Home Georgia Hearsay
Hearsay-sos Graham firestone Admissions
Business Records
Explain Conduct
Excited Utterances
Show Notice or Knowledge
Impeaching Or Bolstering Once Attacked
Motive
Diagnosis & Medical Records
Credibility
Police Reports
Statements Against Interests
Necessity
Res Gestae
Other Exceptions
The reason behind the hearsay rule is that it would be unjust and misleading to consider these statements as reliable, unless the person who heard or witnessed them can be cross-examined at the hearing.
In most cases, hearsay is fairly easy to spot. Often it’s just second-hand information from someone who never directly saw it, or heard it.
The Test For Hearsay
(Hearsay Flow Chart)
Is it an out of court statement of a person? (or non-verbal conduct that was meant at the time to communicate something?)
YES?
NO
(continue)
(Stop; no hearsay issues)
Is one party offering the other side’s out of court statement?
YES?
NO
(Stop; it is an admission
(continue)
If heard directly by
the witness)
Is the person who made the out of court
statement at trial and available for cross examination?
YES?
NO
(Stop; no hearsay issues)
(continue)
Regardless of whether it's true or not, is the statement relevant to prove motive, notice, explain conduct, etc.?
Ex: Even if the boss was joking when he said "you're fired", it's not hearsay to
explain why the claimant walked off the job or had motive to kill him.
YES? NO
(Stop; has a non-hearsay use) (continue)
Is the statement being used to make an
inference that the speaker never intended to make at the time it was said?
For example: the hearsay statement "safety hats are for dummies" has a
non-hearsay use when used to show that all along the claimant knew he was required
to wear one.
YES? NO
(Stop; has a non-hearsay use) (continue)
Does the party offering the statement claim it demonstrates something relevant
about the speakers state of mind?
YES? NO
(continue) (Stop; the statement is hearsay)
If we assume the facts in the statement
are independently proven, would the fact that the speaker made the statement add
any relevance or merely be cumulative.
YES? NO
(Stop; has a non-hearsay use) (Stop; the statement is hearsay)
Example 1: The employer witness learned the following from the loss prevention manager, Tom Moneycatcher. Mr. Moneycatcher is not at the hearing to testify.
“Mr. Moneycatcher saw John go up to the cash register, type in his cash register code and then steal the money.”
Example 2: John told Sam that he was going to skip work and go fishing Friday. On Friday John misses work and is fired for poor attendance. At the hearing, Sam's manager tells the judge what he learned from Sam. Sam is not at the hearing.
In Example 1: The statement is probably being used to show that John in fact stole the money as he was seen doing so by the loss prevention manager. This is hearsay unless you can get the loss prevention manager to testify to what he himself saw, heard or observed.
In Example 2: The statement is probably being used to show John was absent without good cause, i.e. to go fishing. This too is hearsay unless Sam himself testifies.
Non-Hearsay: (When The Statement Is Used For Another Purpose Aside From What The Statement Itself Is Saying)
While out of court
statements are generally hearsay, they are not always so. Whether a statement
is or is not hearsay will often depend on why it’s being used.
For example: if the statement is being used to prove what the
statement itself says, it’s usually hearsay. However, if the statement is used
for another purpose, such as to make inferences about motive or other important facts, it
may be admissible.
Explain conduct, show notice, knowledge, motive, opportunity or ownership, or to attack a witness’ credibility.
For example: Say the claimant was fired for calling the manager an "Asshole". At the unemployment hearing, she admits she was angry at him, but says she quietly uttered the word to herself.
Three people complained to management when they overheard her. However, none of these witnesses testified at the hearing.
So Are Their Statements Hearsay?
Answer: It depends.
These statements are hearsay to prove she said the word "Asshole" (This is not an issue as she already admitted to it).
These statements are not hearsay when used to show it's not what she said but how loudly she said it. In other words, it's non-hearsay to show her motive or intent was for others to hear her. These statements may also be admitted as an excited utterance.
Hearsay Exceptions
Some statements would otherwise be hearsay but the law has carved out an exception for them.
Hearsay Exceptions Include:
Admissions, Excited Utterances, Statements Against Interest and the facts contained in Business Records. Other exceptions include impeachment and acts falling under the res gestae.
See Also
Statutes & Case Law
Back To Top
Chart Of Non-Hearsay and Hearsay Exceptions
(Each Topic May Include Examples,
Statutes and Case Law)
| Excited Utterances | |
| Credibility | |
| Statements Against Interests | Necessity |
| Res Gestae |
See Also
Statutes & Case Law
Back To Non Hearsay & Hearsay Exceptions
B. An Admission of the agent can be used against the Principle.
Example A:
In an employer appeal, the employer says at the hearing.
We fired the claimant for theft and at he admitted to us that he did it.” (The Claimant was not at the hearing to testify)
This is not hearsay so long as the testifying witness heard this directly from the claimant.
Of course, the hearing officer must in their discretion still weigh the evidence.
However it’s admissible regardless.
Example B: It’s time for the hearing. You have both parties on the phone but the employer’s corporate office says they never got the notice. The claimant then says, “Last week I called the employer’s attorney and he told me he misplaced the notice of hearing”
In this example, the admission of the attorney binds the employer. Put simply, the agent
for the employer is the mouthpiece for the employer. So what is said by the agent
can be used just as if it were said by the principal. This statement is also not hearsay
for another reason: It shows the employer had notice or knowledge of the hearing.
Again, the statement is not being used to show the attorney lost the notice.
Rather, it’s being used to show that he received the notice!!!!!)
Acquiescence or silence, when the circumstances require an answer, or a denial, or other conduct, it may amount to an admission. OCGA 24-3-36.
Statements that are otherwise hearsay can be used to show why someone behaved the way they did. I.E. why the claimant believed he was being fired, or why the employer began an investigation, etc.
Example 1: I never came back to work because John told me the president said I was fired. (The president is not at the hearing).
Example 2. We investigated the claimant when a customer saw him stealing money. (Witness says he learned of event through the customer and the customer is not at the hearing)
Note In Example 1 the statement would be hearsay if being used to show the president fired the claimant. But this statement is not hearsay when used to explain why the claimant never reported back to work. i.e. to show the claimant thought he was being fired and therefore had a good reason for never coming back.
In Example 2, the statement would be hearsay to show the claimant did in fact steal the money. However, it’s not hearsay when used to show why the employer began an investigation or set special rules which only the claimant had to follow.
See Also
Quits (Explaining Conduct)
Discharge (Explaining Conduct)
For example: “We fired/warned or began an investigation after the company president received customer complaints. “I know nothing of the events but for what the president told me, and he’s out of town right now.”
For example: Suppose the employer says the claimant quit while the claimant says he was discharged.
The claimant says, “I left the job and stopped reporting to work because my supervisor told me her boss said I was fired.”
The claimant's former boss is not at the hearing so the employer’s attorney exclaims OBJECTION HEARSAY!!!!!!!!
If, the statement is used to show that the claimant was in fact fired.
The Attorney is Not Correct
If the statement is used to explain the effect on the hearer, i.e. that given what was said to him, the claimant had a reasonable belief he was being fired.
Statements that are otherwise hearsay can be used to show that someone was warned, received notice or knew of the rule or danger.
Example: At the hearing the supervisor says as follows: When my manager talked to the claimant about wearing a safety hat, the claimant told him “Safety hats are for dummies.”
This statement is hearsay when used to show safety hats are really for dummies.
But this statement is not hearsay when used to prove the claimant knew of the safety hat rule but chose nevertheless to ignore it. Again, why the statement is being used is critical.
See Business Records (To Admit Facts or Warnings)
Statements that are otherwise hearsay can be used to show that someone had the motive to steal, start a fight, commit sabotage, etc.
Take the statement "Jones is a low down rotten scoundrel." If this is used to show the speaker had a motive to fight Jones then this would not be hearsay. But the statement is hearsay if it is being used solely to show that it’s true, i.e. that Jones is in fact a low down rotten scoundrel.
When the employer tries to enter it as an exhibit, the claimant's objection is sustained on hearsay grounds. The claimant then testifies that his ten tardies were due entirely to windstorms. The napkin offers a different story, and the employer wants to use it to question him.
At this point the employer may use the napkin to question him, even though what's on the napkin is clearly hearsay. And if the claimant stammers, averts his eyes, or makes partial admissions, this goes directly to his credibility.
See Cross Examining With Hearsay
Hearsay can always be used to show dishonesty.
