Law Commons^™

Evidence, John E. Hall Jr., W. Scott Henwood, Krysta Grymes

Mercer Law Review

In the decade following the adoption of Georgia’s new evidence code, courts throughout the state have analyzed and ruled upon complex issues involving the interpretation of the new rules, along with how to reconcile the new rules with the vast body of existing precedent. This Article discusses continuing interpretations of Georgia’s evidence rules in Title 24 of the Official Code of Georgia Annotated (O.C.G.A.), for the period of June 1, 2022 through May 31, 2023, specifically delving into: (1) the admissibility of layperson opinion evidence; (2) the admissibilityof “other acts” evidence; and (3) judicial interpretations of “unfairprejudice” in relation to …

Evidence, W. Randall Bassett, Nikolas L. Volosin

Mercer Law Review

In its 2022 term, the United States Court of Appeals for the Eleventh Circuit issued several opinions on evidence. The opinions covered evidentiary issues ranging from admitting statements by criminal defendants under Miranda, the admission of expert and lay opinion testimony, the use of character evidence under Federal Rule of Evidence 404, and the admission of hearsay evidence based on exceptions under Rule 803. The discussion below explores these evidentiary issues and how the Eleventh Circuit addressed them in its 2022 term.

You Shall Not Pass! Georgia Court Of Appeals Narrows The Admissibility Of Prior Acts Character Evidence Under Georgia Evidence Rule 404(B), Hannah Farthing

Mercer Law Review

The common law rules of evidence prohibited the use of a defendant’s “bad character or prior, unrelated misconduct” to show in a criminal trial that the defendant was more likely to have committed the charged crime. Today, however, the accused’s prior crime or prior acts are admissible in trial so long as the evidence is relevant to some issue other than proving the accused acted in accordance with his character. Although the rule manages to keep out entirely unrelated evidence of the accused’s criminal character, many broad exceptions to the rule still lie in place allowing the prosecution to sneak …

“Hey, Google, What Are The Elements Of Homicide By Vehicle In The First Degree?”: The Supreme Court Of Georgia Reinforces The Prohibition On Extrajudicial Information Considered By A Jury In Criminal Trials, Savannah Hall

Mercer Law Review

In a criminal trial, the presentation of evidence and the instruction of law to the jury are of crucial importance to ensure that a person is only convicted based upon sound understandings of the factual and legal framework under which they were charged. The complexities surrounding the rules of evidence are in place so that jurors are only allowed to consider the facts and testimony permissible under the rules of evidence, meaning it is of utmost importance for the jury to consider solely those things which a judge deems admissible, relevant, and helpful to understanding the case. However, given the …

Evidence, John E. Hall Jr., W. Scott Henwood, Krysta Grimes

Mercer Law Review

Georgia’s judicial system has continued to grapple with the novel Coronavirus (COVID-19) for more than two years since the Honorable Harold D. Melton, former Chief Justice of the Supreme Court of Georgia,
first issued the Order Declaring Statewide Judicial Emergency on March 14, 2020. That order was extended fifteen times before finally terminating on June 30, 2021.

Seemingly in response to the world of uncertainties created by COVID-19, Georgia appellate courts took the opportunity to provide some additional interpretation and explanation to various aspects of Georgia’s new Evidence Code. This Article highlights some of the continuing interpretations of Georgia’s evidence …

You Can’T Simply Say “No!” Almighty Ceo: Georgia’S View On The Apex Doctrine And Discovery Abuse, W. Warren Hedgepeth

Mercer Law Review

Discovery is the process that allows litigants to gather information from the opposing party in a civil lawsuit. Discovery practices differ among states, and each state’s discovery laws generally determine (1) the scope and limits of what information can be gathered, (2) how it is gathered, and (3) when it is gathered. Depositions are included in discovery methods and allow parties to ask the deponent questions relating to the case. Depositions are not only expensive but can be disruptive, especially to high-level corporate executives whose time and dedication to their companies should be their primary focus. In some jurisdictions, corporate …

