, but which has stubbornly held on. The Georgia courts have long held that hearsay evidence, even if not objected to, is wholly without probative value and thus cannot support a verdict. In Sharpe v. Department of Transportation,² a decision discussed in a previous survey,³ the supreme court expanded the contemporaneous objection rule and barred the use of a subsequent motion to strike to attack "illegal evidence."⁴ It seemed implicit in the holding that the court also would reject the principle that hearsay, even though not objected to, has no probative value. However, the supreme court has yet to formally renounce this principle. Thus, in Day v. State,⁵ the court of appeals reversed a conviction that was based on hearsay evidence even though defendant did not object to the introduction of this evidence.⁶ Noting that "[w]e are not at liberty to overrule the established line of authority for this rule, to which the Supreme Court of Georgia adheres,"⁷ the court of appeals conceded that hearsay evidence is without probative value and '"its introduction without objection does not give it any weight or force whatever in establishing a fact.'"⁸

Although motions in limine are valuable tools to resolve evidentiary issues prior to trial, lawyers must ensure that they preserve for appeal the issues raised by the motion. While it is true, as discussed in a previous survey,⁹ that the court of appeals has held that "where the trial court's ruling on a motion in limine is violated, further objection at trial is unnecessary to preserve the matter for appellate review," the mere filing of a motion does not preserve an issue for appeal.¹⁰ In Orr v. CSX Transportation, Inc.,¹¹ plaintiff moved in limine to exclude portions of the testimony of defendant's expert that would be presented by deposition at trial. However, the trial court did not, at least on the record, rule on the motion. When defendant presented the deposition testimony at trial, plaintiff did not object.¹² The court of appeals held that under these circumstances the plaintiff waived any objection to the testimony.¹³

In Johnson v. State,¹⁴ defendant contended on appeal that evidence of a conviction offered for impeachment purposes was inadmissible because the prosecution failed to prove that he was the defendant identified in the conviction. However, at trial defendant's counsel objected to the tender of the conviction only on the grounds that the prosecution had not laid a proper foundation for the admission of the conviction.¹⁵ The court of appeals held this was insufficient, stating "[i]t has long been the law that '[o]bjection on the ground of a lack of proper foundation without stating what the proper foundation should be is insufficient and presents nothing for consideration on appeal.'"¹⁶ The apparent harshness of this ruling is demonstrated by Judge Andrews' dissent in which he vigorously argued that "any fair construction of the record" revealed that defendant objected to the conviction on the grounds that the prosecution had not sufficiently established that he was the defendant in the conviction.¹⁷

III. Relevancy

A. Relevancy of Extrinsic Act Evidence

In the twelve 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. During the current survey period, Georgia courts rendered several notable extrinsic act evidence decisions.

In past years, the supreme court has often grappled with the issue of whether evidence of prior difficulties between a defendant and his victim falls within the scope of Uniform Superior Court Rule 31.3, which requires the prosecution to provide a defendant with notice of its intent to tender extrinsic evidence and to the trial court in order to convene a hearing to establish whether the prosecution can prove the elements necessary to the admission of extrinsic act evidence.¹⁸

In Maxwell v. State¹⁹ the supreme court held that prior difficulties evidence constituted extrinsic act evidence for the purposes of Rule

31.3.²⁰ However, as reported in last year's survey,²¹ the supreme court overruled Maxwell in Wall v. State.²² The court reasoned that a Rule 31.3 hearing would be superfluous.²³ At a Rule 31.3 hearing, the prosecution is required to make a so-called Williams showing, a test based on the supreme court's decision in Williams v. State.²⁴ First, the prosecution must prove the relevance of the extrinsic act evidence to a legitimate issue.²⁵ Second, the prosecution must prove that the defendant committed the independent offense or act.²⁶ Last, the prosecution must prove a sufficient connection or similarity between the prior act or offense and the charged offense.²⁷ The court in Wall reasoned that in the case of evidence of difficulties between a victim and a defendant, the Williams showing is necessarily satisfied.²⁸

During the current survey period, the supreme court addressed the opposite situation. In Owens v. State,²⁹ defendant contended that the trial court erred when it excluded evidence of prior difficulties between her and the victim, her husband. Defendant wanted to show that her husband became violent when he drank and would wave his gun at her. The trial court refused to admit this evidence because defendant had not met the requirements of Rules 31.1 and 31.6, which impose on a defendant requirements for the admission of extrinsic act evidence.³⁰ Noting that the State no longer had to comply with the similar requirements of Rules 31.1 and 31.3, the supreme court found there was now '"an imbalance of forces between the accused and his accuser.'"³¹ Accordingly, the court reversed defendant's conviction and held that the trial court erred when it excluded the evidence.³²

Defendants often seek to block the admission of extrinsic act evidence by arguing that the issues for which the evidence is being offered are not in dispute; thus, there is no need for the evidence. For example, in Livery v. State,³³ defendant contended that because he only asserted an alibi defense, the prosecution should not have been allowed to introduce extrinsic act evidence that was relevant to other issues.³⁴ The court of appeals disagreed: "The similar transaction evidence in this case provided proof of the State's prima facie case of attempted child molestation. The fact that [defendant] presented only an alibi defense does not make this evidence inadmissible for other permissible purposes."³⁵

Although the courts liberally admit extrinsic act evidence in criminal cases, there are some bounds. In Tyson v. State,³⁶ the court held that the trial court erred when it admitted evidence of a similar transaction that occurred twenty-seven years before the charged offense.³⁷ The court deemed this period of time simply too remote to be admissible.³⁸

Although the prosecution must prove that a defendant committed a similar transaction, it need not prove this beyond a reasonable doubt. Thus, in Grant v. State,³⁹ the court held that a trial court properly admitted evidence of a similar transaction even though defendant's conviction for that offense had been reversed on appeal.⁴⁰ The court also noted that the conviction for the similar transaction had been reversed on a very narrow ground, and thus the reversal did not establish that defendant did not commit a similar transaction.⁴¹

The scope of admissible extrinsic act evidence is generally narrower in civil cases than in criminal cases. At first glance this may seem odd; surely courts should be more reluctant to admit highly prejudicial extrinsic act evidence in criminal cases, in which freedom and occasionally life are at stake, than in civil cases. However, there is a logical basis for this disparate treatment. Civil cases rarely involve issues of intent, motive, scheme, or other issues that are in play in cases involving criminal misconduct. Rather, civil cases typically involve unintentional conduct, such as negligence. As reported in last year's survey,⁴² this reasoning seemed to guide the court of appeals in Dawson v. Fulton-DeKalb Hospital Authority.⁴³

In Dawson plaintiff contended that defendant's malpractice caused the death of her ten-year-old son. After a jury returned a small verdict in her favor, plaintiff appealed, contending among other things that the trial court erroneously admitted evidence that she failed to bring her child to four scheduled appointments prior to the surgery—allegedly causing her son's death. She argued that her failure to keep these appointments...