Georgia's New Evidence Code - an Overview
| Jurisdiction | Georgia,United States |
| Publication year | 2010 |
| Citation | Vol. 28 No. 2 |
Georgia State University Law Review
3-14-2012
Georgia's New Evidence Code - An Overview
Paul S. Milich
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Recommended Citation
Milich, Paul S. (2011) "Georgia's New Evidence Code - An Overview ," Georgia State University Law Review: Vol. 28: Iss. 2, Article 3. Available at: http://digitalarchive.gsu.edu/gsulr/vol28/iss2/3
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GEORGIA'S NEW EVIDENCE CODE - AN OVERVIEW
Paul S. Milich1
I. A Brief History - A Long and Winding Road........................380
II. A Structural Overview of the New Evidence Code..........384
III. A Brief Overview of Thirty-Eight Significant Changes
Wrought by the New Rules.................................................387
(A) General Rules Applying to Both Civil and Criminal
Trials..................................................................................387
(B) Rules Relating to Criminal Trials......................................405
(C) Rules Relating to Civil Trials.............................................414
IV. Unfinished Business—A Few Issues to Address in the Future.....................................................................................419
V. Conclusion.............................................................................421
On May 3, 2011, Governor Nathan Deal signed into law House Bill 24 (HB 24) bringing a new set of evidence rules to the State of Georgia.2 The new rules3 will go into effect on January 1, 2013. The author of this article was the Reporter for the State Bar Evidence Study Committee when new rules were first proposed back in the mid-1980s, and again throughout the recent, successful effort to reform the rules. Part I of this article will give a brief history of the twenty-six-year effort to bring new evidence rules to Georgia. Part II will provide a structural overview of the new rules. Part III will then describe thirty-eight significant changes that judges and trial lawyers will find in the new rules. Finally, Part IV will mention a few evidentiary issues that still need attention.
1. Professor of Law and Director of the Litigation Program, Georgia State University, College of Law. Professor Milich was the Reporter for the State Bar of Georgia Evidence Study Committee that proposed the new rules of evidence Law. Professor Milich was the Reporter for the State Bar of Georgia Evidence Study Committee that proposed the new rules of evidence.
2. 2011 Ga. Laws 52 (to be codified in Ga. Code Ann.).
3. For the purposes of this article, "new rules" refers to the rule that will go into effect January 1, 2013. "Current rules" refers to the rules in effect prior to January 1, 2013.
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I. A Brief History - A Long and Winding Road
Georgia's current rules of evidence are mostly contained in Title 24, and most of Title 24 is based on the Code of 1863. In 1858, the Georgia Legislature appointed three commissioners, Richard Clark, Thomas R. Cobb, and David Irwin, to prepare a code which should "as near as practicable, embrace in a condensed form, the laws of Georgia," including the common law and principles of equity then recognized by the courts of this state.4 It was a massive task for the commissioners, and they were given less than two years to finish it. To Judge Irwin fell the task of preparing the Code of Practice, which included civil procedure, equity practice, and rules of evidence. The work was completed in 1860 and adopted by the legislature with only a few minor changes in December of that year. Due to the war, publication was delayed until 1863, and thus, the code has been referred to ever since as the Code of 1863.
Although a few rules were added or changed over the years, the core of Title 24 remains a product of nineteenth century views on trial procedure. To state that these antiquated rules poorly address the needs and realities of twenty-first century courtrooms is an understatement.5 In 1975, Congress passed the Federal Rules of Evidence and this inspired many states to modernize their own rules. By 1985, more than thirty states had adopted new rules of evidence based on the Federal Rules.6
In 1985, the Board of Governors of the State Bar of Georgia "approved in principle" a proposal to study whether Georgia should adopt new rules of evidence based more or less on the Federal Rules of Evidence. In 1986, Robert Brinson, the president of the State Bar,
4. Richard H. Clark, The History of the First Georgia Code, in Report of the Seventh Annual Meeting of the Georgia Bar Association, 144 (1890).