Evidence, W. Randall Bassett, Val Leppert, Lauren Newman Smith

Mercer Law Review

In its 2021 term, the United States Court of Appeals for the Eleventh Circuit issued several important and precedential opinions on a number of evidentiary topics. For example, in two opinions, the court considered the totality of the evidence to determine whether admission of testimonial hearsay implicated the Sixth Amendment’s Confrontation Clause or was instead harmless error. The court also twice addressed whether a suggestion to the jury that a defendant’s silence was substantive evidence of his guilt violated the defendant’s Fifth Amendment rights.

Additionally, the Eleventh Circuit issued several opinions concerning lay witness and expert testimony. In two opinions …

Inevitable Change To Inevitable Discovery: The Eleventh Circuit’S New Standard Of Proof For Cases Addressing The Inevitable Discovery Exception To The Exclusionary Rule, Hannah Pressley

Mercer Law Review

The inevitable discovery doctrine is an exception to the rule that evidence obtained by the government in violation of the Fourth Amendment will be excluded at trial. Under the inevitable discovery doctrine, illegally obtained evidence will be admissible at trial if the government can establish that it would have discovered the evidence even if the Fourth Amendment violation had not occurred. In United States v. Watkins, the United States Court of Appeals for the Eleventh Circuit, sitting en banc, addressed the following question: what is the standard of proof that the government must meet to show that illegally obtained …

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 …

Evidence, John E. Hall Jr., W. Scott Henwood, Leesa Guarnotta

Mercer Law Review

The 2020 Coronavirus (COVID-19) pandemic brought with it many firsts, including a year-long moratorium on civil and criminal jury trials. As of June 2021, many counties across the state expected continued stays of civil jury trials. Nevertheless, Georgia’s appellate courts continued to develop Georgia’s evidence laws in the eighth year since the implementation of Georgia’s new Evidence Code. This Article discusses the developing evolution of the new Georgia Evidence Code, Official Code of Georgia Annotated (O.C.G.A.) Title 24, by addressing developments of Georgia’s evidence rules from the period of June 1, 2020, through May 31, 2021. Specifically, this Article addresses: …

Evidence, W. Randall Bassett, Val Leppert, Lauren Newman

Mercer Law Review

In its 2020 term, the United States Court of Appeals for the Eleventh Circuit issued several important and precedential opinions on a number of evidentiary topics. For example, in four published opinions, the court considered whether certain evidence was “testimonial” to determine whether its admission would implicate the Sixth Amendment’s Confrontation Clause. The court also addressed whether a defendant on federal supervised release faces a “classic penalty situation,” thereby deeming any confession compelled in violation of the Fifth Amendment, when a probation officer asks him to answer questions that would reveal he had committed new crimes.

The Eleventh Circuit additionally …

Evidence, John E. Hall Jr., W. Scott Henwood, Leesa Guarnotta

Mercer Law Review

Even after the seventh year since the implementation of Georgia’s new Evidence Code, Georgia’s evidence rules continue to evolve as appellate courts face new issues and delve into more nuanced areas of the rules. This Article details some of this evolution of the new Georgia Evidence Code, Official Code of Georgia Annotated (O.C.G.A.) Title 24, by addressing developments of Georgia's evidence rules from the period of June 1, 2019, through May 31, 2020. Specifically, this Article addresses (1) limitations on the attorney‑client privilege; (2) admissibility of witness testimony as it relates to late‑identified witnesses, witness competency, and co‑conspirator statements; (3) …

Evidence, W. Randall Bassett, Val Leppert, Elijah T. Staggers

Mercer Law Review

In the 2019 term, the United States Court of Appeals for the Eleventh Circuit issued several opinions deciding evidentiary issues. Those opinions span a broad range of topics including constitutional limitations on admissible evidence, expert testimony, the scope of certain hearsay exceptions, and various other evidentiary rules. This article looks back at the Eleventh Circuit's 2019 term to highlight and analyze keynote decisions on those issues.