“Tom saw John go up to the cash register type in his cash register code and then steal the money.”
Now suppose at the hearing, John testifies that He never went near money, and that handling money was never even part of his job duties.
In that case, this statement can be used for another purpose such as to show John had a cash register code and did in fact handle money. Thus, John is not too believable in anything he is saying.
the witness states:
“Tom saw John go up to the cash register, type in his cash register code and then
steal the money.”
The Claimant’s attorney shout’s OBJECTION! THIS IS HEARSAY AS THE WITNESS ONLY KNOWS THIS FROM TOM WHO IS NOT HERE TO TESTIFY!”
The Employer’s attorney then responds “
“WE’RE NOT USING THIS STATEMENT TO SHOW THAT John TOOK THE MONEY. HOWEVER WE ARE USING IT TO SHOW THAT JOHN IS LYING NOW WHEN HE SAID HE NEVER WENT NEAR MONEY. FROM TOM’S STATEMENT WE CAN INFER THAT IF John TYPED IN THE CASH REGISTER CODE THEN HE MUST HAVE BEEN IN REGULAR CONTACT WITH MONEY. THEREFORE HE IS NOT CREDIBLE NOW WHEN HE SAYS HE WAS NEVER IN CONTACT WITH MONEY.
Here the statement is being used to make an inference that the speaker never intended to make at the time it was uttered. Further it is being used to impeach the witness on their credibility
Thus, it is admissible to show John was in contact with money and is not credible when he says he was not. However, it is not admissible to directly prove that John stole the money, as that is exactly what the statement itself is asserting.
Example 2
John allegedly told Sam (who's not at the hearing) that he was going to skip work Friday and go fishing. That day John misses work and is fired for poor attendance. Given that Sam is not at the hearing to testify, this statement cannot be used to show what it says, i.e. that John missed work to go fishing.
But suppose at the hearing, John denies He ever knew Sam. In that case, Sam's statement could always be used to attack John’s credibility and show that John did know Sam.
An admission against interest is itself admissible. Key is whether the statement was said by someone party to the case. The statement must also have been against their interest at the time it was made.
For example:
Suppose in a discharge case you have a Wal-Mart supervisor testifying for the employer. At the hearing the supervisor is cross examined by the claimant’s lawyer and says, “Well, Barbara the HR manager said she was tired of the claimant being sick all the time and that it was time to fire her.” (Barbara the Manager is not at the hearing to testify).
This statement is against the employer’s interest in that as it goes directly against their case. Therefore it can be used at the hearing even though Barbara herself is not present.
Likewise, in a discharge for fighting case, statements from the employer that the claimant was not the aggressor in a fight, would also be a statement against interest, even if the person who said it was not at the hearing.
Back To Statutes and Case Law
Chart
of Hearsay Exceptions
New O.C.G.A. § 24-8-803(6)
provides:
The following shall not be excluded by the hearsay rule, even though the
declarant is available as a witness: ...
Records of regularly conducted activity.
Unless the source of information or the method or circumstances of preparation
indicate lack of
trustworthiness and subject to the provisions of Chapter 7 of this title, a
memorandum, report, record, or data compilation, 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, all as shown
by the testimony of the custodian or other qualified witness or by certification
that complies with paragraph (11) or (12) of Code Section 24-9-902 or by any
other statute permitting certification. The term 'business' as used in this
paragraph includes any business, institution, association, profession,
occupation, and calling of every kind, whether or not conducted for profit.
Public records and reports shall be admissible under paragraph (8) of this
Code section and shall not be admissible under this paragraph.
The new rule replaces pre-2013 O.C.G.A. § 24-3-14. Three major changes:
(1) The new rule allows properly qualified statements of opinion, including
medical diagnoses, in the record;
(2) The rule allows the proponent to use a certification in lieu of a live
witness
to lay foundation; and
(3) The trial judge has discretion to reject business records when the sources
of information or methods of preparation indicate a lack of trustworthiness.
Foundation
(1) The record is of the type routinely made in the regular course of the
business;
(2) The record was kept in the ordinary course of business;
(3) The record was made at or near the time of the occurrences set forth in the
record;
(4) The record was based on sources who were acting in the regular course of
the business in making the report; and
(5) the sources were basing their reporting on their personal knowledge.
The new rule allows opinions, including medical diagnoses, in the record.
Opinions
in a business record still must satisfy the rules governing lay and expert
opinions.
This is a rule 104(a) determination by the trial court. Thus the court may
consider
any nonprivileged evidence, including hearsay, in determining whether, by a
preponderance of the evidence, the conditions of the rule are met.
For example, if a Georgia medical record appeared to be signed by Dr. Danny
Uggla
and a party raised an objection that it was not proved that Dr. Uggla was a
licensed
physician, the court could simply look up Dr. Uggla on the Georgia Composite
Medical Board website and confirm that he had an active license to practice
medicine
in Georgia. Opinions may be excluded if the trial court finds that “the source
of information or
the method or circumstances of preparation indicate lack of trustworthiness.”
The new Georgia rule expressly states that public records and reports shall not
be
admissible under the business record exception.
When nonpublic records are offered against the accused in a criminal case
they are
typically nontestimonial under the Confrontation Clause, though if the report is
prepared at the request of law enforcement in the course of prosecution of a
specific
defendant, as for example the report of a private drug testing lab, it is
testimonial.
Melendez-Diaz v. Massachusetts, 557 U.S. 305, 129 S.Ct. 2527, 2538, 2540 (2009).
“It is significant, and essential to admissibility under this exception, that
the record
be the product of a “regular practice” of the business, in the “usual course” of
that
business.” U.S. v. Jacoby , 955 F.2d 1527 (11th Cir. 1992). A report
prepared for
litigation is inadmissible.U.S. v. Arias-Izquierdo 449 F.3d 1168, 1183-84 (11th
Cir. 2006).
Foundation by Certification
New O.C.G.A. § 24-9-902(11) and (12) describe the contents of and procedure
for
using a certification in lieu of a live witness to lay foundation for the
business record
exception. A party intending to offer a record into evidence by way of
certification
must provide written notice of such intention to all adverse parties and make
the
underlying record and certification available for inspection sufficiently in
advance of
their offer into evidence to provide an adverse party with a fair opportunity to
challenge the record and certification. Only private records, not public
records, may
be qualified under this rule.
Examples of Possible Business Records
Phone Logs, Warning Letters, Time Sheets, Dishonored Checks…
Computer business records
Are admissible if:
(1) They are kept pursuant to a routine procedure designed to assure their accuracy.
(2) They are created for motives that tend to assure accuracy (e.g., not including those prepared for litigation),
(3) They are not themselves mere accumulations of hearsay." United States v. Sanders 749 F.2d 195, 198 (5th Cir. 1984).
(4) The person submitting them knows how they were maintained or prepared.
But cf.
Standard Building Co., v. Wallen Concept Glazing, 680 SE 2d 527 (2009)
(citing Matson v. Noble Investment Group, 288 Ga. App. 650, 656(2), 655 S.E.2d
275 (2007). (uncertified copies of computer printouts from a Secretary of
State's website are not admissible as evidence unless authenticated.) "To be
admissible, such records must, at a minimum, contain a certificate or
attestation of a public officer." Id.; OCGA § 24-7-20.
Note that documents under the
business records exception are normally inadmissible if they are
prepared in anticipation of the hearing (such as a DFCS report on an alleged
case of deprivation). However, public records
under this exception are admissible even if they are prepared in anticipation of
litigation so long as the public authority has no stake or role in the
controversy. Paul S. Milich, Courtroom Handbook on Georgia Evidence,
p. 51.
Any business record admitted may not contain
statements that are opinions or conclusions.
These issues raise the possibility that parts of your case file may be
admissible in court while other parts are not. Portions of a document containing
opinion statements may have to be blacked out before the document is submitted
to the court. However, if these private citizen comments are made by parties to
the proceeding, then they might come in anyway under the Admissions exception.
Depending on what is being introduced at trial from your case file, the item
might be admissible under this exception. Milich, §19.19. See
Facts vs. Opinions
See also
Police Reports
See also Diagrams & Maps
See also
Public Safety Records Exception
Back To Business Records
Facts (Examples)
The claimant was late or absent on x dates.
The claimant received two warnings and was put on probation.
The claimant did not punch in his time card on July 5th.
The claimant screamed.
Opinions
(Examples)
The claimant was insubordinate, rude, indifferent, etc.
