An Overview of Ultimate Issue Evidence
| Citation | Vol. 25 No. 6 Pg. 0018 |
| Pages | 0018 |
| Publication year | 2020 |
An Overview of Ultimate Issue Evidence
Attorneys and judges must be clear on the current Rules of Evidence and the case law that interprets them. If not . . . attorneys and judges "risk obtaining reversible evidence rulings from trial courts."
BY BRETT M. ADAMS
On Jan. 1, 2013, Georgia saw an overhaul of its Evidence Code. Georgia adopted, almost wholesale, the Federal Rules of Evidence in that overhaul.[1] Many, if not most, of the Rules of Evidence that the majority of lawyers had employed were altered. Some changes were subtle, while others were more drastic. We are now more than seven years out from that Evidence Code, and multiple graduating law school classes have never known anything but the current Evidence Code. Yet, there are still some lawyers in Georgia who have not acquainted themselves with the "new" Code and continue to hold onto the old rules.[2] Indeed, it seems at this point silly to call it the "new" Evidence Code after seven years. Judges have also been guilty of not fully applying the current Code of Evidence.[3]
It is our obligation, as lawyers and judges, to stay abreast of the Evidence Code. The justices of the Supreme Court of Georgia are clearly becoming tired of having attorneys cite case law interpreting the former Evidence Code and failing to cite the current Rules of Evidence and the resulting case law progeny. Even the Court of Appeals of Georgia appears to have, on occasion, inadvertently forgotten Justice Nahmias's cautioned reproach when it comes to ultimate issue evidence.[4] As Justice Nahmias cautioned in Davis v. State, and as Justice Warren had to repeat in March 2019:
Georgia lawyers do this Court no fa-vors—and risk obtaining reversible evidence rulings from trial courts— when they fail to recognize that we are all living in a new evidence world and are required to analyze and apply the new law....We trust that this shortcoming will not be repeated in future cases coming to this Court.[5]
One such rule that saw a drastic change is the Ultimate Issue Rule in O.C.G.A. § 24-7-704, which until 2013 had been guided by case law.[6]
Ultimate issue evidence answers the legal or factual issue at stake, such as the elements of a crime in criminal law or liability in a civil suit. The change from the former Georgia Evidence Code is so drastic that it is important to know what the current law says.
This article first seeks to lay out what O.C.G.A. § 24-7-704 allows and does not allow regarding opinions and inferences that go to the ultimate issue. Second, this article will draw attention to how the Supreme Court of Georgia and the Court of Appeals of Georgia have interpreted § 24-7-704, and what caveats exist in regards to the statute. Finally, this article will provide suggestions for attorneys on how to be aware of ultimate issue opinions and inferences and how to avoid pitfalls in objecting to such opinions.
Ultimate issue evidence answers the legal or factual issue at stake, such as the elements of a crime in criminal law or liability in a civil suit.
Brief History
Before 2013, there was no Georgia statutory rule regarding ultimate issue. Instead, the rule regarding ultimate issue evidence came to the Georgia courts by way of the common law, and was therefore a rule crafted and altered by the courts. The traditional rule regarding ultimate issue was that "a witness may not express his opinion as to an ultimate fact, because to do so would invade the province of the jury."[7]
Because the rule regarding opinion evidence relating to the ultimate issue came from the common law, there were exceptions that had been created and crafted by the appellate courts. For example, "Expert opinion testimony on issues to be decided by the jury, even the ultimate issue, is admissible where the conclusion of the expert is one which jurors would not ordinarily be able to draw for themselves; i.e., the conclusion is beyond the ken of the average layman."[8]
The Supreme Court of Georgia itself had already started to tear down the walls that excluded opinions and inferences on ultimate issue by the time that an Ultimate Issue Rule was codified, and the Court itself considered adopting the federal rule regarding ultimate issue. As far back as Smith v. State in 1981, the Supreme Court of Georgia considered its adoption.[9] The Court held, "Expert opinion testimony on issues to be decided by the jury, even the ultimate issue, is admissible where the conclusion of the expert is one which jurors would not ordinarily be able to draw for themselves; i.e., the conclusion is beyond the ken of the average layman."[10]
With the current Code of Evidence, the common law rules relating to ultimate issue were put aside in favor of a statutory approach, and attorneys and judges must look to post-2013 Georgia cases and federal case law for an understanding in how to interpret the statutory rule.[11] The current rule, found at O.C.G.A. § 24-7-704 and modeled on Federal Rule of Evidence 704,[12] is exceedingly broad. The statute provides:
(a) Except as provided in subsection (b) of this Code section, testimony in the form of an opinion or inference otherwise admissible shall not be objectionable because it embraces an ultimate issue to be decided by the trier of fact.
(b) No expert witness testifying with respect to the mental state or condition of an accused in a criminal proceeding shall state an opinion or inference as to whether the accused did or did not have the mental state or condition constituting an element of the crime charged or of a defense thereto. Such ultimate issues are matters for the trier of fact alone.[13]
Although with the enactment of O.C.G.A. § 24-7-704, a rule has been promulgated regarding ultimate issue opinion testimony, many attorneys and judges are apparently unaware of its ex-istence.[14] Further complicating the matter is the fact that there are only so many cases that can fill the Georgia appellate courts' dockets, and the Supreme Court of Georgia has recognized that there remains "work to do in interpreting the new Code."[15] With regard to ultimate issue, the Supreme Court of Georgia likely does have some work ahead. As of the date of writing, there are only 22 Georgia cases that cite O.C.G.A. § 24-7-704.[16] Of those, only seven refer to the statute to state that it is the new relevant statute, because the case was decided under the "old" rules of evidence, and does not itself make any rulings affecting § 24-7-704.[17] Furthermore, of the remaining 15 cases, the Court does not reach ultimate issue in six of them and decides the case on other grounds.[18] As a result, only nine Georgia cases provide any information on the appellate courts' interpretation of O.C.G.A. § 24-7-704.
Ultimate Issue Under the Current Evidence Code
As stated, the statute is exceedingly broad. As a result, an opinion or inference, as long as it is otherwise admissible, is only objectionable if 1) it is offered in a criminal proceeding; 2) it is an expert witness testifying; 3) the opinion or inference relates to whether the accused/defendant had the requisite mental state or condition; and 4) said mental state or condition is an element of the crime or defense to the crime.[19] These are elements, not factors, that a judge must consider. The Supreme Court of Georgia has been literal in looking at ultimate issue cases.
Hence, the Supreme Court of Georgia found in Eller v. State that "[w]hether the accused committed an intentional act to harm the victim is a different question than whether someone likely committed an intentional act to harm the victim."[20] In Eller, the Georgia Bureau of Investigation chief medical examiner, tendered by the state as an expert, testified that the gunshot injuries sustained by the victim were inconsistent with the Defendant's claim of accident and justification because of the patterns of the wounds, the wounds themselves and other forensic evidence.[21]
The Supreme Court of Georgia found that, to be objectionable, the opinion has to be specifically about the defendant's state of mind or condition, not simply that someone (even though it's a category into which the defendant naturally falls) had that state of mind or condition.[22] The Court reiterated this strict adherence...
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