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  1. Institute of Continuing Legal Education in Georgia Hot Topics in Criminal Law Loews Atlanta Hotel January 2012 The Impact of the New Georgia Evidence Law on Cross-Examination Bruce S. Harvey Law Offices of Bruce S. Harvey 146 Nassau St. NW Atlanta, GA 30303 404.659-4628 www.bharveylawfirm.com

  2. Introduction to the New Evidence Code • Rewrite of Georgia’s Evidence Code • Embrace of Federal Law • Adoption of Key Federal Standards • Reliance on Federal Authority • No ex post facto bar • Effective Jan. 1, 2013 Georgia Bar members must consider their leadership role and be fully prepared for this revolutionary transition

  3. When Do the New Rules of Evidence Apply? • All trials in any court – jury and/or non-jury • Preliminary Hearings, except that “Hearsay shall be admissible.” • OCGA 24-1-2

  4. When Do the New Rules of Evidence Apply? Do not apply to: • Preliminary questions relating to the admissibility of evidence. • Bond Hearings • In Rem forfeiture proceedings except that “Hearsay shall be admissible in determining probable cause in reasonable cause.” • OCGA 24-1-2

  5. Preservation of Error No longer need to object at time of admission after the court has previously ruled. • OCGA 24-1-103

  6. Preliminary Questions The trial court decides all evidentiary issues by a preponderance standard, outside presence of jury for confessions (always) or “when the interests of justice require.” • OCGA 24-4-104

  7. Instructions on Limited Admissibility Upon request, a trial court must give a limiting instruction to the jury whenever evidence is admitted for a limited purpose. • OCGA 24-1-105

  8. Rule of Completeness Under the federal version of the rule of completeness, an adverse party may require the admission of all or relevant parts of a document at that time. This dramatically effects the timing of the introduction of evidence. Beech Aircraft v. Rainey, 488 US 153 (1988) US v. Sweiss, 814 F2d 1208 (7th Cir. 1987) US v. Moussaoui, 382 F3d 453 (4th Cir. 2004) US v. Range, 94 F3d 614 (11th Cir. 1996) • OCGA 24-4-106

  9. New Federal Prejudice Standards and Presumptions Allrelevantevidence shall be admissible, except as limited by constitutional requirements or as otherwise provided by law or by other rules, as prescribed pursuant to constitutional or statutory authority, applicable in the court in which the matter is pending. Evidence which is not relevant shall not be admissible. • OCGA 24-4-402

  10. New Federal Prejudice Standards and Presumptions Relevant evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence. • OCGA 24-4-403

  11. Standards of Prejudice FRE’s Statutory: higher threshold allowing for less exclusion “Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice…” FRE 403 GRE’s Common Law: lower threshold allowing for more exclusion “A trial court has the discretion to exclude evidence if its prejudicial impact exceeds its probative value.” Cowards v. State, 266 Ga. 191 (1996)

  12. Relevance Course of investigation evidence is ordinarily not relevant to the issue of guilt. Should not be admitted as “background.” US v. Sallins, 993 F2d 344 (3rd Cir. 1998) US v. Lamberty, 778 F2d 59 (1st Cir. 1985) US v. Cunningham, 462 F3d 708 (7th Cir. 2006) -- Procedures relating to obtaining wiretaporders irrelevant and prejudicial. • OCGA 24-4-401 & 402

  13. AdoptiveAdmissions OCGA 24-8-801(d)(2)(B) • Follows FRE allowing pre-Mirandasilence. • Current Law: Admissible in civil cases; not admissible in criminal cases. Mallory v. State, 261 Ga 625 (1991) Reynolds v. State, 285 Ga 70 (2009)

  14. Change Adoptive Admission Law in Criminal Cases Pre-Miranda silence of defendant is admissible both during case-in-chief and rebuttal. Ventura v. Atty. Gen., 419 F.3d 1269 (11th Cir. 2005) U.S. v. Blakey, 960 F.2d 996 (11th Cir. 1992) U.S. v. Kennard, 472 F.3d 851 (11th Cir. 2006) If it occurred before the time the witness was required to be given his Miranda warnings. US v. Rivera, 944 F2d 1563,1568 (1991)