The claimant didn’t do the job right. (underlying facts admissible)
The claimant was negligent (underlying facts admissible)
The claimant was unable to do the job (may be allowed as an admission against the employer’s interest if used in a poor performance case regarding the claimant’s inability)
The claimant was trying to…(escape, elude pursuit, etc)
Probably Opinion (Examples)
The claimant was loud.
The claimant raised his voice (but arguably could also be a fact)
Back To Statutes and Case Law
Chart
of Hearsay Exceptions
Admission of Business Records
By Those Receiving Them (See More
Exceptions)
Sometimes, the receiver of business records is allowed to attest whether such
were made in the ordinary course of business.
The basic requirements for the admission of
integrated records are
(1) a business relationship between the business that initially made the record
and
the one who received it,
(2) the recipient business routinely relies upon the accuracy of the record and
integrates it into its own files,
(3) the recipient business has a witness who is sufficiently familiar with how
the
originating business routinely prepares the record to lay foundation under the
business record exception, and
(4) circumstances support the trustworthiness of the record.
See, e.g., Tubbs v. State , 283 Ga. App. 578, 642 S.E.2d 205 (2007) (a GBI
custodian
of records laid foundation for a copy of a fingerprint card that was originally
made
and kept by a local law enforcement agency with a copy sent to the GBI. The GBI
witness knew how such cards are made and kept in the ordinary course of the
local
agency's business, and that the copies are transmitted to and relied upon by the
GBI
in the ordinary course of its business).
What makes the integrated records rule work is that the trial court may
consider any
nonprivileged evidence, including hearsay, in deciding whether the foundation
for
the business record exception has been satisfied.
U.S. v. Franco, 874 F.2d 1136, 1139 (7th Cir. 1989) (“It is within the trial
court's discretion to determine whether a proper
foundation was laid for application of the business records exception to a
particular
document and whether the circumstances of the document's preparation indicate
trustworthiness. When making preliminary factual inquiries about the
admissibility
of evidence under a hearsay exception, the district court must base its findings
on the
preponderance of the evidence. That evidence, however, may include hearsay and
other evidence normally inadmissible at trial.”)
Up until recently, these types of
records were rarely admitted unless the two businesses had a symbiotic
relationship and operated as one in regard to those records.
Paul S. Milich, Courtroom Handbook on Georgia Evidence,
p. 444.
But
2007 case law may have made it easier to admit such
records. For example, in
Ishak v. First Flag Bank, 283 Ga. App. 517, 642
S.E. 2d 143 (2007), a loan summary could be introduced by an officer who did not
prepare it. While in
Walter R. Thomas Assocs., Inc. v. Media Dynamite, Inc.,
284 Ga. App. 413, 643 S.E.2d. 883 (2007), invoices from a third party vendor
were treated as the recipient's business records.
In two other cases, the court allowed a lender to introduce loan records even
though such were from predecessor lenders. See
Boyd v. Calvary
Portfolio Services, Inc., 285 Ga. App. 390, 646 S.E.2d 496 (2007); and
Jenkins v. Sallie Mae, Inc., 286 Ga. App. 502, 649 S.E.2d. 802 (2007).
Other Recent Cases include
Ross v. State, 298 Ga. App. 525, 680 S.E.2d 435 (2009) (business records
exception applied to certified copies of checks dishonored by other banks, when
manager from recipient bank established that the bank received, relied upon, and
retained the checks in the regular course of its business.);
Hamilton v. State, 676 S.E.2d 773 (2009) (The business records exception
does not require that the person laying the foundation for the admission of
business records be the custodian of the records. Instead, it requires only that
the record offered to prove an act or transaction be made in the regular course
of business and that it is the regular course of business to make the record at
the time of the act or transaction. The witness's lack of personal knowledge
regarding how the records were created does not render them inadmissible, but
merely affects the weight given to the evidence.)
But cf.
Standard Building Co., v. Wallen Concept Glazing, 680 SE 2d 527 (2009)
(citing
Matson v. Noble Investment Group, 288 Ga. App. 650, 656(2), 655 S.E.2d
275 (2007). (uncertified copies of computer printouts from a Secretary of
State's website are not admissible as evidence unless authenticated.) "To be
admissible, such records must, at a minimum, contain a certificate or
attestation of a public officer." Id.; OCGA § 24-7-20.
See Older Cases Below
See
Wheat Enterprises, Inc. v. Redi-Floors, Inc.,231 Ga.App. 853,
501 S.E.2d 30 (1998) (General contractor qualified to lay foundation for work
slips from subcontractors, because although independent businesses, they both
worked for and submitted documents to the general contractor and followed the
procedures and record keeping of the general contractor);
Robertson v. State,
210 Ga.App. 834, 437 S.E.2d 816 (1993) (Housing Authority witness could lay
foundation for Department of Labor wage records where Authority had contract
with Department to provide the records).
In most cases, the recipient has no idea if the record was
made at or near the time of the event, or if such were made in the ordinary
course of the business. Mere speculation is not enough. The recipient must
have at least enough personal knowledge of the operations of the sending firm to
lay foundation that the sending firm routinely makes the records at or near the
time the recorded event took place.
Thus, it's doubtful the recipient
of phone records could admit them as a business record, without a qualifying
witness from the phone company. See
U.B. Vehicle Leasing, Inc. v. Vision Int'l, Inc., 224 Ga.App.
611, 481 S.E.2d 597 (1997) (witness who received record from business had no
personal knowledge of that business' record keeping and thus could not lay
foundation for business record exception).
Exceptions To The Rule (Bad Law With No Good Rationale)
See
Childs v. Logan Motor Co., 103 Ga.App.
633, 120 S.E.2d 138 (1961) (Car dealer allowed to admit as a business record the
"Manufacturer's Statement of Origin" that was sent to him by the document's
preparer); Jackson v State, 209 Ga.App. 217, 433 S.E.2d 655 (1993)
(Purchaser of a mortgage could lay foundation for the business records of the
original mortgager).
Back To Statutes and Case Law
Chart
of Hearsay Exceptions
|
Res Gestae (See Three New Rules) |
|
Back To Statutes and Case Law
Chart
of Hearsay Exceptions
Employer’s database was not hearsay because it is their own record, it is inconsistent with their defenses on a variety of issues, and it advances the plaintiff's claims on a variety of issues. As such, it is an "admission" as well as an "admission against interest." Crosby v. Cooper Tire &c. Co., 240 Ga. App. 857, 867 (8), 524 SE2d 313 (1999), rev’d on other grounds, Cooper Tire &c. Co. v. Crosby, 273 Ga. 454 (543 SE2d 21) (2001).
Admissions by Agents
(see p.68 below)
New O.C.G.A. § 24-8-801(d)(2)(D) defines an agent admission as:
A statement by the party's agent or employee, but not including any agent of
the state in a criminal proceeding, concerning a matter within the scope of the
agency or employment, made during the existence of the relationship.
The new rule sets forth two simple requirements for an agency or employee
admission: (1) the statement was made during the agency or employment
relationship; and, (2) the subject matter of the statement concerns a matter the
agent or employee would know about by virtue of his agent or employee duties.
The definitions of “agent” and “employee” follow the common law meanings of
those
terms. U.S. v. Bonds, 608 F.3d 495, 504-05 (9th Cir. 2010) (finding that Barry
Bonds’
trainer was not his agent or employee for purposes of rule 801(d)(2)(D), an
independent contractor is not generally an “agent” or “employee” though the
contractor may act as an agent in specific circumstances)
Pre 2013 Cases
(Before new laws)
Admissions by an agent or attorney in fact, during the existence and in
pursuance of his agency, shall be admissible against the principal.
See also Watson
v. Kroger Co.,
231 Ga. App. 741, 742-743 (1) (500 SE2d 631) (1998) (agent’s out-of-court
statement is admissible against the principal as an exception to the rule
against hearsay.”)
Cooper Tire's adjustment records are not hearsay but were admissions against interest of a corporation made through its agents and produced by such corporation through discovery. ." Crosby v. Cooper Tire &c. Co., 240 Ga. App. 857, 867 (8), 524 SE2d 313 (1999), rev’d on other grounds, Cooper Tire &c. Co. v. Crosby, 273 Ga. 454 (543 SE2d 21) (2001). See Gorlin v. Halpern, 184 Ga. App. 10, 15 (5) (360 SE2d 729) (1987), rev'd on other grounds, Burgess v. Gorlin, 258 Ga. 127 (365 SE2d 405) (1988). An admission against interest by a party is original evidence and is admissible as evidence as to the issue of liability. Cannon v. Rithmire, 156 Ga. App. 360, 361-362 (2) (274 SE2d 746) (1980).
