Atlanta Georgia Injury Attorney Robert J. Fleming provides useful trial evidence notes. Some of the topics include issues that have come up in his prior trials including how to make proper objections at trial, how to explain the objection to the Judge and jury in a way that clearly explains the basis for the objection in simple terms and how to effectively handle documentary evidence at trial. Common objections based on the evidence being argumentative, irrelevant, speculative, hearsay, insufficient foundation and calling for a narrative are also addressed. Mr. Fleming also covers how to authenticate many different types of evidence during a Georgia trial.
- When objecting on grounds that the opponent failed to lay sufficient factual foundation for evidence, the objecting party must specify what is missing. Sinkfield v. State 411 S.E.2d 68 (Ga. App. 1991); McDaniel v. D.O.T. 409 S.E.2d 552 (Ga. App. 1991); Coleman v. State, 124 Ga. App. 313, 183 S.E. 2d 608 (1971). Examples of lack of foundation are: (1) factual foundation for opinion testimony; (2) qualifications of an expert; (3) authenticating a document; (4) laying a foundation for a prior contradictory statement, which requires the following:
- If oral - Draw witnessess's attention to the time, place, person and circumstances 24-9-83.
- If written - Show the writing and ask witness if she recognizes or recalls it
- If deposition testimony - Simply refer to the deposition.
- If witness admits the prior statement then the statement and the writing are admitted into evidence. Duckworth v. State, 492 S.E. 2d 201 (Ga. 1997).
- If the witness denies, equivocates, or cannot recall the prior statement - Counsel may offer the statement into evidence to prove that the witness, in fact, made the statements. Boyd v. State 497 S.E. 2d 3 (Ga. App. 1998).
- ARGUMENTATIVE --Objection. It's improper to ask a witness to agree with your theory or argument. You're supposed to ask questions about the facts.
- IRRELEVANT --Objection. That has nothing to do with the things that this jury has to decide.
- SPECULATIVE --Objection. He's asking the witness to guess. Witnesses are supposed to tell us what they know, not speculate.
- HEARSAY --Objection. The witness should only be asked what he knows, not what somebody else told him.
- INSUFFICIENT FOUNDATION --Objection. Without more background, there is no way to tell whether this is reliable enough to even be considered, much less believed.
- NARRATIVE --Objection. He's asking the witness to give a speech instead of asking questions. The witness might accidentally say something improper and he shouldn't be put in this position.
- If evidence comes in - Object + Move to Strike
- If my evidence is not allowed - Make a clear offer of proof (cover all pertinent details of the offered evidence; explain its relevance and importance to the case; and mark the document for the record, it just doesn't go out with the jury) and state the specific legal basis for the admissibility of the evidence.
- It is not contrary to the best evidence rule that oral testimony of a fact in issue may by primary evidence thereof, although there is written evidence of the same fact, where the essential fact to be proved is neither the existence nor the contents of the writing, but the existence of the independent fact itself, to which the writing is merely collateral or incidental. In such a situation, the rule requiring production of original writings has no application. Emmett v. Regions Bank, 238 Ga. App. 455, 518 S.E. 2d 472 (1999).
Genuineness of Documents
- Can be made a preliminary ruling by the judge with instructions to the jury.
- When a party stipulates to admissibility, she can still challenge the reliability or truthfulness of evidence. Sisson v. State, 353 S.E. 2d 836 (Ga. App. 1987).
- A properly addressed and mailed letter is presumed to have been received. Crenshaw v. Georgia Underwriting Assoc., 414 S.E. 2d 915 (Ga. App. 1992).
- Failure to produce witnesses or other evidence that is available to a party creates a presumption against the merits of that party's case. O.C.G.A. 24-4-22.
- Evidence must relate to the issues being tried by the jury and bear upon them either directly or indirectly. Irrelevant matter should be excluded because:
- No probative force
- Carries danger of undue prejudice
- Any probative value would be cumulative to what the defendant is going to testify to.
- Prior acts are not probative of what took place on the date of the incident.
- Admission with limiting instruction would only exacerbate the situation.
Authentication of Evidence (Show the Evidence is What it is Claimed to be)
Whether any evidence is genuine is ultimately for the jury to decide, and thus evidence should not be excluded as lacking authentication, unless the foundation is legally insufficient to support a jury's finding that it was authentic.
- Medical Records- satisfied by Certificate of Authentication
- Voices- Witness can i.d. voice after foundation is laid that he is familiar with the speaker's voice and can recognize it, Taylor v. State, 42 S.E. 2d 926 (Ga. App. 1947), or other circumstantial evidence exists that points to identity.
- When the i.d. of the speaker is not relevant to the use of the evidence (i.e., when the statements are being made to prove the effects on the hearer, no foundation regarding the identity of the speaker is necessary. Boggus v. State, 222 S.E. 2d 686 (Ga. App. 1975).
- A person's subsequent conduct or statements that demonstrate that he was the speaker in the earlier conversation also would be admissible as circumstantial evidence of identity. Cannady v. Lamb, 247 S.E. 2d 500 (Ga. App. 1978).
- General rule is that communications by telephone are not admissible in evidence unless the identity of the party against whom the conversation is sought to be admitted is established by either direct or circumstantial evidence. When however, the circumstances are sufficient to present a jury question as to whether the person with whom the witness had a telephone conversation was in fact the party in question, the conversation is admissible. Stanger v. State, 102 Ga. App. 561, 161 S.E. 2d 898 (1960).
- While the person called may not be identified by name, it is sufficient it is sufficient to identify her as a representation of the organization called with sufficient authority to discuss the subject matter of the call. Such evidence is admissible as original evidence. Carrollton Fed. S & L v. Young, 165 Ga. App. 262, 299 S.E. 2d 395 (1983).
- It was deemed sufficient foundation that the witness testified to the fact that the defendant identified herself by name over the phone. Carroll v. First Nat. Bank of Barnesville, 106 Ga. App. 794, 128 S.E.2d 344 (1962).
- Where there is an issue whether a signature on a document was made by one of the parties, "[o]ther writings proved or acknowledged to be genuine may be admitted in evidence for the purpose of comparison by the jury." O.C.G.A. 24-7-7. The jury may form a judgment upon the genuineness of the handwriting or the identity of the writer. Gibson v. Gibson, 54 Ga. App. 187, 187 S.E. 155 (1936).
Authentication of Documents
- One can authenticate non-public records or a combination of several different methods, all designed to place some credible evidence before the jury that the document in question can fairly be attributed to a particular source. Gunter v. State, 256 S.E. 2d 341 (Ga. 1979). The jury ultimately decides whether the document is authentic. Mulkey v. State 270 S.E. 2d 816 (Ga. App. 1980).
- The fact that a party produces a document in response to RFP's may constitute an admission by conduct that the document is authentic, if the party producing the document claims any benefit under the document (i.e., if the party is asked to produce any documents that support his claim or defense to a particular matter, the parties production of the document dispenses with the necessity of proof of authentication).
- Only need to provide a witness who prepared or signed it. O.C.G.A. 24-7-4(5); Aikens v. State, 390 S.E. 2d 102 (Ga. App. 1990).
- Authentication of a document can be proved by circumstantial evidence external to the document itself. The issue is: Whether there is sufficient competent proof of the document's authenticity that a reasonable juror could find, using the appropriate standard of proof for the case, that the document is what it purports to be.