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In Practice

Changes affecting hearsay under the new Georgia Evidence Code

By Stephen J. Harper, Special to the Daily Report All Articles 

Daily Report

December 4, 2012

Stephen J. Harper is the director of programs for the Institute of Continuing Legal Education in Georgia. He has extensive trial litigation experience gained by participating in more than 1,000 criminal trials as prosecutor, defense counsel and judge. He was the senior and managing partner for several large military law offices and has taught constitutional law at West Point. In addition, he has served as an adjunct professor at the University of Georgia School of Law since 1998 and teaches in the area of trial practice, with an emphasis on evidentiary issues. Harper earned his juris doctor from the University of Alabama School of Law in 1974 and his bachelor's degree from the U.S. Military Academy at West Point in 1968. He completed the Graduate Law Program at the U.S. Army Judge Advocate General's School, University of Virginia, in 1978.
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This article addresses changes in the new Georgia Evidence Code that affect hearsay. It is not an exhaustive treatment of this often-misunderstood area of evidence law. Hopefully it will help you prepare for your trials held after the code's effective date of Jan. 1, 2013. Code references, except where noted, are to the new rules. Current Georgia law is referred to as old law.

It is worth mention at the outset that a significant change under the new Georgia rules provides that when inadmissible hearsay is not objected to, the objection is waived and such evidence is legal and may support the result of trial, O.C.G.A. § 24-8-802. Until Jan. 1, 2013, in Georgia, even when there is no objection, inadmissible hearsay is illegal evidence and has no probative value

Hearsay is evidence that does not derive its value solely from the credibility of the witness but rests mainly on the veracity and competency of another person. O.C.G.A. § 24-8-801(c) defines hearsay as any statement other than one made by the declarant while testifying in the trial or hearing offered to prove the truth of the matter asserted. A "statement" of a declarant is an oral or written expression in words or nonverbal conduct intended as an assertion, i.e., the declaration of a specific relevant fact. It is not just the acquiescence or silence of an accused in a criminal case, Jarrett v. State, 265 Ga. 28, 453 S.E.2d 461 (1995). But the testimony of a state's witness (that during an out-of-court conversation a woman told him she saw the accused beat the victim, and the accused, who was present, told her to "shut up") was admissible, Gordon v. State, 273 Ga. 373, 541 S.E.2d 376 (2001).

In Georgia civil cases, the admissibility of silence or acquiescence by a party to a statement which, if untrue, the party would be expected to deny will be decided preliminarily by the trial judge under O.C.G.A. § 24-1-104(b). The trial judge should admit the evidence if a reasonable jury could find that a response was called for if the statement was untrue. If admitted, the judge will instruct the jury on this matter for their ultimate determination as to the weight, if any, this evidence will be accorded.

The new code retains the principle that it is not hearsay when a witness testifies as to what she or he said out of court, is subject to cross-examination and the statement is admissible as a prior inconsistent statement or a prior consistent statement to rebut an attack on the witness's credibility, not merely to bolster his or her credibility, O.C.G.A. § 24-8-801(d)(1)(A). Also, any relevant out-of-court statement voluntarily made by a party in a civil case or the accused in a criminal case is admissible, O.C.G.A. § 24-8-802(d)(2). This exception does not apply to a non-party. Anything heard by a witness while in the defendant's presence is not hearsay, Latimore v. State, 170 Ga. App. 848 (1984).

Even if there is no hearsay rule exception available, a witness in Georgia may testify to what someone else said out of court, if that someone is in court, available to testify and subject to cross-examination, Shelton v. Long, 177 Ga. App. 534, 339 S.E.2d 788 (1986). But in Johnson v. Knebel, 222 Ga. App. 522, 488 S.E.2d 131 (1996), the court inferred that the declarant needed to be in court and subject to recall, not excused.

If the proponent can convince the judge that the proffered statement is not hearsay, there is no need to demonstrate an exception. A simple test, proposed by Professor Paul Milich, Georgia State University College of Law, is to assume that the maker had no idea of whether what he or she was saying was true and then ask if the statement is still relevant to the crime charged or civil claim. If "yes," then it is not hearsay and is admissible. Also, if the statement does not declare a specific relevant fact it is not assertive, but if it is relevant for any reason, it is admitted as non-hearsay.

Several federal cases provide creative examples of this concept. An exclamatory statement, "You are a dead man!" made by a party to the crime to the victim during the assault by defendant asserts nothing, but it may be relevant to show the state of mind of the declarant or that the statement was made and heard by the defendant, Martinez v. McCaughtry, 951 F.2d 130 (7th Cir. 1991).

An order or imperative statement, "Tell him to get off my back and get another patsy." was admitted to show state of mind, i.e., that the relationship had broken down between the Catholic priest and the defendant in a tax fraud scheme, U.S. v. Dandy, 998 F.2d 1344 (7th Cir. 1991).

An interrogatory or inquiry, "Have the apples arrived?," heard by a law enforcement officer who answered defendant's phone while searching defendant's apartment, is not an assertion to prove anything, rather it was admitted to show defendant's knowledge and intent in a drug case, U.S. v. Oguns, 921 F.2d 442 (2nd Cir. 1990).

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