Back To Statutes and Case Law
Chart
of Hearsay Exceptions
Admissions
by Privies O.C.G.A. §
24-3-32.
Admissions by privies in
blood, privies in
estate, and privies in
law shall be admissible as against the parties themselves. However,
declarations by privies in estate after the title shall have passed out of them
shall not be received.
Admissions by Real
Parties in Interest O.C.G.A. § 24-3-34.
Admissions by a real party in interest shall be admissible, even if he is not of
record, subject to the exceptions stated in Code Section
24-3-31.
Back To Statutes and Case Law
Chart
of Hearsay Exceptions
O.C.G.A. §
24-3-2 ,
When, in a legal investigation, information, conversations, letters and replies,
and similar evidence are facts to explain
conduct and ascertain motives, they
shall be admitted in evidence not as hearsay but as original evidence. See
also Mincey v. State, 251 Ga. 255 (12), 304 S.E.2d 882 (1983).
“When . . . the conduct and motives of the actor are matters concerning which the truth must be found (i.e., are relevant to the issues on trial), then information, conversations, letters and replies, and similar evidence known to the actor are admissible to explain the actor’s conduct.” (Citations omitted.) Momon v. State, 249 Ga. 865, 867 (294 SE2d 482) (1982).
Hearsay statement admissible to explain why declarant decided to not challenge the zoning. Clark County v. Watson, 255 Ga. App. 1 (2002) (Need SE2d Citation)
However, but where the conduct and motives of the actor are not matters concerning which the truth must be found, then the information, etc., on which he or she acted shall not be admissible under OCGA § 24-3-2. Thompson v. State, 201 Ga. App. 646, 648 (3) (411 SE2d 886) (1991).
In DUI case on whether roadblock was lawful, hearsay statements of the roadblock’s purpose could not be used to show the roadblock’s purpose was lawful. However such could be used to explain why the officer made the stop and arrest if such was placed at issue. Baker v. State. 252 Ga. App. 695, 556 SE2d 892). (2001).
Pursuant to OCGA § 24-3-2, when the conduct and motives of an actor are relevant to the issues to be tried, then information, conversations, letters and replies . . . are admissible to explain the actor’s conduct.” Such evidence is admissible as original evidence and is not hearsay. Powell v. Alan Young Homes, 251 Ga. App. 72 (can’t find SE2 citation (statements of deceased husband not hearsay for above purposes) (citing Slakman v. State, 272 Ga. 662, 667 (3) (a), 533 SE2d 383 (2000) and Lloyd v. Tyson, 195 Ga. App. 48, 49 (2) (392 SE2d 551) (1990)).
Hearsay testimony is admissible to explain the conduct of an actor where the actor’s conduct and motive are matters concerning which the truth must be found. In Teague v. State, 252 Ga. 534, 536 (314 SE2d 910) (1984), this Court further expounded upon the principle discussed in Momon and held that only in rare instances will the conduct of an investigating officer need to be explained, reasoning that: in practically every case, the motive, intent, or state of mind of such an officer will not be “matters concerning which the truth must be found.”
(Hearsay testimony was admitted to explain the conduct of a sheriff in employing additional security measures to detain defendant at trial as well as to rebut evidence of defendant’s good behavior in prison); compare George v. State, 242 Ga. App. 580 (3) (530 SE2d 479) (2000) (hearsay testimony was admitted to explain the conduct of a police officer in arresting a suspect for DUI where the defendant asserted the officer fabricated the DUI charge in retaliation for not pursuing felony charges against another suspect earlier in the day).
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In lawsuit for failure to disclose asbestos, letter to buyers informing them boiler contained asbestos was not hearsay. Letter was used not to prove boiler had asbestos but rather to show they were told of boiler’s condition. Salinas v. Skelton,249 Ga. App. 217, 547 S.E. 2d 289 (2001).
This is because "[as a fundamental rule, the definition of hearsay does not include out of court statements which are not offered as proof of the facts asserted in such statement, but are offered merely as proof that such a statement was made." Quiktrip Corp. v. Childs, 220 Ga. App. 463, 466 (3) (469 SE2d 763) (1996) (quoting Green, Ga. Law of Evidence (4th ed.), Hearsay, § 218.)
In this case, the issue is not whether the letter's author was telling the truth when he informed Skelton and Creel about the presence of asbestos, but whether the author's statement provided those defendants with knowledge that there was asbestos on the boiler. Salinas v. Skelton,249 Ga. App. 217, 547 S.E. 2d 289 (2001). Thus, although the letter was inadmissible to prove that there actually was asbestos on the boiler, it was admissible evidence of both Skelton's and Creel's knowledge of the toxic substance. Id.
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O.C.G.A. § 24-3-4.
Medical Diagnosis or Treatment
(See Medical Narratives)
Statements made for
purposes of medical diagnosis or treatment
and describing medical
history, or past or present symptoms, pain, or sensations,
or the inception or general character of the cause or external source thereof
insofar as reasonably pertinent to diagnosis or treatment
shall be admissible in
evidence.
This exception is based on the notion that people will speak truthfully and as accurately as possible when giving statements to health care professionals regarding their diagnosis or treatment. Paul S. Milich, Courtroom Handbook on Georgia Evidence, p. 377.
3 Things To Note About This Hearsay Exception
The history a patient gives to a psychologist, nurse, pediatrician, or emergency room physician during examination or treatment has been held admissible under this exception to the hearsay rule. Likewise, the same rule is applicable when such information is given to a licensed professional counselor. Allen v. State, (247 Ga. App. 10, 543 SE2d 45 (2000), a paramedic or to anyone the speaker reasonably believes will take medical action based on the statement or relay the information to someone who will. Banks v. State, 144 Ga.App. 471, 241 S.E.2d 587 (1978). If the statements are pertinent to diagnosis or treatment of the patient's condition, they are admissible, even if given to a physician who was seen only so he could testify at trial. See Southern Railway v. Lawson, 256 Ga. 798, 353 S.E.2d 491 (1987).
Application Of Case Law
Thus, certified copies of the plaintiff's medical records could be used to
contradict her testimony that she never had prior back, neck, or leg pain.
Barone v. Law,
242 Ga. App. 102, 103, 527 S.E.2d 898, 899 (2000).
The court first noted that plaintiff's statements
to her medical providers were not hearsay because they were made for purposes of
medical diagnosis for treatment and described her medical history.
Id. at 104, 527 S.E.2d at 900.
Because plaintiff's statements were not hearsay, they were admissible pursuant
to O.C.G.A. section 24-9-82, which provides that a "witness may be impeached
by disproving the facts testified to by him.'"Id. at
105.
In addition, citing Gibbons v. State,
the court noted that the statements may have been admissible as prior
inconsistent statements. 248 Ga. 858, 286 S.E.2d 717 (1982). Gibbons
and Cuzzort are used almost exclusively in criminal cases. It is
rare for a court to cite either in a civil case. See 242 Ga. App. at 105,
527 S.E.2d at 901.
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O.C.G.A. § 24-3-5.
Conspiracy
After the fact of conspiracy is proved, the declarations by any one of the
conspirators during the pendency of the criminal project shall be admissible
against all. See hearsay exception for statements made by
Co-Conspirators.
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O.C.G.A. § 24-3-6.
Imminent Death
Declarations by any person in the article of death, who is conscious of his
condition, as to the cause of his death and the person who killed him, shall be
admissible in evidence in a prosecution for the homicide.
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O.C.G.A. § 24-3-7. Title
(a) Declarations by a person in possession of property in disparagement of his
own title shall be admissible in evidence in favor of anyone and against privies
of the declarant. (b) Declarations by a person in favor of his own title shall
be admissible to prove his adverse possession.
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O.C.G.A. § 24-3-8. Against Interest
Declarations and entries made by a person since deceased against his interest
and not made with a view to pending litigation shall be admissible in evidence
in any case.
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O.C.G.A. § 24-3-9. Ancient Rights
Declarations of deceased persons as to ancient rights made before the litigation
arose shall be admissible to prove matters of public interest in which the whole
community is supposed to take interest and to have knowledge.
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O.C.G.A. § 24-3-10. Prior Oath
The testimony of a
witness since deceased, disqualified,
or inaccessible for
any cause which was given under oath on a former trial upon substantially the
same issue and between substantially the same parties may be proved by anyone
who heard it and who professes to remember the substance of the entire testimony
as to the particular matter about which he testifies.