  15. Change Adoptive Admission Law in Criminal Cases Jury chargeon adoptive admission proper. U.S. v. Carter, 760 F.2d 1568 (11th Cir. 1985) U.S. v. Lemonakis, 485 F.2d 941 (D.C. Cir. 1973)

  16. Excited Utterances by Bystanders • New Rule: Unidentified statements allowed if excited. • Current Law: Inconsistent and unclear case holdings. OCGA 24-8-803(2)

  17. Admission of Excited Utterances “Statements by unidentified declarants… are admissibleif they otherwise meet the criteria of 803(2).” Miller, 754 F.2d 507 Res Gestae US v. James, 564 F3d 960 (8th Cir 2009)

  18. Admission of Excited Utterances “The proponent of the exception must establish (1) the occurrence of a startling event; (2) that the declarant made the statement while under the stress of excitement caused by the event; and (3) that the declarant's statement relates to the startling event.” Alexander, 331 F.3d 116

  19. Scope of Cross-Examination OCGA § 24-6-611(b) • New Ruleretains GA pattern and allows for a “thorough and sifting” cross. • Applies to State as well as Defense. Richardson v. State, 305 Ga. App. 363 (2010)

  20. Flight • New Rule: Party’s admission admissible under hearsay rule. • Current Law: Admissible, but in criminal cases cannot be the subject of a jury charge; differentiation between flight and avoidance. OCGA 24-8-801(d)(2)(A)

  21. Federal Rules on Flight Evidence Flight and“evading authorities” both admissible as proof of consciousness of guilt.  U.S. v. Kennard, 472 F.3d 851 (11th Cir. 2006) Jury instruction on flight allowed.. U.S. v. Blakey, 960 F.2d 996 (11th Cir. 1992) U. S. v. Wright, 392 F. 3d 1269 (11th Cir. 2004) U.S. v. Borders, 693 F.2d 1318 (11th Cir. 1982)

  22. Party Hearsay OCGA 24-8-801 • New Rule: Adopts federal pattern. Unless authorized by a specific hearsay exception, party self-quotation is not allowed. U.S. Mitchell, 502 F. 3d 931, 964 (9th Cir. 2007) Current law: Allows self-quotation.

  23. Georgia’s Hearsay Rules Allow Self-Quotation (Sometimes) • “Where a witness testifies as to what he or she told another person, it is not hearsay.” Metts v. State, 297 Ga. App. 330 (2009) • “…the witness's prior consistent statement is pure hearsayevidence which cannot be admitted….” Astudillo v. State, 244 Ga. App. 612 (2000)

  24. Expert Witness Standards [Expert witness video clips from Dr. Conrad Murray trial.]

  25. Expert Witness Standards • Retains “Harper Standard” • Daubertwill not apply to criminal cases. • Different thresholds for expert testimony in criminal and civil cases upheld. Mason v. Home Depot USA, Inc., 283 Ga. 271, (2008) OCGA 24-7-707

  26. Prior Crime Impeachment OCGA 24-6-609 • New Rule: Generally follows FRE, removing higher threshold and disallowing nolo pleas. • Current Law: Essentially the same.

  27. Opening Statement: Correcting Mischaracterizations/Impeachment by Contradiction • New Rule:Allows for “impeachment by contradiction.” • Current Rule: Restricts ability to correct misrepresentations requiring advertence or intentional. OCGA §§ 24-4-403 & 24-6-607

  28. Impeachment by Contradiction The credibility of a witness may be attacked by any party, including the party calling the witness. OCGA 24-6-607

  29. Impeachment by Contradiction Does not bar “prior bad act” evidence used to rebut or “undermine” claims made by the defense in opening statement. US v. Molinaro, 11 F.3d 853 (9th Cir. 1993) FRE 404(b)