5. See Paul S. Milich, Georgia Rules of Evidence § 1.1, at 1-3 (2011-2012 ed. 2011).
6. That number has since grown. Georgia is the forty-fourth state to adopt new rules based on the Federal Rules of Evidence. 6 Jack B. Weinstein & Margaret A. Berger, Weinstein's Federal Evidence ch. T, notes (Joseph M. McLaughlin ed., 2d ed. 2011) (listing forty-two of the states). The forty-third state, Illinois, adopted new rules in late 2010. See Chris Bonjean, Supreme Court Approves Illinois Rules of Evidence, Ill. St. b. Ass'n (Sept. 27, 2010), http://iln.isba.org/2010/09/27/supreme-court-approves-illinois-rules-of-evidence.
2012] GEORGIA'S EVIDENCE CODE 381
appointed Frank C. Jones chairman of the Evidence Study Committee. The committee's mission was to explore reform of Georgia's old evidence code. The committee undertook an intensive review of the differences between the Federal Rules and Georgia's rules.
In 1987, the General Assembly adopted a joint resolution encouraging the study of Georgia's evidence rules. In 1988, the State Bar Evidence Study Committee completed its report to the Bar with a full draft of the proposed new rules. The Board of Governors approved the new rules and they were introduced, with the State Bar's support, in the 1989 legislative session.
The proposed new rules were warmly received in the Senate where then-Senator Nathan Deal sponsored them. They passed the Senate twice, unanimously in 1990, but with a few negative votes in 1991. The reception in the House, however, was less warm. Speaker Tom Murphy, a trial lawyer, was initially ambivalent about adopting new evidence rules. With his characteristic humor, he told this author that he was an old dinosaur and that old dinosaurs don't like to learn new tricks. After numerous efforts to convince him that the new rules were right for Georgia, the Speaker told Chairman Jones and this author, "Georgia will someday have new rules of evidence—just not while I am Speaker." The proposed new rules of evidence were never scheduled for a vote in the House Judiciary Committee.
Taking the Speaker at his word, the State Bar backed off the project until 2002 when Speaker Murphy was defeated in his bid for reelection. State Bar President Bill Barwick reactivated the Evidence Study Committee in 2003 with Ray Persons as chair and Thomas M. Byrne as vice chair.7 The committee produced a detailed analysis and draft of the proposed new rules in 2005, but progress on the political front faltered as the Bar received mixed messages from key legislators as to their appetite for undertaking evidence reform.
In 2008, the State Bar Board of Governors approved the new rules. The Chair of the House Judiciary Committee, Wendell Willard, welcomed the proposal to advance new rules with one important
7. Thomas Byrne eventually succeeded Ray Persons as chair in 2009.
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proviso: the new rules could not attempt to alter any of the policies that were part of the 2005 tort reform efforts. A few parts of the state Bar's proposal that addressed areas affected by the 2005 tort reform were withdrawn.8
In the summer of 2008, a Joint House and Senate Legislative Study Committee, chaired by Representative Wendell Willard and assisted by members of the State Bar Evidence Study Committee, met in fourteen sessions that undertook a line-by-line examination of the proposed rules. These sessions were open to the public and included input from a wide variety of legal and nonlegal organizations. This exhaustive review resulted in House Bill 24 (HB 24), introduced in the 2009 session.
It is difficult to get trial lawyers from so many different interest groups to agree on a wide-ranging set of evidence rules. One of the great advantages of a unified state bar is its ability to bring together all of these varied, and at times antagonistic, interests into constructive dialog. Personal injury lawyers argue with insurance defense lawyers; creditors' rights advocates fence with debtors' rights attorneys; prosecutors duel with criminal defense lawyers; and so on. The evidence proposal exposed generational differences as well. Some older trial lawyers, particularly those who practice rarely, if at all, in federal courts, naturally were not thrilled at the prospect of having to learn new evidence rules. Most younger litigators, on the other hand, were taught the Federal Rules in law school and were impatient for Georgia to adopt the new rules. Almost all of these differences were ironed out in the slow and steady course of negotiations, education, and compromise. But in 2009, it was apparent that one group was not yet convinced—Georgia prosecutors.
8. The State Bar's proposal would have provided some procedural guidance for the handling of Daubert motions and would have extended Daubert to criminal, as well as civil cases. See Evidence Study Comm., State Bar of Ga., Proposed New Rules of Evidence 76-80 (2005), available at http://www.gabar.org/public/pdf/news/proposed_new_evidence_rules.pdf [hereinafter Evidence Study]. The State Bar...
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