Pope v. Fields, 273 Ga. 6, 536 SE2d 740 (2000).(deposition testimony from related case was admissible when the issues were substantially similar, the unavailable witness was questioned by both attorneys and the party whom the evidence was offered against was the same in both cases). Substantial similarity is needed so there’s adequate incentive to cross on same issues.
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Sworn Testimony From Prior Proceeding
First, testimony from a prior proceeding is generally not admissible unless the
witness is unavailable to testify in the subsequent proceeding. Here,
there was no showing of unavailability.
IN RE BILLY L. SPRUELL
227 Ga. App. 324, 326, 489 S.E.2d
48, 50 (1997). Second, prior testimony is generally admissible only if the
party against whom the testimony is being offered had an opportunity to
cross-examine the witness at the prior proceeding. Id.
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O.C.G.A. § 24-3-11.
Ancient Documents
Ancient documents purporting to be a part of the transaction to which they
relate shall be admissible in evidence.
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O.C.G.A. § 24-3-12. Pedigree
Pedigree, including descent, relationship, birth, marriage, and death, may be
proved by the declarations of deceased persons related by blood or marriage, by
general repute in the family, or by genealogies, inscriptions, 'family trees,'
and similar evidence.
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O.C.G.A. § 24-3-13. Ancient Boundaries
Traditional evidence as to ancient boundaries and landmarks shall be admissible
in evidence, the weight to be determined by the jury according to the source
from which it comes.
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O.C.G.A. § 24-3-14.
Business Records
(a) As used in this Code section,
the term 'business' shall include every kind of business, profession,
occupation, calling, or operation of institutions, whether carried on for profit
or not.
(b)
Any writing or
record, whether in the form of an
entry in a book or otherwise, made as a memorandum or record
of any act, transaction,
occurrence, or event
shall be admissible in
evidence in proof of the act,
transaction, occurrence, or event,
if the trial judge shall find
that
it was made in the regular course of any business
and
that it was the
regular course of such business to make the
memorandum or
record
at the time of the act, transaction,
occurrence, or event
or within a reasonable time thereafter.
(c) All other circumstances of the
making of the writing or record, including lack of personal knowledge by the
entrant or maker, may be shown to affect its weight; but they shall not affect
its admissibility.
(d) This Code section shall be liberally interpreted and applied.
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of Hearsay Exceptions
Testimony such as the declarant appeared nervous and upset, combined with a reasonable basis for emotional upset, will usually suffice for admission under the excited utterance exception.” Walthour v. State, 269 Ga. 396, 397 (2) (497 SE2d 799) (1998).
Excited utterances are included in the codified
res gestae
exception. In order to constitute an excited utterance,
“an
event precipitating the statement must have been sufficiently startling to
render inoperative the declarant's normal reflective thought processes, and the
declarant's statement must have been the result of a spontaneous reaction, and
not the result of reflective thought.”
.
Cox citing (Walthour
v. State,
269 Ga. 396, 397 (2) (497 SE2d 799) (1998).
Thus, “The words spoken to the witnesses by the victim’s three-year-old child at the scene immediately after the offense occurred were properly allowed as part of the res gestae as they were spontaneous and voluntary.” Id.
Victim’s telephone statement to ex-girlfriend, during the same month as the homicide, that defendant had just pushed him or knocked the phone out of his hand was admissible under res gestae exception. Smith v. State, 231 Ga. App. 677, 680 (2) (a) (499 SE2d 663) (1998).
Child’s statement to
police that” My Daddy killed my mommy” was admissible as an excited utterance.
Cox v. State,
274 Ga. 204, 206 (553 SE2d 152) (2001).These
words were spoken to the witnesses by the victim’s three-year-old child at
the scene immediately after the offense occurred were properly allowed as part
of the res gestae as they were spontaneous and voluntary.
Id.
"Declarations accompanying an act, or so nearly connected therewith in time as
to be free from all suspicion of device or afterthought, shall be admissible in
evidence as part of the
res gestae." OCGA § 24-3-3.
.
Cox v. State,
274 Ga. 204, 206 (553 SE2d 152) (2001).
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Impeaching a Witness or Bolstering Testimony Once Attacked
Prior Inconsistent Statements Admissible To Impeach Testimony (Consumer-SOS)
May Bolster A Witness With Prior Consistent Statements Only if Their Credibility Has First Been Attacked (Consumer-SOS)
See also credibility
See Changes to Hearsay Rules Effective 2013
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Cross Examining With Hearsay
It is often necessary on cross examination to ask a witness if a particular fact
is true when that fact has not been admitted to the record. Sometimes the fact
was not admitted because it is hearsay. However, a witness can be cross
examined on hearsay if you have a good faith belief the facts are true
and you believe the witness has personal knowledge of these facts. And once the
witness admits to these facts, they are
Admissions and
considered valid evidence. See Paul S. Milich, Courtroom Handbook on Georgia Evidence,
p. 132.
The cross examiner does not have to have admissible evidence in hand to support his good faith basis for the questioning. Medlock v. State, 264 Ga. 697, 449 S.E.2d 596 (1994). However, opponents can demand a showing for the good faith basis of the question. To show good faith, the cross examiner would need to explain 1) why he believes the facts asserted in his questions are true, and 2) How this witness can confirm the facts. See Walker v. State, 214 Ga.App. 777, 449 S.E.2d 322 (1994)(NCIC) reports are a "reliable basis).
(Thus, statements made to the
claim's examiner should be permitted on cross when the AHO has a good faith
believe they could be true and the claimant would have personal knowledge of
them). Likewise, a CEO should be able to question the claimant on his
attendance, even if the questions came from what his former supervisor wrote on
a napkin).
However, questions based merely on rumor or conjecture should be stricken from
the record. Likewise, it is improper to ask a question that the witness would
have no way of confirming. Paul S. Milich, Courtroom Handbook on Georgia Evidence,
p. 132.
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Prior Inconsistent Statements Admissible To Impeach Testimony
(For the hearing officer it means you can impeach a dishonest party with any of their statements found in the file, i.e.. Information from Claims examiner fact finding, employer separation information, the appeal, and other correspondence or documents.)
Because defendant’s sister denied making comments about defendant’s prowling during his trial, the prosecution could introduce her prior statement overheard by victim “"I done told him about prowling." Brown v. State, 242 Ga. App. 858, 531 SE2d 409). (2000). See also Lathan v. State, 241 Ga. App. 750, 526 SE2d 350 (2000).
May Impeach Own
Witness With Prior Inconsistent Statement
A prior inconsistent statement of
a witness who takes the stand and is subject to cross-examination is admissible
both to impeach the witness and as substantive evidence. Spann v. State,
248 Ga.App. 419, 546 S.E.2d 368 (2001)
There
are three requirements for impeaching a witness with a prior inconsistent
statement: first, the prior statement must contradict or be inconsistent with
the witness's in-court testimony; second, the prior statement must be relevant
to the case; and, third, the examining attorney must lay the proper foundation
with the witness. Spann v.
State, 248 Ga.App. 419, 546 S.E.2d 368 (2001). See also
Vaughns v. State, 274 Ga. 13, 89, 549 S.E.2d 86 (2001) (“‘The prior inconsistent
statement of a witness is admissible as substantive evidence if the witness
testifies at trial and is subject to cross-examination’”) (citations omitted);
Wilson v. State, 258 Ga. App. 166, 573 S.E.2d 432 (2002). Sinkfield v.
State, 201 Ga. App. 284, 287, 411 S.E.2d 68 (1991), vacated in part as to
sentence 204 Ga.App. 781, 420 S.E.2d 824 (1992).
A party may impeach its own witness through the use of a prior
inconsistent statement and a prior inconsistent statement is admissible as
substantive evidence when the maker of the statement takes the stand and is
subject to cross-examination. See Gibbons v. State, 248 Ga. 858, 862, 286
S.E.2d 717 (1982); In Re CF, 255 Ga. App. 620, 566 S.E.2d 387 (2002).
Further, it is unnecessary to show entrapment or surprise when a party is
impeaching its own witness. Ranger v. State, 249 Ga. 315, 317, 290 S.E.2d
63 (1982).
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Prior Consistent Statements Are
Admissible Only If the Witness’ Credibility Has First Been Attacked.
Prior consistent statements that would
otherwise be inadmissible hearsay are not hearsay and are admissible to rebut
allegations of recent fabrication. Woodard v. State, 269 Ga. 317, 320
(496 SE2d 896) (1998).
