Evidence Commons^™

Developing A Coherent Theory Of The Structure Of Federal Rule Of Evidence 703, Edward J. Imwinkelried

Mercer Law Review

Some commentators have suggested that the American judicial hearing is becoming trial by expert. As recently as 1974, the Jury Verdict Reporter for Cook County, Illinois, listed only 188 regularly testifying experts? Today, there are more than 3,100-a 1,540 percent increase. In the late 1980s, the Cook County state courts averaged one expert per trial. In some areas, the trend is even more pronounced. In the early 1990s, the Rand Corporation released a study of the use of experts in trials in California courts of general jurisdiction. Expert witnesses appeared in eighty-six percent of the trials studied, an average of …

Evidence, Marc T. Treadwell

Mercer Law Review

1. Objections
2. Relevancy
3. Privilege
4. Witnesses
5. Opinion Testimony
6. Hearsay
7. Authentication

Hewitt V. Kalish: Qualifying As An "Expert Competent To Testify" Under O.C.G.A Section 9-11-9.1, Richard T. Hills

Mercer Law Review

In Hewett v. Kalish, plaintiff, Hewett, sued Kalish, a podiatrist, for the negligent treatment of her tarsal tunnel syndrome condition. As required by Official Code of Georgia Annotated section 9-11-9.1, plaintiff filed with her complaint the affidavit of an orthopedic surgeon, Dr. Alan D. Davis. The affidavit set forth Dr. Davis' professional credentials, his hospital affiliations, and his curriculum vitae. The relevant portion of the affidavit provided:

I am... competent to testify as an expert on behalf of [plaintiff] in an action for professional malpractice arising out of the diagnosis, care and treatment of [plaintiff] from January 1988 through …

Evidence, Marc T. Treadwell

Mercer Law Review

In recent past evidence surveys, the author has suggested, perhaps presumptuously, that the Eleventh Circuit has markedly decreased its level of scrutiny of district court evidentiary decisions. It appears that in most cases, the Eleventh Circuit is willing to defer broadly to the discretion afforded district judges in evidentiary rulings. As a result, the number of Eleventh Circuit decisions in which evidentiary issues played a predominant part has decreased. Decisions rendered by the Eleventh Circuit during the current survey period suggest that the court is allocating its resources to evidentiary issues in which appellate guidance is broadly needed rather than …

Evidence, Marc T. Treadwell

Mercer Law Review

Previous survey articles have discussed the need for precise objections to preserve an issue for appeal. Sometimes, however, even the most precise objection may not be sufficient. In Garner v. Victory Express, Inc., plaintiff objected to defendant's counsel's comment during closing argument on the lack of any evidence indicating that defendant was unsafe or careless. Apparently, defense counsel was referring to the absence of evidence of prior negligence on the part of defendant's driver. The trial court overruled this objection. Plaintiff argued that because he was precluded from proving defendant's negligence by his prior driving record or from proving …

Wallace V. Dunn Construction Co.: Defining The Role Of After-Acquired Evidence In Federal Employment Discrimination Suits, Hugh Lawson Iii

Mercer Law Review

In Wallace v. Dunn Construction Co. the Eleventh Circuit Court of Appeals faced an issue of first impression in the circuit: the role of after-acquired evidence in actions arising under federal employment discrimination statutes, namely Title VII of the Civil Rights Act of 1964 and the Equal Pay Act. The court held that after-acquired evidence cases in which an employer discovers evidence constituting a permissible reason for discharging an employee after that employee has already been discharged for an impermissible reason are distinguishable from mixed-motive cases in which an employer discharges an employee for several reasons, some permissible and …

Evidence, Marc T. Treadwell

Mercer Law Review

For seven consecutive years, the Mercer Law Review has been kind enough to ask the author to review Eleventh Circuit evidence decisions. While one may question the wisdom of the Review's annual return to the same well, seven years of reading every Eleventh Circuit decision involving evidentiary issues has allowed the author to note what may loosely be called "trends" in the Eleventh Circuit's decisions. No claim can be made that these observations are based on statistical or empirical data; they derive solely from the author's sense of the Eleventh Circuit's direction and predilections over the past seven years.