Evidence, John E. Hall Jr., W. Scott Henwood, Leesa Guarnotta

Mercer Law Review

In the sixth year since the implementation of Georgia’s new Evidence Code, the Georgia Supreme Court must still remind lower courts and litigators to rely upon the new Code and its subsequent case law when addressing evidentiary issues arising after 2013. This Article highlights some of the continuing changes to Georgia’s evidence rules based on the new Georgia Evidence Code, Official Code of Georgia Annotated (O.C.G.A.) Title 24. This Article period spans from June 1, 2018 to May 31, 2019. Specifically, this Article addresses: (1) the consequences of straying from the new Code; (2) new interpretations of Rule 404(b); and …

Is There A Georgia Supreme Court, Problem? Analyzing The Georgia Supreme Court’S New Peculiar Approach Towards Breathalyzers And Implied Consent Law, Brian Fussell Jr.

Mercer Law Review

Alcohol and criminal behavior often accompany each other as anyone with any experience with the justice system (or intoxicated people in general) can attest to. A significant percentage of the population would probably say their worst decisions and mistakes came about while under the influence of booze or other intoxicants, and crime statistics would back this up. Alcohol-related crime statistics in the United States compiled by AlcoRehab show around 500,000 cases of alcohol related violence every year and also demonstrate that an incredible 86% of homicides and 60% of sexual abuse or rape cases were committed under the influence of …

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 …

Evidence, W. Randall Bassett, Val Leppert, Harris K. Howard

Mercer Law Review

The United States Court of Appeals for the Eleventh Circuit's 2017 term included important precedential opinions on a number of evidence topics. For example, in three published cases, the court again followed its trend of deferring to trial courts on the use of expert testimony, affirming all three in published opinions. The court also considered the interplay between a defendant's Sixth Amendment right to an effective cross-examination and the United States District Court for the Southern District of Florida's authority to limit the scope of cross-examination.

The court offered few significant opinions regarding the Fifth Amendment right against self-incrimination. However, …

Lyrics For Lockups: Using Rap Lyrics To Prosecute In America, Briana Carter

Mercer Law Review

Bob Marley once sang, "I shot the sheriff, but I did not shoot the deputy." Yet, he never went to jail for shooting that sheriff (possibly because he did not shoot the deputy). Instead, this line became known as the starting phrase of one of his most popular songs. While it may make sense to some why Marley's lyrics were art and not a confession to shooting his hometown sheriff, in some states, an artist's lyrics can be used as evidence to prosecute. More specifically, states have differed on the admissibility of a rap artist's lyrics as evidence for prosecution. …

The Romberg Imbalance: Mitchell V. State Upsets The Equilibrium Of Admissible Field Sobriety Test Results In Georgia, Eric F. Kramer

Mercer Law Review

In Mitchell v. State, a unanimous Georgia Supreme Court held that the State must provide a scientific foundation for the Romberg Balance test (Romberg test) before its results are admissible against a defendant in DUI cases. To satisfy the standard set by the supreme court in Harper v. State, the State must show that a scientific procedure has reached a "stage of verifiable certainty" to produce reliable results. Additionally, the State must show that the procedure was "substantially performed ... in an acceptable manner." The trial court acts as the gatekeeper by determining the admissibility of a scientific …

Evidence, John E. Hall Jr., W. Scott Henwood, L. Witt Carmon Ii

Mercer Law Review

Following the adjustments to Georgia's Evidence Code on January 1, 2013, Georgia courts have developed significant case law interpreting various changes from the old code. This year's survey period marks the fourth year since the landmark alterations to the Georgia Evidence Code, Official Code of Georgia Annotated (O.C.G.A.) Title 24 took effect. Addressed in this year's Article are cases spanning from June 1, 2016 to May 31, 2017. Specifically, this Article addresses the following: (1) Significant developments regarding the admissibility of evidence ascertained by or maintained through technology; (2) Special rules of admissibility tied to crimes of sexual misconduct or …

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.