  30. Impeachment by Contradiction Misrepresentations in opening statement are fully subject to correction by the opposing side in federal court. US v. Parkin, 917 F.2d 313 (7th Cir. 1990) US v. Klaphake, 64 F.3d 435 (8th Cir.1995) US v. Siraj, 468 F. Supp. 2d 408 (E.D.N.Y. 2007)

  31. Prior Bad Act/Similar Transaction Evidence • New Rule:Generally follows FRE and removes “course of conduct” and “bent of mind.” • Current Law:“Course of conduct” and “bent of mind” allowed. OCGA 24-4-404(b)

  32. Comparing PBA to SimilarsVolume Increased and Admissibility Eased • Statutory • Enumerated bases • Two part test • More options on which to admit evidence • Federal prejudice standard • OCGA 24-4-404(b)

  33. Comparing PBA to SimilarsVolume Increased and Admissibility Eased • Rule • Case law bases • Three part test • “Course of Conduct”/Bent of Mind • Georgia prejudice standard • USCR 31.3

  34. Reverse 404(b) Similar transactions are usually introduced by the government and against an accused. The federal rule, adopted at OCGA 24-4-404(b) is not so restrictive: It provides that similar crimes, wrongs, or acts are admissible regarding “a person.” • US v. McClure, 546 F2d 670 (5th Cir. 1977) • US v. Aboumoussallen, 726 F2d 906 (2nd Cir. 1984) • US v. Cohen, 888 F2d 770 (11th Cir. 1989) • US v. Stevens, 935 F2d 1380 (3rd Cir. 1991) • US v. Wilson, 307 F3d 596 (7th Cir. 2002)

  35. Hearsay (801) Definitional Changes Old: Hearsay evidence is that which does not derive its value solely from the credit of the witness but rests mainly on the veracity and competency of other persons. • OCGA 24-3-1

  36. Hearsay (801) Definitional Changes New: A statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted. • OCGA 24-8-801(c)

  37. Major Hearsay Changes Prior statements of a witness are admissible if admissible under another Georgia rule, e.g. child hearsay statute.

  38. Major Hearsay Changes “Self-serving” statements, previously inadmissible, • See Felder v. State, 260 Ga App 27 (2003) • Alexander v. State, 285 Ga 9 (2009) are now admissible under certain conditions. • See US v. Jackson, 780 F2d 1305 (7th Cir. 1986)

  39. Major Hearsay Changes Co-conspirator statements must be both “in the course of” and “in furtherance” of the alleged conspiracy. • 24-8-801(d)(2)(E)

  40. Major Hearsay Changes Hearsay will no longer be “illegal evidence,” Cabrera v. State, 303 Ga App 646 (2010) and is comptetent evidence unless an objection is lodged. Diaz v. US, 223 US 442 (1912) • OCGA 24-8-802

  41. Major Hearsay Changes “Res Gestae” rule abolished, but is essentially subsumed by other rules. See US v. Riebold, 135 F3d 1226 (8th Cir. 1998) US v. Baker, 432 F3d 1189 (11th Cir. 2005) US v. James, 564 F3d 960 (8th Cir. 1989) • OCGA 24-8-803(1), (2) & (3)

  42. Impeaching the Hearsay Declarant There are two places in the new rules that explicitly provide for attacking a witness who does not testify at trial, see 24-8-801(d)(1)(B) and 24-8-806.

  43. Impeaching the Hearsay Declarant Rule 806 provides for attacking the credibility of a hearsay declarant by: • the introduction of prior convictions, US v. Stefonek, 179 F3d 1030 (7th Cir. 1999); • inconsistent statements, US v. Bernal, 719 F2d 1475 (9th Cir. 1983) US v. Wali, 860 F2d 588 (3rd Cir. 1988) seealsoUS v. King, 73 F3d 1564 (11th Cir. 1996); • bias and motive, US v. Check, 582 F2d 668 (2nd Cir. 1978); • opinion or reputation evidence, US v. Moody, 903 F2d 321 (5th Cir. 1990); • and extrinsic evidence of specific instances of untruthfulness, US v. Friedman, 854 F2d 535 (2nd Cir. 1988).