Evidence Commons^™

The Objection Exception Is Overruled! The Georgia Supreme Court Makes A Course Correction By Reviving The Contemporaneous Objection Rule, Ryan Read

Mercer Law Review

What comes to mind when you think of evidence being presented at jury trials? Typically, both sides prevent evidence to the jury, and both sides fight hard to make sure no prejudicial evidence is allowed in that would bias the jury against their client. Both sides also work hard to prepare persuasive openings and closings to further affect the jury’s perception of their client, the opposition, and the evidence that has been presented. So, when an attorney on one side makes prejudicial statements about the opposing counsel’s client, one would naturally expect an objection to be made, right? Well, in …

Electronic Discovery, Alex Khoury, James R. Williams Jr.

Mercer Law Review

Cooperation, proportionality, and spoliation were the hot topics in electronic discovery in the United States Court of Appeals for the Eleventh Circuit in 2017. Multiple courts joined in Chief Justice Roberts' plea for cooperation in e-Discovery in his 2015 Year End Report on the Federal Judiciary, with a few even requiring the parties and their attorneys to read the Report before bringing additional discovery motions. On the proportionality front, several courts used the proportionality factors to limit e-Discovery burdens imposed on small businesses. On the spoliation battlefield, e-Discovery sanctions continue to punish bad actors, but there has been a decrease …

Electronic Discovery, K. Alex Khoury

Mercer Law Review

At the end of 2015, the Federal Rules of Civil Procedure were amended to reform the discovery process with three main goals in mind: (1) promoting cooperation between the parties, (2) emphasizing proportionality in discovery, and (3) encouraging active case management by the courts. This Article will examine how the courts in the Eleventh Circuit interpreted and applied the new rules in 2016 and consider whether the new rules are having their desired effect on E-Discovery practice.

Electronic Discovery, K. Alex Khoury

Mercer Law Review

The most significant developments in electronic discovery (E-Discovery) law in the Eleventh Circuit in 2015 were the latest amendments to the Federal Rules of Civil Procedure (Amendments), which went into effect on December 1, 2015. As with the last round of amendments in 2006, the 2015 Amendments primarily addressed the rapidly expanding and evolving practice of E-Discovery. Some of the amendments are minor tweaks to existing rules that will have little or no impact on current precedent. Other amendments introduce entirely new rules designed to give the courts and the parties new tools to corral the beast that is E-Discovery. …

Fisher V. Gala: O.C.Ga. § 9-11-9.1(E) Keeping Malpractice Claims Afloat, Kathryn S. Dunnam

Mercer Law Review

For over four decades, the Georgia General Assembly has sought to strike a balance between the need for competent medical care and the role of the judiciary in determining relief for those injured by improper medical treatment. In its effort, Georgia adopted measures to limit the number of frivolous lawsuits to protect its professionals while giving plaintiffs an efficient avenue for relief. One of these adopted measures is the Official Code of Georgia Annotated's (O.C.G.A.) expert affidavit requirement, section 9-11-9.1 (§ 9.1). The use of expert testimony in malpractice cases is "firmly entrenched" in Georgia's policy and crucial to professional …

Evidence, W. Randall Bassett, Simon A. Rodell, Dmitry M. Epstein

Mercer Law Review

The 2013 term of the United States Court of Appeals for the Eleventh Circuit saw a number of precedential opinions dealing with a wide variety of evidentiary issues. Of particular interest to prosecutors and criminal defense attorneys are two Eleventh Circuit decisions applying the Sixth Amendment's Confrontation Clause and a unanimous United States Supreme Court decision dealing with the Fifth Amendment's' right against self-incrimination as applied to psychiatric evidence. A number of published Eleventh Circuit decisions involved non-constitutional issues under the Federal Rules of Evidence, including balancing probative value against prejudicial effect under Rule 403, authentication of audio and video …

Evidence, John E. Hall Jr., W. Scott Henwood, Alex Battey

Mercer Law Review

This year's Survey of evidence finds us in a unique position. The overhaul of the Georgia Evidence Code (Evidence Code) went into effect on January 1, 2013. Therefore, appellate cases continue to emerge that interpret and apply the former rules, providing insight and raising questions about how the new rules have changed the face of evidence in Georgia. This Survey highlights cases decided by the Georgia Court of Appeals and the Georgia Supreme Court between June 1, 2012 and May 31, 2013, that illustrate this tension between the old and new rules of evidence. These cases are presented alongside other …

Evidence, Marc T. Treadwell

Mercer Law Review

I. INTRODUCTION

During the survey year from January 1, 2009 to December 31, 2009, the United States Court of Appeals for the Eleventh Circuit continued its recent trend of limiting the number of its published opinions, a trend discussed in more detail in a previous survey. This Survey will address several unpublished-yet noteworthy-decisions. However, readers should bear in mind Eleventh Circuit Rule 36-2, which provides that "[u~npublished opinions are not considered binding precedent, but they may be cited as persuasive authority." Also note that the court's internal operating procedures suggest an even more limited role for unpublished opinions:

The court …

Crawford V. Washington And Davis V. Washington'S Originalism: Historical Arguments Showing Child Abuse Victims' Statements To Physicians Are Nontestimonial And Admissible As An Exception To The Confrontation Clause, Tom Harbinson

Mercer Law Review

Under Crawford v. Washington and Davis v. Washington, the Supreme Court has created a new interpretation of the right of confrontation that holds out-of-court testimonial statements inadmissible without cross-examination. In order to determine if statements for purposes of medical diagnosis and treatment should continue to be an exception to confrontation, this Article reviews the historical evidence cited by the Court. The Court's originalist analysis holds that the only exception for what the Court refers to as "testimonial statements" is the exception for dying declarations. This Article establishes that a significant number of confrontation exceptions existed for testimonial statements in …

Georgia's Witness Immunity Statute: Explication And Recommendations For Judicial Development, Roald Mykkeltvedt

Mercer Law Review

In 1975 the Georgia General Assembly enacted a comprehensive witness immunity statute' providing for a procedure to obtain the testimony of persons who refuse to testify on self-incrimination grounds. That procedure is summarized in the following excerpt from the act:

Whenever in the judgment of the Attorney General or any district attorney, the testimony of any person or the production of evidence of any kind by any person in any criminal proceeding before a court or grand jury is necessary to the public interest, then the Attorney General or the district attorney may request the superior court, in writing, to …

Expert Witnesses And The Federal Rules Of Evidence, James W. Mcelhaney

Mercer Law Review

Brainerd Currie was already a legend when he came to Duke from the University of Chicago. I was a third-year law student then and took his course in Conflicts in the spring of 1962—a dazzling intellectual display centered around the hard practicalities of complex litigation. But Currie was more than just a great teacher and scholar. Too busy to take a vacation ("How can you talk about taking a trip to Europe, McElhaney? I'm too busy to go to Europe, and you're going to be practicing. "), he had time to talk with us after class; to drink a cup …

A Party Need Not Show Prejudice Or Surprise To Impeach Its Own Witness, Robert R. Gunn Ii

Mercer Law Review

In Wilson v. State, the Supreme Court of Georgia unanimously held that a party may impeach the credibility of its own witness with that witness' prior inconsistent statement without showing that the testimony is a total surprise or affirmatively damaging to the party's case.

Bill Ray Wilson was convicted of murder and armed robbery on the basis of testimony from three prosecution witnesses. His case consisted solely of his sworn denial. The testimony of one prosecution witness was inconsistent with a previous written, sworn statement in which the witness had said Wilson had confessed to the murder in his …