A witness's prior
consistent out-of-court statement is admissible over a hearsay objection where
"(1) the veracity of a witness's trial testimony has been placed in issue at
trial; (2) the witness is present at trial; and (3) the witness is available for
cross-examination." Woodard v. State, 269 Ga. 317, 320 (2),496
SE2d 896 (1998). A witness's "veracity" is placed in
issue "if affirmative charges of recent fabrication, improper
influence, or improper motive are raised during cross-examination."
Id.
In Georgia, a prior out of court statement by a witness who will testify at trial is admissible because the declarant will be available to be cross-examined about this statement. Carpets 'n Colors, v. Hollycraft carpets, 177 Ga. App. 534, 339 SE2d 793 (1986).
Witness may use his own prior consistent statements to bolster his testimony only if he has been impeached and the prior consistent statement rebuts that impeachment. Ellison v. State, 216 Ga.App. 639, 455 S.E.2d 361 (1995).
Where the veracity of a witness is at issue, and that witness is present at trial, under oath, and subject to cross-examination, the prior consistent out-of-court statement of the witness is admissible as substantive evidence and is not subject to hearsay or impermissible bolstering objections. Cuzzort v. State, 254 Ga. 745, 334 S.E.2d 661 (1985)
When the credibility and veracity of a witness, who is under oath and subject to cross-examination, is under express or implied attack, the State may show that the witness has made prior consistent statements, and such statements are admissible as substantive evidence. McGee v. State, 205 Ga. App. 722, 727, 423 S.E.2d 666 (1992).
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Prior Consistent Statement Inadmissible Where Veracity of Witness Not Challenged
Unless a witness's veracity has affirmatively been placed in issue, the witness's prior consistent statement is pure hearsay evidence, which cannot be admitted merely to
corroborate the witness, or to bolster the witness's credibility in the eyes of the jury. In this case, the witness’s veracity was not questioned. Consequently, any prior statements
consistent with her testimony were not admissible, and the trial court did not err in refusing to admit the circumstances surrounding any such statements. Miller v. State, 275 Ga. 32, 561 S.E.2d 810 (2002).
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Necessity Exception (As of Jan 1, 2013, party must give written notice if it is to rely on such to introduce hearsay)
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of Hearsay Exceptions
Hearsay evidence is admitted only in specified cases from necessity. OCGA 24-3-1 (b).
In order for a party to introduce an out-of-court statement under the necessity exception to the hearsay rule, (1) the declarant must be dead or unavailable, (2) there must be particular guarantees of trustworthiness, (3) the statement must be relevant to a material fact, and (4) the statement must be more probative on that material fact than other evidence that may be procured and offered. Williams v. State, S04A0071 (May 24, 2004 (GA Supreme Court citing Clark v. State, 271 Ga. 6 (5) (515 SE2d 155) (1999).
To satisfy the first prong of the necessity exception with respect to a live declarant, the party seeking to admit the statement must show that he made a reasonable effort to find the declarant. “It is within the sound discretion of the trial court to determine . . . a party’s diligence in searching for [a] witness,” Battle v. State, 244 Ga. App. 771, 774 (536 SE2d 761) (2000).
One of the determinative factors in the admissibility of evidence under the necessity exception is whether the party offering the evidence has made a reasonable effort to locate the hearsay declarant and to ensure his presence at trial. This is a strict standard. Holmes v. State, 271 Ga. 138, 139 (2) (516 SE2d 61) (1999). In applying that standard, “[i]t is within the sound discretion of the trial court to determine the unavailability of a witness and a party’s diligence in searching for that witness. [Cit.]” Battle v. State, 244 Ga. App. 771, 774 (536 SE2d 761) (2000).
There are three prerequisites for admission of hearsay because of necessity: (1) necessity, (2) particularized guarantees of trustworthiness, and (3) the evidence must be relevant to a material fact and more probative on that material fact than other evidence that may be procured or offered. Holmes v. State, 271 Ga. 138-139 (2) (516 SE2d 61) (1999).
Not error to admit hearsay under the necessity exception that the murder victim had stated that she was “scared for her life” hours before she was killed by her boyfriend). Carruthers v. State, 272 Ga. 306, 314 (7) (528 SE2d 217) (2000); Ward v. State, 271 Ga. 648 (2) (520 SE2d 205) (1999).
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Compare Battle v. State, 244 Ga. App. 771, 774 (536 SE2d 761) (2000). (witness was deemed unavailable where State spent six months trying to find her, including making seven or eight trips to her last known address and contacting authorities in jurisdiction where she had moved to “have her forcibly returned to testify”); Lane v. Tift County Hosp. Auth., 228 Ga. App. 554, 561 (2) (492 SE2d 317) (1997) (“When a witness cannot be found after diligent search because [he is] hiding to avoid testifying, necessity has been shown. [Cit.]”).
It is well-settled that a witness is unavailable if the witness is dead or has invoked a privilege. Holmes v. State, 271 Ga. at 139; Quijano v. State, 271 Ga. 181, 187 (516 SE2d 81) (1999); Clark v. State, 271 Ga. 6, 10 (515 SE2d 155) (1999). Where essential witness to the incident was unavailable to testify due to her assertion of marital privilege. See Higgs v. State, 256 Ga. 606, 608 (4) (351 SE2d 448) (1987); Downs v. State, 524 SE2d 786). (1999).
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Necessity
Cases Where Unavailability Was Not Shown
Rosser v. State, 211 Ga. App. 402, 405 (1) (439 SE2d 72) (1993) (reversing trial court’s determination that witness was unavailable where State spent only four and one-half hours searching for her), disapproved on other grounds, Livingston v. State, 268 Ga. 205, 209 (1) (486 SE2d 845) (1997).
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Thus the trial court did not abuse its discretion in allowing the statements made to the victim’s mother, Elizabeth Stewart. The evidence showed that the victim was very close to both of her parents, that she trusted and confided in her mother and routinely sought her advice. In fact, she spoke by telephone with her mother almost daily, including the day before her murder. The victim had no reason to lie to her mother, nor were her statements contradicted in any manner. Thomas v. State, 274 Ga. 156, 549 SE2d 359
“Uncontradicted
statements made to one in whom the deceased declarant placed great confidence
and to whom she turned for help with her problems are admissible under the
necessity exception.” Ward v. State, 271 Ga. 648, 650 (2) (520
SE2d 205) (1999).
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Necessity-Circumstantial
Guarantee of Trustworthiness Shown
“Uncontradicted statements made to one in whom the deceased declarant placed
great confidence and to whom she turned for help with her problems are
admissible under the necessity exception. Ward v. State, supra at 650Ward
v. State, 271 Ga. 648, 650 (2) (520 SE2d 205) (1999). Ward v. State,
271 Ga. 648, 650 (520 SE2d 205) (1999) (uncontradicted statements to person in
whom victim confided and to whom she turned for help with her problems are
admissible under necessity exception). Slakman v. State, 272 Ga. 662,
668 (533 SE2d 383) (2000) (victim’s statements to mother possessed sufficient
indicia of trustworthiness where victim confided in mother and sought her help
and advice regarding marital problems).
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McWilliams v. State, 271 Ga. 655 (521 SE2d 824) (1999) (victim’s statement to sister was not trustworthy since victim did not confide in sister on a regular basis).
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Res Gestae-Declarations Closely Accompanying An Act or incident May Not Always Be HearsayRes Gestae now abolished as of January 1, 2013
The res gestae exception to hearsay is not recognized under the Federal Rules of Evidence and will no longer exist in Georgia starting January 1, 2013. The three hearsay exceptions derived from res gestae cases are: 803(1) – present sense impressions; 803(2) – excited utterances; and 803(3) – statements of then existing mental, physical, or emotional conditions.
Georgia Law States: Declarations accompanying an act, or so nearly connected therewith in time as to be free from all suspicion of device or afterthought, shall be admissible in evidence as part of the res gestae. OCGA 24-3-3.
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How To Get Statements In To Show Conduct, Harsh Words, Abuse, etc.
To admit their statements under res gestae, you never need to demonstrate that the witness
was unavailable to testify. Never.
Simply, create a timeline of when the event occurred and what happened
before and afterwards.
For example, in a daycare abuse case where the claimant was fired for hitting a child:
Find out how long ago the incident or event occurred, i.e. when the injury was
first discovered. Get testimony as to when the child was last observed without
the injury, etc.
