The Best Evidence Rule Made Better: a Glimpse Into Georgia’s New Evidence Code
| Publication year | 2013 |
| Pages | 0012 |
A Look at the Law
The Best Evidence Rule Made Better:
A Glimpse into Georgia's New Evidence Code
by W. Matthew Wilson and Prof. Ronald L. Carlson
In a recent divorce case before Judge Bartlett in the Superior Court of Sorkin County, Sam Seaborn was about to play an audio recording to the jury. His client, Ainsley Hayes, had surreptitiously recorded her husband during a heated argument in their living room. On the tape, Dr. Hayes confessed that he had been having an affair with his partner's wife. Dr. Hayes and his partner own a very successful orthopedic clinic. Seaborn announced: "Judge, we are ready to play the tape. It is a blockbuster record of Dr. Hayes's philandering. The recording is a true copy of the original. Mrs. Hayes keeps the original locked in her deposit box at Lincoln Federal for safekeeping."
"Objection," roared Dr. Hayes's attorney, Bruno Gianelli. "We have heard this recording. Parts of it are so garbled that they are unintelligible. Plus, this is not the original. Violation of the best evidence rule, your honor."
Seaborn responded: "Your honor, everybody knows the Georgia best evidence rule does not apply to sound recordings. The Georgia rule is restricted to writings."
At this point, Judge Bartlett interrupted: "Mr. Seaborn, you were correct as to the posture of the law up to Jan. 1, 2013. At that point in time, the rules changed. Under the new rules of evidence, you must either produce the original, or account for its absence."[1]
How could it be that audio recordings were exempt from best evidence considerations through 2012? After all, originals of sound recordings had been subject to rules of production in federal and other courts for decades. The answer lies in the fact that Georgia lawyers were controlled by Georgia's 1863 code for 150 years.
For those not familiar with the inner workings of Georgia's previous evidence code, it may be difficult to believe that until January of this year, Georgia jurists were laboring with a code that did not contemplate any technological advances of the previous century and a half. Indeed, while courts across the country grappled to apply evidence rules to modern social media including Facebook postings, Twitter tweets and YouTube videos, Georgia struggled to use evidence rules that failed to perceive the not-so-modern use of electricity, telephones and photography.
Georgia's original Code of Evidence was adopted in 1863 and was based on the significant work of the reporter of the Supreme Court of Georgia and one-third founder of the University of Georgia School of Law, Thomas R.R. Cobb.[2] Cobb's code was enacted around the time that Georgia voted to secede from the Union and was adopted after Georgia had joined the Confederacy.[3] Although the Code was completed on schedule by the commissioners, a shortage of quality paper in the war-torn Confederacy delayed the Code's publication until 1863.[4] This time period included the
first arrival of print photography,[5]and was 15 years prior to Alexander Graham Bell's telephone.[6]
The Road to a New Code
The State Bar of Georgia began a study of the evidence rules in the mid-1980s and produced a proposal of new rules in a report to the Georgia General Assembly in 1989.[7] Then state Sen. Nathan Deal introduced the legislation in the Senate, which voted unanimously in favor of the bill.[8] However, the measure was bottled up in the House and for a number of years the challenge of moving it forward proved intractable.[9]
After struggling for many years, the efforts of Bar leaders, the study committee, its reporter and legislative supporters paid off. The State Bar introduced HB 24 during the 2011 legislative session.[10]State Bar President Lester Tate announced it as "one of the most thoroughly vetted bills in the history of the Bar," and touted support for its unamended passage by the State Bar, Georgia Chamber of Commerce, Georgia Trial Lawyers Association, Georgia Association of Criminal Defense Lawyers, Council of Superior Court Judges and Medical Association of Georgia.[11] Twenty-two years after he first introduced reform legislation, Gov. Deal signed the new evidence rules into law during a ceremony at the State Bar on May 3, 2011.[12]
An Improved Best Evidence Rule
Georgia's new Evidence Code requires lawyers and judges to make changes to their litigation methods—some slight, and others much more significant. One significant change that makes lawyers' jobs much easier is the expansion of the best evidence rule. Indeed, while there are many examples in the new code of much needed modernization, perhaps none is starker than the best evidence rule. Analyzing this rule's impact before and after the 2011 rewrite highlights the significant improvement of justice the code allows by addressing modern technology.
The best evidence rule was first designed to prevent inaccuracy and fraud when the contents of a writing were in dispute. This common law principle was codified in Georgia prior to mass electrification at a time when photography and audio and video recordings were still at their earliest stages of invention. The concept behind this principle is simple: accuracy and reliability are greatly improved when a witness attempts to prove the contents of a writing by requiring that the writing first be introduced into evidence. The introduction of the writing prevented a witness from presenting speculative or fraudulent testimony as to the writing's content.
The Legislature later amended the Georgia Evidence Code to provide for the admissibility of secondary evidence in those circumstances in which the party offering the evidence has made a sufficient showing of the reason why the original writing was unavailable or the party offered a certified copy of the original.[13] However, the courts continued to apply the best evidence rule to writings only.[14] Indeed, Georgia courts refused to extend its application to photographs,[15] audio recordings[16] or video recordings.[17]
The best evidence rule is now found at O.C.G.A. § 24-10-1001 et seq. and has been specifically extended to include electronically recorded data, photographs and recordings of audio and video.[18]Thus, lawyers who were formerly uncertain about the application of the rules to modern evidence now have a systematic set of statutes to guide the process.
Absence of the Original Writing or Recording
Under some circumstances, a party may establish the content of a writing or recording by use of secondary evidence. The circumstances under which the court might accept secondary evidence in lieu of an original writing were contained in numerous different sections of the previous evidence code.[19] The new evidence code has one Code section governing the circumstances under which an original shall not be required: (1) if the original writing or recording has been lost or destroyed in absence of bad faith, (2) if the original is outside the jurisdiction of the court, (3) if the original is in possession of an opponent and (4) if the document's role is collateral.[20]
One case in particular illustrates how some courts have found the first circumstance especially well suited for electronic evidence. In Lorraine v. Markel Am. Ins. Co., the federal district court in Maryland noted:
Given the myriad ways that electronic records may be deleted, lost as a result of system malfunctions, purged as a result of routine electronic records management software (such as the automatic deletion of email after a set time period) or otherwise unavailable means that the contents of electronic writings may have to be proved by secondary evidence.[21]
The new evidence code does not recognize degrees of secondary evidence, which is consistent with federal law.[22] However, the new Code does provide for a preference for certified or compared copies when dealing with public records.[23] Additionally, if a party has provided a sufficient reason for the nonproduction of an original, a witness' recollection of a...
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