Georgia Rules of Evidence

A Brief Summary of Some of the Major Differences Between
Existing Georgia Law and the Proposed New Rules of Evidence

by Paul S. Milich, Professor of Law, Georgia State University, Reporter, Evidence Study Committee, State Bar of Georgia

Hearsay - Under current Georgia law, hearsay is “illegal” evidence and even if a party 
never objected to hearsay at trial, the party may later attack the verdict as resting on 
illegal hearsay. Georgia is the only state in the country that retains this 19th century view 
of hearsay. The new rules would allow a fact finder to base a decision on hearsay if the 
no one objected to the hearsay at trial.  See, proposed O.C.G.A. 24-8-802. 
 
Res Gestae - The proposed rules retire the term “res gestae.”  Nearly every jurisdiction 
in the U.S. has replaced this maddeningly malleable doctrine with specific rules covering 
several classes of statements that experience (primarily with the res gestae concept) has 
proved are especially trustworthy.  See, proposed O.C.G.A. 24-8-803 (1),(2),(3). 
 
Admissions by Agents -  Georgia’s agency admission rule has a confusing history, 
due in large part to the overlap of two, inconsistent statutes - one in the Evidence Code 
and one in the Title on Agency - that both speak to the admissibility of an agent’s 
statements against his principal. Most cases limit agent admissions to those that were 
authorized by the principal.  The proposed rules require that the statement have been 
made during the agency relationship and that the subject matter of the statement fall 
within the scope of the agent’s duties. See, proposed O.C.G.A. 24-8-801(d)(2)(D). 
 
Business Record Exception - Current Georgia law and the proposed rules differ in 
two respects.  (1) The current Georgia rule does not allow opinions in the record.  The 
proposed rules do. Thus, for example, an appraiser’s report as to the value of certain 
property could be admissible under the new rule but not under current Georgia law. Lay 
or expert opinions in the record still would have to qualify under the rules governing 
opinion testimony. Moreover, the court can exclude a business record when “the source 
of information or the method or circumstances of preparation indicate a lack of 
trustworthiness.”  
 
(2)  Georgia requires that a witness at trial lay any foundation necessary to the 
admission of a business record. The proposed rules allow the use of an affidavit to lay 
this foundation if the proponent gives opposing parties notice and an opportunity to 
examine the records before trial.  See, proposed O.C.G.A. 24-8-803(6); 24-9-902(11). 
 
 
Public Records Exception - Georgia has dozens of statutes regarding the 
admissibility of specific public records scattered all over the Official Code of Georgia.   
Together, their coverage is similar to proposed O.C.G.A. 24-8-803(8)(A), admitting the 
routine records of any public agency.  
 
Georgia uses its general business record exception for admitting public records not 
specifically covered by statute. Again, this does not permit statements of opinion in the 
record.  Proposed O.C.G.A. 24-8-803(8)(B) and (C) admit matters observed and 
reported pursuant to duty as well as factual findings resulting from duly authorized 
investigations, though these provisions are unavailable to the prosecution in criminal 
cases. 
 
Learned Treatises - In Georgia, an expert may refer to treatises and other learned 
publications on direct but the expert may not disclose or show the pertinent contents of 
the publication to the jury. The contents may be inquired into on cross. The proposed 
rule allows relevant portions of a treatise to be read or shown to the jury on direct if the 
work is considered a reliable authority in the particular field.  See, proposed O.C.G.A. 
24-8-803(18). 
 
Expert Opinion Testimony - Since 2005, Georgia has applied its version of Federal 
Rule 703 in civil cases which allows an expert to base an opinion on facts, otherwise 
inadmissible, that are reasonably relied upon by other experts in the field. The new rules 
would apply this same rule in criminal cases. See, proposed O.C.G.A. 24-7-703.  The 
current rule applying Daubert to expert opinions in civil cases but not in criminal cases 
would remain unchanged.  
 
Statements of Co-Conspirators -  Georgia does not require that a co-conspirator’s 
statement have been in furtherance of the conspiracy in order to be admissible under 
this exception.  Georgia’s law is very unusual in this respect.  The proposed rule is based 
on the requirement at common law and carried forward in the Federal Rules that any 
statements admissible as a co-conspirator admission must have been in furtherance of 
the conspiracy.  See, proposed O.C.G.A. 24-8-801(d)(2)(E). 
 
Statements Against Interest - In Georgia criminal cases, statements against penal 
interest are inadmissible. Under the proposed rules, a statement against penal interest 
would be admissible if the declarant is unavailable and there exists corroborating 
circumstances that indicate the trustworthiness of the statement.  See, proposed 
O.C.G.A. 24-8-804(b)(3). 
 