With this information, the out of court statement of child may be reliable
if injury marks or other evidence support the statement and the statement was
made within an hour or so of the event.See Excited Utterances
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No Bright Line
Test For Res Gestae
What is
res gestae of a given transaction must depend upon
its own peculiarities of character and circumstances.
The real test is whether the subject declarations
are part of the occurrence to which they relate. Courts must allow
some latitude in this matter. The admissibility
of the declarations does not depend upon any arbitrary time or general rule for
all cases, but is left to the sound discretion of the court in determining from
the time, circumstances and statements in question, whether declarations meet
the statutory requirements of being free from all suspicion of device or
afterthought. Priebe v. State, 250 Ga. App. 725, 553 S.E.2d 5
(2001).
“an event precipitating the statement must have been sufficiently startling to render inoperative the declarant's normal reflective thought processes, and the declarant's statement must have been the result of a spontaneous reaction, and not the result of reflective thought.” Tesfaye v. State, 275 Ga. 849, 569 S.E.2d 849 (2002). Underwood v. State, 250 Ga. App. 764, 552 S.E.2d 915 (2001).
“So long as the statement is relevant and made without premeditation, the trial court may admit the evidence. Thus, a statement of witness (not at the trial) describing the robbery suspect was not hearsay when The witnesses provided the information within 15-20 minutes from the time the crime occurred. Prior to admitting the testimony, the trial court established that the two witnesses voluntarily approached the officer after seeing police activity at the hotel. Espy v. The State. 246 Ga. App. 1
Thus, “[a] trial judge’s determination that evidence offered as part of the res gestae is sufficiently informative and reliable as to warrant being considered by the jury will not be disturbed on appeal unless that determination is clearly erroneous.” Stouffer Corp. v. Henkel, 170 Ga. App. 383, 385 (1) (317 SE2d 222) (1984). See also Moore v. State, 217 Ga. App. 207, 210 (5) (456 SE2d 708) (1995)
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Inquiry into Events
More Important Than The Time Period Elapsed.
What the law altogether
distrusts is not after-speech but afterthought. In cases when a statement is
narrative rather than exclamatory, the circumstances must be closely
scrutinized, because narrative is generally the result of afterthought. If
the declarations appear to spring out of the transaction--if they elucidate
it--if they are voluntary and spontaneous, and if they are made at a time so
near to it, as reasonably to preclude the idea of deliberate design, then they
are to be regarded as contemporaneous.
Brantley v. State
, 338 S.E.2d 694, 696 (Ga. Ct.
App. 1985).
However, no precise time
can be fixed a priori when the res gestae ends, but
each case must turn on its own
circumstances, the inquiry being rather into events than to the precise time
which has elapsed. (Citation and
punctuation omitted Brantley v.
State
, 338 S.E.2d 694, 696 (Ga. Ct. App. 1985).
See Excited Utterances
Proof of Unavailability Not a Requirement for
Admissibility of Res Gestae
Kenney v. State,
236 Ga. App. 359, 511 S.E.2d 923 (1999); Stovall v. State, 216 Ga. App.
138 (1) (453 SE2d 110) (1995) (Georgia law has never required proof of
unavailability of the declarant to admit res gestae.)
An Outcry For Help An Hour after Crime
Admissible as Part Of the Res Gestae
The Supreme Court held
that an outcry made by a rape victim to one she immediately sought out within
one hour from the commission of the crime was sufficiently
contemporaneous to be part of the
res gestae and therefore admissible. The fact that
the outcry was not made to
the first person the victim saw after the rape does not render it inadmissible.
Tucker v. State, 243 Ga. 683, 256 S.E.2d 365 (1979)
Written Statement Given to Police 20-45 Minutes After Incident Admissible as res gestae
Statement of assault victim
admissible when given 30 minutes after police had arrived at her
apartment.
Court found
her statements were relevant
and made without premeditation.
It was noted that the victim was visibly shaken and had red marks on her neck
when she told the officer that the defendant pushed her down and threatened
her, and she gave her written statement about 30 minutes after
police arrived at her apartment. White v. State, A03A1958
(1/9/04), 04 FCDR 333, 2004 Ga. App. LEXIS 27 (go to GA case lookup as now
should be in a bound volume)
Over
hearsay
objection, a police officer was permitted to read a statement which he had
witnessed being written by Su In Chang at the scene of the crime some 45
minutes after the crime was committed.
Stovall v. State,
216 Ga. App. 138, 453 S.E.2d 110 (1995).
Witness' statement to police made 30
minutes after robbery admissible as res gestae.
Gilbert v. State,
241 Ga. App. 57, 60 (3) (526 SE2d 88) (1999)
The trial court correctly relied on res
gestae exception when victim made his statement while receiving emergency
treatment just 25 to 30 minutes after the shooting.)
Morgan v. State
275 Ga. 222 (6) (564
SE2d 192) (2002). See also
Jay v. State, 232 Ga. App. 661, 663 (3) (503 SE2d 563) (1998);
Brinson v. State, 208 Ga. App. 556 (1) (430 SE2d 875) (1993); Salleywhite v.
State, 133 Ga. App. 170 (1) (210 SE2d 334) (1974).
state introduced testimony of Wright, a friend of the victim, who related what the victim told her about the assault with which appellant was charged. In narrative form the witness related what had happened to her 30 minutes prior to reaching the witness’s home. The Court of Appeals found no abuse of discretion in the trial court’s decision that the statements came within res gestae. Further held that it is a determination in which very often no precise time when the res gestae ends may be fixed. Ward v. State, 186 Ga. App. 503, 368 S.E.2d 139 (1988).
Statements on 911 Tape Admissible as Res Gestae if Properly Authenticated Cook v. State, 273 Ga. 574, 543 S.E.2d 701 (2001). Defendant was on trial for murder of his then-wife’s lover. The Defendant’s wife had called 911 the night of the incident. By the time of trial, the two were estranged, and she refused to come to trial. The Defendant claimed that her statements on the 911 tape were not properly authenticated and were inadmissible hearsay. Her statements on the 911 tape were properly authenticated by the 911 dispatcher and supervisor, and were excited utterances and admissible as res gestae.
Back To Statutes and Case Law
Statements Found Inadmissible-Not Part Of Res Gestae
Downs v. State,
240 Ga. App. 740, 524 S.E.2d 786 (1999)...The Court held that the
trial court erred in admitting the testimony from the victim’s daughter that the
victim, defendant’s wife, stated that the defendant had struck her, since there
was insufficient evidence of trustworthiness. Just before the victim
allegedly made
the statements to her daughter, she contradicted those statements at a preliminary hearing. However, the Court held it was harmless error because it was cumulative of other testimony. (Victim asserted her marital privilege and did not testify.)
Wilbourne v. State,
214 Ga. App. 371, 373, 448 S.E.2d 37 (1994). In this reversal of defendant’s
conviction for simple battery, the statements of the victim to the police
officer three and one-half hours after the incident were
not admissible under res gestae 24-3-3 and without
proof that declarant unavailable was also not admissible.
The only evidence as to
the time of the fight was given by appellant, who placed the fight at about
three-and-one-half hours before the officer arrived. This evidence was created
hours after the occurrence and bears no mark of spontaneity or other such state
of mind undeniably free of conscious device or afterthought it is not admissible
as res gestae. Georgia
law has never required proof of unavailability of the declarant to admit
res
gestae. Wilbourne v. State,
214 Ga. App. 371, 373, 448 S.E.2d 37 (1994)
Back To Statutes and Case Law
The Most & Least Useful Hearsay Exceptions
The advantage is that none of these require the maker of the statement to be at the hearing. In fact, unlike other hearsay exceptions, it makes no difference whether or not the declarant was readily available to testify. It’s simply a non-issue.
See Chart Of Non-Hearsay And Hearsay Exceptions
While it may be tempting to admit important information under the Child Hearsay or Necessity exception, it’s almost impossible to meet the requirements.
Among other things, the necessity exception requires the maker of the statement to be dead or unavailable. Unavailable means far more than that the witness is out of town or no longer with the company. Usually it must be shown that the witness refuses to testify, is asserting some privilege against testifying, or has eluded reasonable attempts to contact him. Civil cases are sparse on what efforts are required to get the witness to the hearing.
The child hearsay exception is another demanding standard that is rarely met at unemployment hearings. For such statements to be admissible, the proponent must show the child was abused, under 14 at the time, and available now to testify. The last part of the test is usually fatal because children rarely testify at unemployment hearings. Indeed, with abuse cases, most employers would be reluctant to bring them.