Evidence, W. Randall Bassett, Val Leppert, Stephen A. Mccullers

Mercer Law Review

The 2016 term of the United States Court of Appeals for the Eleventh Circuit included important precedential opinions on a number of evidence topics. For example, in four cases the court considered what evidence constitutes "testimonial out-of-court statements" that are precluded by the Sixth Amendment's Confrontation Clause unless the declarant is unavailable and the defendant has a prior opportunity for cross-examination. The court also considered the interplay between a defendant's Sixth Amendment right to an effective cross-examination and the district court's authority to limit the scope of cross-examination.

The court issued two published opinions of importance regarding the Fifth Amendment …

Evidence, John E. Hall Jr., W. Scott Henwood, Jacque Smith Clarke

Mercer Law Review

This year represents the third full survey period during which the "new" Georgia Evidence Code, Official Code of Georgia Annotated (O.C.G.A.) title 24, is in effect. These new rules took effect on January 1, 2013. The rules conform in large part to the Federal Rules of Evidence and have continued to change the face of evidence law in Georgia, which continues to develop from last year. This Survey highlights cases decided by the Georgia Court of Appeals and Georgia Supreme Court between June 1, 2015 and May 31, 2016 that have made an impact on evidence law in Georgia. This …

Evidence, W. Randall Bassett, Val Leppert, Stephen A. Mccullers

Mercer Law Review

The 2015 term of the United States Court of Appeals for the Eleventh Circuit included precedential opinions on a variety of important evidentiary issues. Several Eleventh Circuit cases, as well as a key decision from the United States Supreme Court, further explored the contours of the Confrontation Clause. The Eleventh Circuit also considered a number of cases regarding the admissibility of expert testimony at trial. These cases seem to continue the Eleventh Circuit's recent trend of applying greater scrutiny to lower court decisions excluding expert evidence, while applying a more deferential standard when the lower court allowed expert evidence.

Also …

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. …

Evidence, John E. Hall Jr., W. Scott Henwood, Jacque Smith Clarke

Mercer Law Review

This year represents only the second full survey period in which the "new" Georgia Evidence Code, Official Code of Georgia Annotated (O.C.G.A.) title 24, takes effect. These new rules took effect on January 1, 2013. The rules conform in large part to the Federal Rules of Evidence and continue to change the face of evidence law in Georgia. This Survey highlights cases decided by the Georgia Court of Appeals and the Georgia Supreme Court between June 1, 2014 and May 31, 2015 that have made an impact on evidence law in Georgia. This year's Article provides insight into the courts' …

Evidence, W. Randall Bassett, Val Leppert, Stephen A. Mccullers

Mercer Law Review

The United States Court of Appeals for the Eleventh Circuit's 2014 term featured several interesting opinions addressing the admissibility of evidence. For example, the court tackled two issues of first impression analyzing constitutional rights against the admission of evidence. In one case, the Eleventh Circuit decided whether the Confrontation Clause applies to evidence used by a district court in determining jurisdiction over the offense in a pretrial hearing. In another case, the court developed a rule to determine when an adverse inference jury instruction is warranted after a nonparty invokes its Fifth Amendment right to remain silent in a civil …

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, John E. Hall Jr., W. Scott Henwood, Jacque Smith Clarke

Mercer Law Review

This year represents the first full survey period' in which the "new" Georgia Evidence Code, title 24 of the Official Code of Georgia Annotated (O.C.G.A.), takes effect. These new rules took effect on January 1, 2013. The rules conform in large part to the Federal Rules of Evidence and have continued to change the face of evidence law in Georgia. Appellate cases are now providing guidance and direction on the courts' interpretation of the rules, and these cases affect litigants' strategies. This Survey highlights cases decided by the Georgia Court of Appeals and the Georgia Supreme Court between June 1, …

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 …