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10 Cards in this Set
- Front
- Back
Current Rules
O.C.G.A. § 24-3-33: “Admissions by an agent or attorney-in-fact, during the existence and in pursuance of his agency, shall be admissible against the principal.” O.C.G.A. § 10-6-64: “The agent shall be a competent witness either for or against his principal. … The declarations of the agent as to the business transacted by him shall not be admissible against his principal unless they were part of the negotiation constituting the res gestae....” |
New Code
§ 24-8-801(d)(2)(D): Excludes from the hearsay rule “[a] statement by the party’s agent or employee …2 concerning a matter within the scope of the agency or employment, made during the existence of the relationship.” |
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Current Rules
O.C.G.A. § 24-3-14(b): Permits the use of a “memorandum or record of any act, transaction, occurrence or event” to prove the act, transaction, occurrence or event, provided the court finds the record was made in the regular course of business. |
New Code
§ 24-8-803(6): Allows the use of records, in any form, of “acts, events, conditions, opinions, or diagnoses” if “(A) made at or near the time of the described acts, events, conditions, opinions or diagnoses; (B) made by, or from information transmitted by, a person with personal knowledge and a business duty to report; (C) kept in the course of a regularly conducted business activity; and (D) it was the regular practice of that business activity to make the memorandum, report, record, or data compilation.” |
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Current Rules
O.C.G.A. § 24-7-4: Requires that the subscribing witness – that is, the person who signed the subject instrument as a witness – be produced, with exceptions that include “[i]f from any cause the witness cannot be produced or sworn.” A person who was not the subscribing witness is not competent to authenticate a document. McClinton v. Sullivan, 208 Ga.App. 411 (1993). The Court of Appeals has grappled with the question of what type of witness may authenticate a business record, but it has always held – despite the statute not saying so expressly – that a witness with personal knowledge of the origins of the record must lay the foundation before a court may admit a business record into evidence under the hearsay exception. Loyal v. State, 300 Ga.App. 65 (2009). |
New Code
§ 24-9-903: “The testimony of a subscribing witness shall not be necessary….” § 24-8-803(6): Provides that the foundation for a business record can be laid by “the custodian or other qualified witness or by certification that complies with paragraph (11) or (12) of Code Section 24-9-902….” § 24-9-902(11): Allows domestic records to be authenticated by a written declaration of a qualified witness that the record meets the requirements for the hearsay exception. § 24-9-902(12): Allows foreign records on the same terms, so long as the declaration is signed in a manner that, if falsely made, would subject the maker to criminal penalties in the country where it is signed. Where authentication is done by declaration, any adverse parties must be given notice and an opportunity to inspect and challenge the record and the declaration, sufficiently in advance of their being offered into evidence. |
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Current Rules
§ 24-9-20, et seq.: Provide a number of evidentiary privileges. Among these are: a) Privilege against selfincrimination; b) Secrets of state; c) Communications between: a. husband/wife; b. attorney/client; c. psychiatrist/patient; d. grand jurors; e. licensed psychologist/patient; f. patient/licensed clinical social worker or nurse specialist in mental health, etc.; Note: A doctor’s privilege does not cover a nurse who is an agent of the hospital and not the doctor. Myers v. State, 251 Ga. 883 (1984). Where the mental health professional is not a psychiatrist or clinical psychologist, there is no privilege. Lipsey v. State, 170 Ga.App. 770 (1984). d) Clergyman/penitent; On its face, only applies to Christian or Jewish clergy. No case law testing that limitation. Does not apply to a “spiritual advisor” or a “psychic.” Manous v. State, 200 Ga.App. 293 (1991). e) Spousal privilege – One spouse may not be compelled to testify against the other in a criminal proceedi |
New Code
§ 24-5-501, et seq.: Provide a number of evidentiary privileges. Among these are: a) Privilege against self-incrimination; b) Secrets of state; c) Communications between: a. husband/wife; b. attorney/client; c. grand jurors; d. psychiatrist/patient; e. psychologist/patient; f. patient/licensed clinical social worker or nurse specialist in mental health, etc; d) Clergyman/penitent; Again, only appears to cover Christian and Jewish clergy. e) Spousal privilege; f) § 24-5-504: Privilege of a law enforcement officer not to be compelled to reveal his home address; g) Privilege of witness from being required to give testimony that will incriminate himself or bring infamy, disgrace, or public contempt on himself or his family; no witness shall be compelled to testify to a matter that will tend to work a forfeiture of his estate, except in post-judgment discovery; h) Journalist’s privilege; i) § 24-12-30: Librarians; j) § 24-12-31: Veterinarians. |
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Current Rules
§ 24-9-83: “A witness may be impeached by contradictory statements previously made by him as to matters relevant to his testimony and to the case. Before contradictory statements may be proved against him, unless they are written statements made under oath in connection with some judicial proceedings, the time, place, person, and circumstances attending the former statements shall be called to his mind with as much certainty as possible. If the contradictory statements are in writing and in existence, they shall be shown to him or read in his hearing.” |
New Code