See Chart Of Non-Hearsay And Hearsay Exceptions
Other Exceptions-Law and Cases
|
Diagrams & Maps (Drawn By Others) |
Police Reports |
| Public Safety Records | Co-Conspirators |
| Child Abuse | |
| Expert Opinions See New Laws of 2013 |
Back To Chart of Hearsay Exceptions
.
O.C.G.A. § 24-3-16.
Child Sex Crime
A statement made by a
child under the age of
14
years
describing any act of
sexual contact or physical abuse
performed with or on the child by another or performed with or on another in the
presence of the
child is admissible
in evidence by the testimony of the person or persons to whom made
if the child is available
to testify in the proceedings and the court finds that the circumstances of the
statement provide sufficient indicia of reliability.
In determining whether a statement is reliable, a trial court looks to many factors, including, but not limited to,
(1) the atmosphere and circumstances under which the statement was made (including the time, the place, and the people present thereat); (2) the spontaneity of the child's statement to the persons present; (3) the child's age; (4) the child's general demeanor; (5) the child's condition (physical or emotional); (6) the presence or absence of threats or promise of benefits; (7) the presence or absence of drugs or alcohol; (8) the child's general credibility; (9) the presence or absence of any coaching by parents or other third parties before or at the time of the child's statement, and the type of coaching and circumstances surrounding the same; and, the nature of the child's statement and type of language used therein; and (10) the consistency between repeated out‑of‑court statements by the child.[3][3]
O.C.G.A. § 24-3-17.
Department of Public Safety Records
(a) A certified copy of any record of the Department of Public Safety or
comparable agency in any other state is admissible in any judicial proceedings
or administrative hearing in the same manner as the original of the record.
(b) Any court may
receive and use as
evidence in any case
information
otherwise admissible
from the records of the Department of Public Safety
obtained from any
terminal lawfully connected to the Georgia Crime Information Center
without the need for additional certification of those records.
See Business Records
Admissions-3 Types of
Privies
(click
here for source of definition)
(1) privies
in blood, for example, ancestor and heir;
(2)
privies in law, for example
(formerly) tenant by the curtesy or in dower, and others that came in by act in
law, for example testator and executor, intestate and administrator, bankrupt
and trustee in bankruptcy;
(3) privies in estate or interest,
for example testator and devisee, vendor and purchaser, landlord and tenant, a
husband and his wife claiming under his title and a wife and husband claiming
under hers, successive incumbents of the same benefice, assignor and assignee of
a bond, and the employee of a corporation defending a claim of trespass at the
cost of his employers and justifying under their title and the corporation
itself.
Diagrams Drawn By
Others Not At The Hearing Are Admissible
Diagrams “are admissible simply on the basis of testimony
that they are substantially accurate representations of what the witness is
endeavoring to describe." J. B. Hunt Transport v. Brown, 236 Ga. App. 634,
636 (1), 512 SE2d 34 (1999).
Clarke County School Dist. v. Madden, 99 Ga. App. 670, 677 (2), 110 SE2d 47 (1959); See Bagley v. City of Alma, 178 Ga. App. 474 (1), 343 SE2d 740 (1986) (“the testimony proving the correctness of the map need not come from the preparer of the map so long as the witness has had an opportunity to know whether it is correct.”).
Under pre-2013
Georgia law, “narrative portions” of a police report were
inadmissible in civil and criminal cases. The new public record exception is
somewhat broader. However, “matters observed” refers only to descriptive
statements. While mundane, descriptive opinions may qualify, such as a person
was
“belligerent” or “in pain,” evaluative statements are not admissible under
subsection
(B) and must qualify under subsection (C), “factual findings.”
Matters
Observed Pursuant to Duty – Subsection (B)
New O.C.G.A. § 24-8-803(8)(B)
covers:
Matters observed pursuant to duty imposed by law as to which matters there
was a duty to report, excluding, however, against the accused in criminal
proceedings, matters observed by police officers and other law enforcement
personnel in connection with an investigation
A public
official’s recording of witness statements in a report are “matters observed”
and if the witness’s statements fall under a hearsay exception the double
hearsay
problem (“the report states, the witness said”) is satisfied. For example, if a
police
report in a civil case includes the statement of a bystander, taken 10 minutes
after an
explosion: “I saw a huge fireball behind the barn!” the report is admissible
under
rule 803(8)(B) as a “matter observed” by the officer and the eyewitness’s
statement
is admissible under rule 803(2) as an excited utterance.
See U.S. v. Sallins, 993 F.2d 344,
347 (3d Cir. 1993);U.S. v. De Peri, 778 F.2d 963, 977 (3d Cir. 1985). The report
is typically authenticated under New O.C.G.A. 24-9-902 or 24-9-920
which establishes that it is a public record. The question of whether it was
prepared
pursuant to legal duty or authorization is a preliminary question of fact that
the trial
can determine using O.C.G.A. § 24-1-104(a), considering any non-privileged
evidence, including hearsay.
A police report in an auto accident case may be inadmissible under O.C.G.A. §
40-9-
41 which provides:vNeither any accident report filed with the Department of
Transportation, the
action taken by the Department of Driver Services pursuant to this chapter,
the findings, if any, of the department upon which such action is based, nor
the security filed as provided in this chapter shall be referred to in any way,
nor shall they be any evidence of the negligence or due care of either party, at
the trial of any action at law to recover damages.
See
Business Records
Summary of The Major Differences Between GA Law and The Proposed New Rules of
Evidence
See page 9 for Statements of Co-Conspirators.
WOMACK v. STATE
Under an exception to the hearsay rule, the statement
of any co-conspirator during the pendency of a criminal project is admissible
against every other co-conspirator. OCGA § 24-3-5. "To render an out-of-court
statement admissible under OCGA § 24-3-5, the prosecution need only show that it
was made by a co-conspirator during an ongoing conspiracy with the defendant and
that it bears sufficient indicia of reliability." (Citation omitted.) Arevalo v.
State,
275 Ga. 392, 397 (5) (567 SE2d 303) (2002). "The trial judge may admit
testimony by co-conspirators before the conspiracy has been proved, provided its
existence is ultimately shown at trial." (Citation and footnote omitted.)
Belmar v. State,
252 Ga. App. 264, 266 (1) (555 SE2d 902) (2001). "The question of the
existence of a conspiracy is ultimately for the jury to determine. The existence
of a common design or purpose between two or more persons to commit an unlawful
act may be shown by direct or circumstantial evidence." (Citations and
punctuation omitted.) Mayne v. State,
258 Ga. 36, 37 (2) (365 SE2d 270) (1988).
Pendency of a Criminal Project (WOMACK
v. STATE
Further, the Supreme Court of Georgia has held that the criminal project is
still pending so long as the conspiracy to conceal the fact that a crime has
been committed or the identity of the perpetrators of the offense continues. . .
. [S]o long as the conspiracy to conceal the identity of the perpetrators of the
offense continues, the parties to such conspiracy are to be considered so much a
unit that the declarations of either are admissible against the other.
(Citations, punctuation and emphasis omitted.) Arevalo v. State, 275 Ga. at 396-397 (5) (holding that a conspiracy between two brothers "never ended," because they attempted to conceal their roles in a murder by continuing to insist that a third party was the sole shooter). See also Jones v. State, 265 Ga. 84, 85 (2) (453 SE2d 716) (1995) ("Although a conspirator's statement, which is made to police and incriminates a co-conspirator, brings the conspiracy to an end, a like statement which is made to acquaintances does not.") (citations omitted).
Statements Must Have Sufficient Indicia Of Reliability
The admission of a co-conspirator's statement does not violate the Confrontation
Clause as long as there are "sufficient 'indicia of reliability.'" [Cit.]
Factors indicating reliability include (1) the absence of
an express assertion of past facts, (2) the co-conspirator had personal
knowledge of the facts he was stating, (3) the possibility that the
co-conspirator's recollection was faulty was remote, and (4) the co-conspirator
had no reason to lie about the defendant's involvement in the crime. [Cits.]
Redwine v. State
See below for Things maybe to add in later
________________________________________________________
1. "Help!" Help is not a statement about a fact, it is a cry for assistance and cannot be either true or false. Whether, even if it were hearsay, it would be subject to the exception for an excited utterance is beside the point.
2. "I accept your offer." is also not a statement of fact that can be true or false. In, a contract action, the issue would not be whether these words were true, but whether they were said.