Verdict - Summer 2011 - (Page 28)

feature Welcome to the Federal Rules of Evidence: BY LESLIE J. BRYAN AND KIMBERLY J. JOHNSON, DOFFERMYRE SHIELDS CANFIELD & KNOWLES, LLC Georgia’s New Evidence Code absence of a timely objection.” (emphasis added). Under the new rule, “[h]earsay is not admissible except as provided in this article; provided, however, that if a party does not properly object to hearsay, the objection shall be deemed waived, and the hearsay evidence shall be legal evidence and admissible.” Although the new rule is not effective until 2013, counsel should use extra care in any “preservation of evidence” depositions taken to be used at a trial in 2013. opinion will be redacted. With the adoption of the federal rule model, opinions in business records will be admissible, provided the proper foundation is made. W ith thanks to Paul S. Milich, Professor o f L a w, G e o r g i a State University, who served as the Reporter to the Evidence Study Committee, State Bar of Georgia. Georgia has finally adopted, in large measure, an evidence code based on the Federal Rules of Evidence. The new Georgia Evidence Code becomes effective January 1, 2013. The Preamble provides that “[i]t is the intent of the General Assembly . . . to adopt the Federal Rules of Evidence, as interpreted by the Supreme Court of the United States and the United States circuit courts of appeal . . . to the extent that such interpretation is consistent with the Constitution of Georgia.” Where there are conflicts among the federal circuits, the interpretations of the United States Court of Appeals for the Eleventh Circuit are to be considered. In addition, for issues not covered by the Federal Rules of Evidence: the former provisions of Title 24 have been retained. Unless displaced by the particular provisions of this Act, the General Assembly intends that the substantive law of evidence in Georgia as it existed on December 31, 2012, be retained. This article provides a quick summary of some of the most significant changes resulting from Georgia’s modernization of its evidence code. Expert Witnesses The new rules preserve the distinction, not found in the Federal Rules, between experts in civil cases and experts in criminal cases. In Georgia, experts are subject to a Daubert analysis only in civil, and not in criminal, cases. Res Gestae Currently, “acts and circumstances forming a part or continuation of the main transaction are admissible as res gestae.” Under the new rules, there are exceptions to the hearsay exclusion for: • Present sense impression; • Excited utterances; and • Then-existing mental, emotional or physical condition. The rationale is that such statements have sufficient indicia of trustworthiness to be admissible, despite the fact that they technically constitute hearsay. Co-conspirator Statements Under both current Georgia law and under the Federal Rules, co-conspirator statements are not hearsay and therefore admissible. Current Georgia law, however, does not require that a co-conspirator’s statement have been made in furtherance of the conspiracy. The Federal Rules require a co-conspirator’s statement to have been made “in furtherance of the conspiracy” to be admissible. Settlement Negotiations The current Georgia rule makes a distinction between offers to settle and offers to compromise. The distinction will disappear with the new rules and, generally, nothing made as part of an effort to settle or compromise will be admissible. Admissions by an Agent Generally, current Georgia law limits admissions to those that were authorized by the principal. The new rule clarifies that, to qualify as an agent admission, (1) the statement must have been made during the course of the agency, and (2) the subject matter of the statement must fall within the scope of the agent’s duties. Prior Inconsistent Statements Under the current Georgia rule, to admit a prior inconsistent statement, it is necessary to show the statement to the witness and draw his or her attention to the time, place and circumstances when it was made. Under the federal rule: “in examining a witness Hearsay Under current Georgia law, “hearsay evidence is without probative value and will not establish fact in issue even in the 28 Georgia Trial Lawyers Association Business Records Currently, if a properly authenticated business record contains an opinion, the

Table of Contents for the Digital Edition of Verdict - Summer 2011

Let the Jurors Be Heard
A Rule Needing Limits: The “Right For Any Reason” Rule
Speaking Out of Turn: Ex Parte Interviews With Plaintiff’s Treating Physicians
GTLA 2011 President’s Gala: In Pictures
Legislative Relationships: The Key to Legislative Results
Welcome to the Federal Rules of Evidence: Georgia’s New Evidence Code
Judicial Spotlight: Reflections from the Bench
Book Review: The Fall of the House of Zeus
How I Obtained Justice for My Client: Cranford v. Ernest Homes
Technology Update: Securing Justice for Victims of Negligence? There’s an App for That!
Lessons from the Listserver: Is Defendant Driver History Permissible
Recent Updates in Workers’ Compensation
Welcome New GTLA Members!
Profile Listings

Verdict - Summer 2011