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).

If the statement, even when it contains an assertion, is relevant for another purpose, such as to explain conduct or for its effect on one who hears it, e.g., to show fear or to prove motive, intent or notice, it is admissible for such a non-hearsay purpose. Opposing counsel should request a limiting instruction, which must be given by the court upon such request. Also, any prior inconsistent statement of a testifying witness may be offered to impeach that witness, and it may be considered for its substantive value, O.C.G.A. § 24-8-801(d)(1)(A). In federal court, the prior inconsistent statement may be admitted for its substantive value only if it was made under oath and subject to cross-examination at a prior hearing or trial. Under the new Georgia rules, counsel confronting the witness may question the witness directly about its contents and need not first direct the witness’s attention to the circumstances of its making. The prior inconsistent statement of an out-of-court declarant is admissible only to impeach that declarant and not for its substantive value.

Under O.C.G.A. § 24-8-801(d)(2)(D), the new test for admissibility of an agent’s or employee’s statement requires that the statement be within the scope of the agency or employment relating to something she or he would know because of job duties and that it be made during the existence of that relationship. The trial judge makes the final decision on admissibility of the statement as a preliminary matter under the provisions of O.C.G.A. § 24-1-104(a). No longer must the statement have been one that the agent or employee was authorized to make by the principal or employer, A.A.L., Inc. v. Colonial Pipeline Co., 280 Ga. App. 237, 633 S.E.2d 560 (2006).

Under old Georgia law the issue of whether the agent or employee had such authority was for the jury to decide, considering direct or circumstantial evidence. Since authority will no longer be an issue, this change should allow for more agent or employee statements coming in at trial. The hearsay statement of an agent of the state in a criminal proceeding is not admissible against the accused, O.C.G.A. § 24-8-801(d)(2)(D).

Thankfully, res gestae and the unpredictability it produced have been eliminated in the new rules. New Georgia evidence practice looks to a combination of three rules, O.C.G.A. § 24-8-803(1) for present sense impressions, i.e., a statement made while the declarant was perceiving the event or immediately thereafter; 803(2) for excited utterances, i.e., a statement made while the declarant was under the stress of the excitement caused by the event, or 803(3) for statements of then existing mental, emotional or physical conditions relating to intent, plan, motive, pain or state of health, but not including memory or belief.

For example, the statement, “I’m going to the grocery store.” would be admissible, but the statement, “I’m gong to the grocery store with Tom.” would not be admissible to prove the declarant’s belief regarding Tom’s intent to go to the grocery store, but it would be admissible to prove the maker’s intent or plan.

Though not a per se hearsay issue, it is worth noting that under O.C.G.A. § 24-4-404(b) relating to similar transaction evidence, “bent of mind” and “course of conduct” have been eliminated. This is a significant legislative recognition of the general evidentiary principle that a person’s propensity to act is inadmissible character evidence. This should make the evaluation of the admissibility of this type of evidence more predictable and judicious, which will produce a result that recognizes the critical impact similar transaction evidence has on the fact finder.

Matters observed and contained in public records may be admissible. They must be those observed pursuant to a duty imposed by law as to which matters there was a duty to report. The new rules require that the question of admissibility of police reports be handled as public records under O.C.G.A. § 24-8-803(8)(A), not as business records. Under subparagraph (B), matters observed by police officers in connection with an investigation may not be admitted against the accused in a criminal case. Trustworthy factual findings under subparagraph (C) resulting from an investigation are admissible in civil cases and against the state of Georgia in criminal proceedings. Factual findings include opinions and conclusions of the investigator, even when he is not available to testify.

There are significant changes to the business records exception found in O.C.G.A. § 24-8-803(6). Acts, events, opinions, conclusions or diagnoses contained within the business record are admissible, to include those in medical records. The medical narrative provision found in old Georgia law at O.C.G.A. § 24-3-14 has been carried forward to the new code. But the usefulness of a medical narrative is diminished, because when a proper foundation and authentication are made the medical record itself is admissible.

The foundational requirements for business records are unchanged, but the process of laying the foundation and authentication is much different. Under the new code, authentication may be made by certification of the custodian of the records or one familiar with the records keeping procedure in lieu of live testimony. If the certification properly recites the foundational elements of O.C.G.A. § 24-8-803(6) as outlined in O.C.G.A. §§ 24-9-902(11) and (12), both requirements are satisfied, and the record may be admitted by the trial judge under O.C.G.A. § 24-1-104(a), employing a preponderance of evidence standard.

Co-conspirator’s statements under O.C.G.A. § 24-8-801(d)(1)(E) now require that the statement be made during the course of and in furtherance of the conspiracy. The contents of the statement need not be necessary to the success of the conspiracy but must be related to it in some way. The trial judge decides the issue under the authority of O.C.G.A. § 24-1-104(a). Old Georgia law found in O.C.G.A. § 24-3-5 required only that the statement be made during the pendency of the criminal project, not that it be related to or in furtherance of the conspiratorial objective.

Dying declarations will be allowed in civil cases, O.C.G.A. § 24-8-804(b)(2). Prior to the new code, dying declarations were admissible only in criminal homicide prosecutions, O.C.G.A. § 24-3-6. This exception applies even when the declarant actually survives.

Present recollection refreshed is addressed in O.C.G.A. § 24-6-612. When the witness uses it to refresh his or her memory while testifying at the hearing or trial, the adverse party now will be entitled to have the writing produced for inspection, to use it on cross-examination and to have portions of the document relating to the witness’s testimony introduced into evidence. If the writing is used to refresh recollection prior to trial, the procedure is up to the court’s discretion, guided by serving the interests of justice.

Old Georgia law, found at O.C.G.A. § 24-9-68, did not differentiate between present recollection refreshed and past recollection recorded. In the case of past recollection recorded under the new O.C.G.A. § 24-8-803(5), the required foundation remains essentially the same. The contents of the writing, consistent with the old practice, are read to the jury. The document itself does not go out with the jury to its deliberations due to Georgia’s continuing witness rule, see Tibbs v. Tibbs, 257 Ga. 370, 359 S.E.2d 674 (1987).

This discussion has focused on some of the changes to hearsay law under the new Georgia Evidence Code. It has looked only at the tip of the hearsay iceberg. In order to be able to get hearsay evidence before the fact finder that should be admitted and keep evidence out that is unreliable and violates the right to confrontation, there is no substitute for a mastery of the new rules and case law in this thorny area of evidence practice.