First, …

Evidence, Marc T. Treadwell

Mercer Law Review

In five previous Georgia and Eleventh Circuit evidence survey articles, the author extolled the virtues of the proposed Georgia Rules of Evidence.' These rules roughly tracked the Federal Rules of Evidence and would replace Georgia's existing evidence code which is, in reality, not a code at all but rather a jumble of disjointed statutes found in several different titles of the Official Code of Georgia Annotated and countless court decisions. The proposed rules were first introduced in the General Assembly in 1989 and were approved by the Senate in 1990 and 1991 but have never been reported out of the …

Evidence, Marc T. Treadwell

Mercer Law Review

For the past several years, the State Bar of Georgia has lobbied vigorously for the adoption of a new Georgia Evidence Code based upon the Federal Rules of Evidence. Few would dispute that the existing Georgia Evidence Code, which really is not a code at all but rather an amorphous amalgam of disjointed statutes and thousands of judicial decisions, is in need of revision. Apparently, however, there is considerable dispute regarding exactly what changes should be made.

The proposed Georgia Rules of Evidence is the product of an intensive study by the State Bar of the deficiencies of the existing …

Evidence, Marc T. Treadwell

Mercer Law Review

The most significant development in Georgia evidence law during the survey period, as in the past two survey periods, was the continued effort to adopt a new Georgia evidence code based upon the Federal Rules of Evidence. The State Bar of Georgia is firmly committed to the adoption of the Georgia Rules of Evidence and has vigorously lobbied for the proposed rules in each of the past two sessions of the Georgia General Assembly. Although no organized opposition has arisen to the proposed rules, the rules have yet to be adopted. In the 1991 session of the General Assembly, as …

Evidence, Marc T. Treadwell

Mercer Law Review

The Georgia lawyers among the readers of this Article likely are somewhat familiar with efforts over the past several years to adopt a new Georgia Evidence Code based upon the Federal Rules of Evidence (the "Rules"). The Georgia Evidence Code is Sorely in need of revision. It can be argued that there is no Georgia Evidence Code as such. Indeed, Georgia lawyers must grapple with an amorphous amalgam of disjointed statutes and thousands of judicial decisions that constitute our body of evidence law.

Evidence, Marc T. Treadwell

Mercer Law Review

The most significant development in Georgia evidence law during the survey period was the continued effort to adopt a new Georgia evidence code based upon the Federal Rules of Evidence. As reported in last year's survey article, the proposed Georgia Rules of Evidence (the "proposed Rules") were introduced during the 1989 session of the, general assembly but did not reach the floor of either chamber. The proposed Rules were again introduced in the 1990 session and promptly received unanimous Senate approval. The Rules were then referred to the House Judiciary Committee where they remained until the end of the session. …

United States V. Williams: The Good Faith Exception To The Exclusionary Rule, Patricia Walker Bass

Mercer Law Review

In an opinion with two alternative holdings, the Fifth Circuit Court of Appeals decided en banc United States v. Williams on July 31, 1980. The court first held that, because Ms. Williams' arrest was legal, the incriminating evidence found as a result of the search incident to arrest could be used against her at trial. Alternatively, the court ruled that evidence should not be excluded when it is discovered by officers acting in good faith despite the fact that they are mistaken in thinking that their actions are lawful. This note focuses on the second holding that purports to establish …

Evidence, Hardy Gregory Jr.

Mercer Law Review

There are a number of devices and techniques commonly used for the purpose of producing information to be used as evidence. These devices and techniques are the tools of investigators. The appellate courts of Georgia dealt in an interesting way with several of these tools in the past year, namely, polygraph tests, bloodhounds and blood alcohol tests.

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 …

Exclusionary Rule Need Not Be Applied In Federal Habeas Reviews Of State Convictions, Jann Johnson

Mercer Law Review

In Stone v. Powell, the U.S. Supreme Court held that if a state "has provided an opportunity for full and fair litigation of a Fourth-Amendment claim, a state prisoner may not be granted federal habeas-corpus relief on the ground that evidence obtained in an unconstitutional search or seizure was introduced at trial."