§ 24-6-613(a): “In examining a witness concerning a prior statement made by the witness, whether written or not, the statement need not be shown nor its contents disclosed to the witness at that time; provided, however, upon request the same shall be shown or disclosed to opposing counsel.” As |
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Current Rules
An expert can express an opinion on the meaning and application of treatises (although the contents of the treatises are not themselves admissible). “The opinion of an expert as to what conclusions may be properly drawn from statements in scientific works pertaining to his profession, amounts to something more than mere hearsay.” Rogers v. State, 202 Ga.App. 595 (1992). “[N]otwithstanding the inadmissibility of the books, the opinions contained therein may come to the jury through the mouth of an expert witness.” Boswell v. State, 114 Ga. 40 (1901). “[A]n expert witness may be crossexamined by reference to a standard treatise in the field of the expert's special knowledge to test his credibility, … [but] an expert cannot be cross-examined upon a treatise which has not been proved to be a standard treatise on the subject.” Wooten v. Department of Human Resources, 152 Ga.App. 304 (1979). |
New Code
§ 24-8-803: Excepts from the rule against hearsay: “[t]o the extent called to the attention of an expert witness upon cross-examination, statements contained in published treatises, periodicals, or pamphlets, whether published electronically or in print, on a subject of history, medicine, or other science or art, established as a reliable authority by the testimony or admission of the witness, by other expert testimony, or by judicial notice. If admitted, the statements may be used for cross-examination of an expert witness and read into evidence but shall not be received as exhibits.” |
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Current Rules
Summaries of voluminous records are allowed as competent evidence when the underlying records are available for examination by the opposing party. Tyner v. Sheriff, 164 Ga.App. 360 (1982). C.f., In re A.A., 252 Ga.App. 167 (2001). Court of Appeals held that a social worker’s summary of a voluminous case file was inadmissible hearsay. However, the contents of the file themselves were other social workers’ impressions and opinions, and the file itself was not produced. Regardless, the language of the opinion seems to question the admissibility of summaries in general. |
New Code
§ 24-10-1006: “The contents of otherwise admissible voluminous writings, recordings, or photographs which cannot conveniently be examined in court may be presented in the form of a chart, summary, or calculation. The originals, or duplicates, shall be made available for examination or copying, or both, by other parties at a reasonable time and place. The court may order that the contents of such writings, recordings, or photographs be produced in court.” |
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Current Rules
O.C.G.A. § 24-9-65: “Where the question under examination, and to be decided by the jury, shall be one of opinion, any witness may swear to his opinion or belief, giving his reasons therefor. If the issue shall be as to the existence of a fact, the opinions of witnesses shall be generally inadmissible.” “[A]s a general rule a witness is not permitted to express an opinion of ultimate fact or the fact to be decided by the jury because to do so would invade the province of the jury.” Nichols v. State, 177 Ga.App. 689 (1986) (Internal punctuation omitted). O.C.G.A. § 24-9-66: “Direct testimony as to market value is in the nature of opinion evidence. One need not be an expert or dealer in the article in question but may testify as to its value if he has had an opportunity for forming a correct opinion.” The owner of property is qualified to state his opinion as to value. Maddox v. State, 157 Ga.App. 696 (1981). |
New Code
§ 24-7-701: Lay opinion limited to opinions which are: 1. “Rationally based on the perception of the witness; 2. Helpful to a clear understanding of the witness’s testimony or the determination of a fact in issue; and 3. Not based on scientific, technical, or other specialized knowledge….” § 24-7-704: “…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.” § 24-7-701(b): “A witness need not be an expert or dealer in an article or property to testify as to its value if he or she has had an opportunity to form a reasoned opinion.” |
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Current Rule
O.C.G.A. § 24-9-67.1 adopted the Federal Rules of Evidence regarding expert witnesses for Georgia in 2005, but were only applicable to civil cases. O.C.G.A. § 24-9-67 retained the previous rules for expert witnesses in criminal matters. |
New Code
O.C.G.A.§ 24-7-702 will apply the Federal Rules of Evidence extend to both criminal and civil use of expert witnesses. |
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Current Rules
“Electronic computer messages are held to the same standards of authentication as other similar evidence. The admission of transcripts of internet chat sessions are akin to the admission of videotapes, which are ‘admissible where the operator of the machine which produced it, or one who personally witnessed the events recorded, testifies that the videotape accurately portrayed what the witness saw take place at the time the events occurred.’” Hammontree v. State, 283 Ga.App. 736 (2007) (Internal citations omitted). |
New Code
§ 24-8-801(g): A public record can be electronic; § 24-8-803(18): A learned treatise can be electronic; § 24-9-901(b)(5): Identification of a voice by electronic transmission can be used for identification; § 24-10-1001: “Writing” and “recording” include electronic records; “duplicate” includes electronic copy. “If data are stored in a computer or similar device, any printout or other output readable by sight, shown to reflect the data accurately, is an original.” § 24-10-1001(3). |