GSB Vol. 13, NO. 1, Pg. 30. A Brief Overview of the Proposed New Georgia Rules of Evidence.

Author:Paul S. Millich Introduction by Robert D. Ingram

Georgia Bar Journal

Volume 13.

GSB Vol. 13, NO. 1, Pg. 30.

A Brief Overview of the Proposed New Georgia Rules of Evidence

GSB JournalVol. 13, NO. 1August 2007A Brief Overview of the Proposed New Georgia Rules of EvidencePaul S. Millich Introduction by Robert D. IngramFollowing this introduction is an overview prepared by Professor Paul S. Milich of the significant changes from the current Georgia Rules of Evidence to the New Georgia Rules of Evidence, which would occur under the proposed Rules of Evidence being put forward by the Evidence Study Committee.

The Evidence Study Committee was formed in August 1986 by Bar President Bob Brinson, and functioned actively from 1986-91. The committee, chaired by Frank C. Jones, wrote a set of rules that passed the Board of Governors on two separate occasions in 1988 and 1990. A bill was introduced in the General Assembly in January 1989 and again in January 1991. On each occasion, the bill was approved by the Senate, once unanimously, and on the other occasion with only a few dissenting votes. On both occasions, the House Judiciary Committee held up the bill, and it was not considered on the floor.

According to Jones, "Our failure to get favorable action in the House was due primarily to opposition from the then Speaker. We met with him, and several members of the House Judiciary Committee, in an effort to obtain support but were unsuccessful."

As a result of not obtaining support from the House Judiciary Committee, efforts were stalled until recently. In 2003 under President Bill Barwick, the Evidence Study Committee was reactivated with Ray Persons as chair. Most recently, at Immediate Past Bar President Jay Cook's urging, the committee refocused their energies on informing and obtaining input from lawyers across the state about the proposed changes to the Rules of Evidence. Presentations were made to the Atlanta Bar, the North Fulton Bar, the Gwinnett Bar and the Sandy Springs Bar associations. An update was also given to nearly 300 attorneys who watched a broadcast on the CLE program on evidence. In January of this year, a program was presented to 80 lawyers and judges on the proposed rules. Updates have also been given to judges of superior courts, state courts and juvenile courts at ICJE meetings.

"All responses were very positive and encouraging," Persons said. "In fact, in all our many presentations and seminars, we have heard nothing but support for moving forward."

The Evidence Study Committee encourages all Bar members to carefully study this important and comprehensive proposed change in Georgia's evidence law. Your representatives on the Board of Governors will be voting on this no earlier than the fall meeting and welcome your advice. For a list of Board members by circuit, please visit

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. To Judge Irwin fell the task of preparing the Code of Practice which included civil procedure, equity practice, and the 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.

Most of Georgia's current rules of evidence are derived from the Code of 1863. But litigation has changed substantially over the last 140 years. With the liberalization of pre-trial discovery, growth in the use of experts, and the increase in the education and experience of the average juror, the pressure has been to open up the trial-to let in more evidence, more efficiently.

Georgia courts have not been immune to this pressure and have struggled with the older statutes to broaden the admissibility of probative evidence. Indeed, in some cases, Georgia courts nearly have abandoned the statutes and, from necessity, developed rules in a common law like manner. These incremental efforts have helped keep Georgia law somewhat current. But the overall result is not that satisfying. From the standpoint of the trial judge and lawyer, "the rule" is not...

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