Character Witnesses - Current Georgia law allows reputation testimony, but not 
opinion testimony.  The new rules allow both.  As one Georgia court wrote, “[I]t is an 
evidentiary anomaly that in proving general moral character [Georgia] law prefers 
hearsay, rumor, and gossip, to personal knowledge of the witness.”  See, proposed 
O.C.G.A. 24-4-405, 24-6-608. 
 
Admissions By Silence - In Jarrett v. State, 265 Ga. 28 (1995), the Supreme Court 
held that a witness “may not testify as to a declarant’s statements based on the 
acquiescence or silence of the accused.”  The new rules would allow admissions based on 
the accused’s silence if the statements are made in the presence of the accused, the 
police or other authorities are not present, and there is no good reason for the accused’s 
silence other than the statements are true. See, proposed O.C.G.A. 24-8-801(d)(2)(B). 
 
“Bent of Mind” in Proving “Similar Transactions” - Georgia is the only 
jurisdiction in the U.S. that allows a court to admit a criminal defendant’s past crimes or 
acts to prove the accused’s “bent of mind” toward the criminal conduct with which he is 
charged. The bent of mind exception is not in Georgia’s statute but crept quietly into 
Georgia cases starting in the 1980’s. As one Supreme Court Justice has wrote, a 
defendant’s “bent of mind” is really no different than his “character” and thus the bent 
of mind exception has been slowly swallowing the 350 year old rule that prohibits using 
proof of the defendant’s character against him at trial. The proposed rule is based on 
Federal Rule 404(b). See, proposed O.C.G.A. 24-4-404(b). 
 
Offers to Compromise - Settlement Negotiations - Georgia law and the proposed 
rules are substantially similar though the proposed rules are simpler in two respects.  (1) 
Georgia courts have made some arduous distinctions between “offers to settle” and 
“offers to compromise.” The proposed rules simply require that liability or damages be 
in dispute.  (2) Georgia has struggled with “collateral admissions” - - statements made 
in the course of presenting an offer to compromise but not themselves made with a view 
to a compromise.  The proposed rules cover such statements if they are part of the 
settlement negotiations or a mediation.  See, proposed O.C.G.A. 24-4-408. 
 
Prior Inconsistent Statements - Georgia follows the rule of Queen Caroline’s case, 
requiring that a witness be shown his prior written statement or have his attention 
drawn to the time, place and circumstances of a prior oral statement before he can be 
impeached upon it.  The proposed rules do not require this foundation.  The proposed 
rules only require that the witness have an opportunity to explain or deny the prior 
statement.  In practice, this means the prior statement must be introduced on cross-
examination of the declarant. See, proposed O.C.G.A. 24-6-613. 
 
Competency of Juror to Impeach Verdict - In Georgia, a juror is competent only 
to sustain, never to impeach, a verdict.  An exception exists for when the jury was 
exposed to external information or influence. This exception applies only in criminal, 
not civil cases. Georgia is the only jurisdiction in the U.S. with such a distinction. The 
proposed rules extend this exception to civil cases. See, proposed 24-6-606(b). 
 
Authentication and Identification - Existing Georgia law and the proposed rules 
are consistent, though the proposed rules are broader in some areas, such as 
identification of parties to a phone conversation and self-authentication of commercial 
paper, notarized documents, etc. The proposed rules pull together all authentication 
rules into one, clear set.  See, proposed O.C.G.A. 24-9-901, 902. 
 
Best Evidence Rule - Georgia’s best evidence rule consists mainly of 19th Century 
statutes. Georgia’s rule, for example, does not apply to photos or videos but only 
writings. The proposed rules apply to all forms of recordation. Georgia requires that in 
most cases in which an writing or recording must be produced, the proponent must 
produce the original or else account for why the original cannot be produced before 
being allowed to use a copy. The proposed rules allow the use of copies unless the 
opponent cites specific reasons why the court should insist on production of the original. 
See, proposed O.C.G.A. 24-10-1001 through 1008. 
 
Exclusion of Evidence Because of Prejudice, Confusion, or Waste of Time.  
Although Georgia cases have recognized the trial court’s authority to balance the 
probative value of the evidence against its unfairly prejudicial effect, the cases are 
inconsistent on the standard and scope of the trial court’s authority. The proposed rules 
give the trial court discretion to exclude relevant evidence if its probative value is 
substantially outweighed by the danger of unfair prejudice, confusion, or undue delay. 
This standard applies to all evidence except where specific evidence rules expressly set a 
different standard.  See, proposed O.C.G.A. 24-4-403. 
 
Habit Routine Practice - Georgia case law has slowly recognized the admissibility of 
habit evidence but it generally does not allow a third party to testify to another’s habit.  
The proposed rule has no such restriction. If adequate foundation is laid showing how 
the witness would be familiar with the subject’s habit or routine, the witness may testify 
to it. See, proposed O.C.G.A. 24-4-406.