Respondent Powell was convicted of second-degree murder in a California state court. A police officer had found the murder weapon on Powell during a search incident to his arrest for violation of a vagrancy ordinance, and the officer's testimony was admitted at trial over Powell's objection. Powell …

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 …

Evidence, William H. Agnor

Mercer Law Review

More cases than usual concerning one or more points of evidence were decided during this survey period. Only those cases that seemed significant or of general interest have been discussed here.

'Materiality' Limits Prosecutors' Duty To Disclose Exculpatory Evidence To Defense, James K. Knight Jr.

Mercer Law Review

In United States v. Agurs, the U.S. Supreme Court held for the first time that criminal prosecutors have a constitutional duty to voluntarily disclose exculpatory evidence to a defendant even when the defense doesn't request such evidence. The Court, however, limited the scope of this new obligation by narrowly defining the category of material evidence to which it applies. It held that the duty arises only when the exculpatory evidence is so material that had it been disclosed, its use at trial would have created a reasonable doubt of the defendant's guilt that did not otherwise exist.

Respondent Agurs …

Scienter Required For Civil Liability Under Sec Rule 10b-5, William H. Buckley

Mercer Law Review

In Ernst & Ernst v. Hochfelder, the U. S. Supreme Court held that an action for civil damages cannot be maintained under §10(b) of the Securities and Exchange Act of 1934 and Securities and Exchange Commission Rule 10b-5, unless there is an allegation of the defendant's intent to deceive, manipulate or defraud. Thus, some element of scienter is required, and liability cannot be imposed for negligent conduct alone.

The suit arose following exposure of a fraudulent securities scheme perpetrated by Leston B. Nay, president and principal stockholder of First Securities Company of Chicago (First Securities), a member of the …

Evidence--Attorney-Client Relationship--Client's Identity Privileged, Robert B. Lipman

Mercer Law Review

The United States Court of Appeals for the Fifth Circuit in In re Grand Jury Proceedings held that a client's identity, fee and bonding arrangements may be privileged from disclosure by his attorney to the grand jury when such protection is necessary to preserve the client's privileged motive.

Evidence--Government Advisory Materials Exception To Hearsay Rule, Walter Prince Rowe

Mercer Law Review

In Muncie Aviation Corp. v. Party Doll Fleet, Inc. the United States Court of Appeals for the Fifth Circuit held that advisory materials promulgated by a federal agency, but not having the force and effect of law, are admissible as an exception to the hearsay rule when such materials are relevant, necessary as a matter of practical convenience, and otherwise trustworthy.

Evidence, William H. Agnor

Mercer Law Review

No abstract provided.

The Special Demurrer As A Discovery Device In Georgia, Edward E. Dorsey

Mercer Law Review

Under Georgia procedural rules, the special demurrer has two dissimilar functions, the first being to compel the striking or withdrawal of extraneous matter, and the second being to compel the demurree to plead, or to plead more fully, the facts relied upon to support his cause of action or defense, or the theory upon which it is based.

The diversity of these two functions, coupled with the further rules which prohibit direct appeals from nisi prius rulings on special demurrer, but which permit reversal of an eptire proceeding where such a ruling is erroneous,' have for many years contributed to …

Evidence, Thomas F. Green Jr.

Mercer Law Review

One of the paradoxes of the law is presented by the large number of decisions discussing evidence points and the small number which allow these points to affect the appellate court's judgment. A reversal solely on the basis of erroneous admission or exclusion seldom occurs. Perhaps this is as it should be. In this field the appellate courts lay down the principles for the trial courts to follow but usually do not interfere with the trial judge's application of those principles. Sometimes, however, the appellate courts are too ready to reverse. In Henderson v. State the charge was murder and …

Evidence, Eli M. Spark

Mercer Law Review

More Georgia appellate court decisions were rendered on points of evidence during the period under consideration than on any other single subject, with the exception only of civil practice and procedure and criminal law and procedure. As problems of evidence arise in matters relating to all fields of law, this is quite understandable. An effort will be made to classify and review these decisions and to comment on some of them or to point out their significance. Although there has been no revolutionary departure from established doctrines and principles, we may find significance in the mode and scope of their …