How Georgia’s Adoption of the Federal Rules of Evidence Has Impacted Criminal Defense Work and DUI Defense

The Georgia Rules of Evidence Modernized: 

Back in 2013, Georgia saw its biggest revision to their rules of evidence by becoming the 43rd state to modify their evidence code and to base it off of the Federal Rules of Evidence. These changes have had a serious impact on the criminal law community. Changes to Res Gestae, Character, and Prior Bad Acts have aided defense lawyers to keep prejudicial evidence out of the sensitive ears of the jury with the ease of the new evidence rules. While other evidence rules, such as rules concerning Conspiracy and Statements Against the Interest, have impeded the ability of criminal defense attorneys to prevent tainting the jury with evidence weighed down by their prejudicial impact.

Serving as a practicing attorney for more than twenty years, I have seen many changes to criminal practice and procedure and the impact the new evidence code brought to Georgia's justice system. The adoption of the new code cleared up heavily debated evidentiary disputes within our system, as well as articulating rules that had previously been regarded as vague and used with great deference by the individual judge.

One of the most significant changes the federal regulations have brought to Georgia courts would be the introduction of a definitive guideline to how judges should conduct preliminary hearings for confessions and the testimony of defendants. Judges are now guided to hear objections outside the presence of the jury when necessary to prevent imparting prejudicial information that can impact their final judgment of guilt or innocence. The determination of relevance is a better-suited determination for the jury; the new rules allow judges to leave issues of importance up to the jury. The purpose of these rule changes is “to eliminate unjustifiable expense and delay in the courtroom as well as promote the development of evidence, to the end of ascertaining the truth and securing a just determination.”

Finally, The Balancing Test is Defined:

After decades of inconsistent case law, the new rules of evidence finally provide judges with guidance for assessing the prejudicial effect of relevant evidence under Rule 403. The new rules introduced a balancing test that had been heavily debated and inconsistently relied upon in prior case law. The new rules implemented the use of disallowing relevant evidence when the prejudicial effect is not substantially outweighed by the probative nature of the evidence. This new approach is the crux of most evidentiary disputes. For the first time in Georgia law, the rules of evidence contain the precise formula courts have needed in determining the exclusion of prejudicial evidence.

Character Evidence:

The new rules on character evidence have been revised to narrow the admissibility of character evidence. The changes in 2013 only allow “pertinent” character evidence as opposed to “any” character evidence. Before 2013, criminal defendants had the ability to bring forth any character evidence to show general traits of good character to the jury. The Federal Rules required a stricter requirement that only character traits pertinent and relevant to the charged crime can be established at trial. Georgia has since adopted that same admissibility to promote a more fluent and effective court process.

What character traits are pertinent to the charged crime? Pertinent characteristics are unique to the individual crime. For example, fraud and theft would allow the pertinent trait of honesty to be proffered at trial. Proof of such character trait would be limited to a general opinion of that trait by a character witness. Testimony or evidence of specific instances is not permitted by the new or old rules of evidence. The limitation on character evidence is to prevent superfluous evidence making it to the jury.

Similar Transactions (Prior Bad Acts):

When jurors hear evidence of a defendant's prior bad acts of a similar transaction, it usually leads to the particular persuasion the prosecution needs for a conviction. The conviction is theoretically based on the past actions instead of the charged crime, according to evidence admissibility expert, Paul S. Milich, in his Courtroom Handbook on Georgia Evidence. The new rule on prior bad acts was an attempt to balance protecting defendants from prosecutors use of prior bad acts as a powerful tool while maintaining the justifications of the necessity of proof to seek and find the truth; left to the interpretation of jurors.

Prior bad acts, similar to the charged crime, are admissible only to show motive, state of mind, opportunity, intent, plan or knowledge. This rule, as described by Milich, is the appropriate balance of protecting defendants and seeking fair truth. The rules are heavily used to prevent prior bad acts from being entered into evidence for the purpose of proving propensity to commit a certain crime. Prior to 2013, the rules merely required a showing of an attempt to show “bent mind” when providing prior bad acts. This was more or less an automatic admissibility for prior bad acts or crimes.

In DUI cases, this change in the rules of evidence has been helpful for defense lawyers because there is a higher requirement for prosecutors to get the prior DUI evidence in at trial. In order to show prior DUIs, the prosecution has to display the necessity of proving motive, state of mind, opportunity, knowledge, intent, or plan. The probative use of that showing is then balance against the prejudicial effect of that evidence making it to the jury. Criminal defense benefits from this stricter approach now that prior similar bad acts are no longer an automatic admission.

Statements Made Out of Court:

When multiple people are a party to a crime, statements made to and from one another, or to third parties, can be used against them during trial if these declarations were made during the time of the conspiracy and in furtherance of the conspiracy. The new evidence code explicitly requires that any evidence presented at trial under the conspiracy rule must be “in furtherance” of the criminal conspiracy. Before the 2013 change, that requirement had been heavily debated. The language was not directly included in the evidence code; the addition of “in furtherance” has evolved from case law which lawmakers wrote it into the new rules for ease and clarity for the courts.

Statements Against the Interest has also seen a drastic change in the evidence code that became substantially more flexible in its admissibility, as the new code was adopted. Before the 2013 code, statements made against the interest of the party were limited to statements made when the declarant was dead. The new code amended this rule to more broadly include any statement against the party when the witness is unavailable to testify. Unavailability includes death but also a defendant who invokes the 5th amendment right not to testify at their trial; a witness invokes certain privileges not to testify, illness or other legal unavailability. This new rule has opened the door for substantially more out of court statements to be admitted into evidence. Given the unavailability of the witness, this rule does provide attorneys an avenue to tell the whole story through missing testimony. 

The End of Res Gestae In Georgia:

Res Gestae statements have been completely disposed of by the new rules of evidence. Res Gestae is a vague doctrine for an exception to hearsay. Res Gestate is latin for the meaning of all things surrounding and connected with a happening. This hearsay exception was understood to include all statements made right after a crime had happened. In its place, the 2013 code made use of particularized rules of the Federal Code's 803(1)-(3) which govern the use of statements surrounding criminal activity. (1) allows the use of statements under a hearsay exception if they were present sense impression of describing the happenings. (2) uses the exception to use excited utterance as admissible hearsay. (3) uses statements that were the declarant's then existing mental or emotional state of mind. Georgia went from a generalized theory on the exception to hearsay evolve to become a series of rules that were articulable and easy for courts to follow when the rules were revised in 2013.

Expert Testimony:

When a DUI case requires an Accident Reconstruction Expert or Medical Expert the rules made a serious impact on when and how they can testify. Experts no longer have to be questioned in the form of a hypothetical question. They can now use facts and data relating to the case in order to lay foundation for their expert opinion. An expert may base their testimony on hearsay that would otherwise be inadmissible, however that inadmissible hearsay cannot be brought to the ears of the jury unless it can be shown that the probative value substantially outweighs the prejudicial effect it will have on the jury's ability to reasonable base a conclusion on said evidence. In order to use these inadmissible hearsay facts, it must be shown to be reasonably relied upon in the field or industry of that expert. This provides the court with a balance of protecting the trial from hearsay and allowing experts to make sound expert opinions before the jury.

In Summary:

The new evidence code brings Georgia from an arcane set of rule subject to interpretation throughout our 159 counties to a uniform system used throughout the United States.  This reform has been and will be well received.