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Backers of a bill to revamp Georgia’s 148-year-old rules of evidence say it is gaining enough traction to pass the Legislature this session, more than two decades after a state senator named Nathan Deal first proposed it. House Bill 24 would modernize the code that dictates what evidence is allowed in Georgia courts by adopting many federal rules and deleting antiquated exceptions, according to the State Bar of Georgia, which is pushing hard for the bill. The bill has garnered six sponsors, including Majority Whip Edward Lindsey, R-Atlanta, and the chairman and vice chairman of the House Judiciary Committee, Reps. Wendell Willard, R-Sandy Springs, and Mike Jacobs, R-Atlanta. “I believe this year is the charm,” bar lobbyist Thomas M. Boller told the Judicial Council of Georgia, which is supporting the move, during its quarterly conference on Jan. 21. “I would like to see Gov. Deal sign the bill he first introduced to the Senate some 20 years ago.” Supporters also say they are hopeful the governor and House Speaker David Ralston, R-Blue Ridge, will give the bill an extra push because of their backgrounds as attorneys. A Deal spokesman said the governor had not seen the latest version of the bill. Ralston could not be reached Friday. Jacobs is confident the bill will pass, saying, “It appears all the important players are aligned to get it done.” “I think this year, things will move more smoothly,” he added. “The Senate Judiciary Committee has more cooperative leadership.” The first bill to overhaul evidence rules was introduced by Deal in the Senate in 1989, but it didn’t pass out of the House Judiciary Committee. Other bills were introduced and defeated in 1991, 2009 and 2010, according to the bar. “For years there was resistance from older attorneys who didn’t want to learn the new rules, like [the late House Speaker] Tom Murphy,” said John R. “Jack” Martin, a member of the Georgia Association of Criminal Defense Lawyers’ legislative committee. “But I think we’re past that now.” The 2010 session was the closest the changes have come to fruition. The measure passed the House of Representatives and the Senate Judiciary Committee but died in the Senate Rules Committee. Parties on both sides chalk up the defeat to timing. Jacobs said that the bill languished in the Senate Judiciary Committee until the chairman, Sen. Preston Smith, was replaced by Sen. Seth Harp late in last year’s session. Harp allowed a vote, and the bill moved forward by a 6-5 vote. (Smith and Harp are no longer in the Senate, having lost bids for statewide office.) “But it was too late in the process,” Jacobs added, for the bill to get a vote in the full Senate. Thomas M. Byrne, chairman of the bar’s rules of evidence study committee, said the current code needs a rewrite because it is vastly outdated and so full of holes that much of how evidence rules are interpreted is based on case law. “The last time there were updates to the Code of Evidence was in 1863, and Georgia was on vacation from the United States,” said Byrne, a Sutherland litigation partner. “The language is almost right out of Dickens.” A summary of the changes to the rules of evidence, prepared by Georgia State University law professor Paul S. Milich for the bar, says changes include: • Replacing the rule that says hearsay is illegal evidence and allows parties to challenge verdicts resting on hearsay testimony with one that would allow a fact finder to base a decision on hearsay if no one objected to the hearsay at trial. • Ending the use of similar transactions, or previous actions, to prove a defendant had a “bent of mind” to commit a crime. However, there would be exceptions, such as for DUI cases. • Eliminating a provision that allows some questions of admissibility to be left up to the jury rather than the trial judge. • Updating the rules regarding business records, possibly making it easier to enter medical records into evidence. • Mandating that statements by co-conspirators be in furtherance of the conspiracy in order to be admissible. • Rectifying the rules governing expert testimony so that criminal trials follow the same rules used in civil cases. • Clarifying that statements made during plea discussions with the prosecution are not admissible. The federal rules were enacted in 1975, and 42 other states since have adopted them including all those surrounding Georgia, according to the State Bar. To help garner support over the last two years, the State Bar rounded up prosecutors, defense attorneys and clerks to participate in joint meetings of the House and Senate so they could weigh in. “There were some compromises back and forth—some things that help prosecutors and some things that help the defense,” Martin said. “We’re not happy with every part, but we think, as a general matter, it’s a good idea for us to move toward something in line with the federal rules yet keeping some of the unique evidentiary traditions of Georgia.” Specifically, Martin pointed to the rule that “sets no limit to the scope of cross examination” as one the defense lawyers fought to keep. Martin said the association also supports the changes because law students are learning federal rules in school, and many firms don’t like training new associates on Georgia’s code. In previous years, district attorneys voiced concerns with certain changes included in the legislation, such as the barring of similar transactions evidence to prove “bent of mind,” but the exception for DUI cases mollified them. Kenneth W. Mauldin, the district attorney for the Western Circuit and president of the Georgia District Attorneys Association, said the group is taking a neutral position. “We’re not going to oppose it and we’re not going to support it,” he said. “Could we become something other than neutral at some point? If other changes are made to it, then we’ll express that. We’ll just have to see.” The Judicial Council of Georgia and the Council of Superior Court Judges have thrown their support behind House Bill 24. Northeastern Circuit Superior Judge Kathlene F. Gosselin, president of the Council of Superior Court Judges, said the proposed overhaul would give judges clarity on the evidence rules. “There are updates that will bring us in line with the rest of the country, as well as several sections that will make an exception, for instance, more clear,” she said. “That would make research much less complicated.” Still there is work ahead as the State Bar says it is researching a few lingering concerns. The Council of Superior Court Clerks raised one recently about whether a provision in the bill could be interpreted to mean clerks’ offices would have to offer blank subpoenas online, which they say could lead to an abuse of the system. But bar representatives say they are confident the concerns can be addressed in time and aren’t dealbreakers. “I’m personally optimistic,” Byrne said. “I don’t see any reasons the bill shouldn’t pass. It’s been vetted to almost a microscopic level after lo all these many years.” Staff Reporter Kathleen Joyner can be reached at [email protected]

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