At the conclusion of a Georgia murder prosecution, the defendant was convicted for striking his wife over 100 times en route to strangling her to death. The accused not only had a history of physical attacks against that victim, but also upon other domestic partners. And trial proof showed that the defendant repeatedly battered one ex-girlfriend, and beat and raped another at gunpoint.
Ron Carlson
A central concern in the foregoing case was whether— and for what use— the defendant’s prior domestic assaults would be admitted into evidence. In countless prosecutions of this type, the evidentiary assessment over the admission of the defendant’s previous acts of domestic violence can dominate court proceedings.
Despite this fact, though, a criminal evidence law bill currently pending in Georgia’s General Assembly does not speak to the admissibility of an alleged domestic violence abuser’s past, similar misconduct. Instead, Georgia House Bill 478 strictly deals with revising Georgia’s arcane evidence rule covering the admission of expert opinion in criminal trials. HB 478, as such, leaves a host of other evidence law provisions conspicuously unaddressed.
The Preeminence of Evidence Law
Reforms in the rules of legal procedure are often far more impactful than those involving substantive laws. This is particularly true when it comes to rules of evidence, which dictate the two most important considerations facing any litigant: 1) What information juries will receive; and 2) How juries will be allowed to evaluate that proof.
Generally, evidence of a criminal defendant’s past misconduct is inadmissible. If allowed, prior bad acts evidence can only be considered for “non-character purposes,” such as, for instance, proving motive, intent, or lack of mistake or accident.
Mike Carlson
When it comes to sex crimes, however, the Federal Rules of Evidence allow for more incriminating evidence to be admitted. Decades ago, the U.S. Congress added evidence rules designed to admit a sex crime defendant’s earlier acts of sexual misconduct for “any matter that is relevant.” Georgia followed suit and adopted parallel provisions as part of Georgia’s evidence code in 2013.
What about cases involving allegations of domestic violence, child, elder, and special needs abuse? In these challenging situations, some jurisdictions have determined it necessary to embrace an expanded approach, analogous to those applicable to sexual offenses federally and in Georgia. California, for example, has enacted such rules for domestic violence, elder, child, and “dependent person” abuse trials.
HB 478’s Silence on Domestic Violence
Despite important and impassioned calls for raised awareness for victims and to end the scourges of domestic, child, elder, and special needs abuse and violence, HB 478 does not lead Georgia into the ranks of states which, as a matter of evidence law, have done so.
Significantly, as in sex crimes, victims of domestic, child, elder, and special needs abuse are often— and quite accurately— characterized as among those most vulnerable. Again, like sexual abuse, domestic violence is frequently the subject of expert testimony, the very topic that HB 478 addresses.
Other Evidence Rules to Consider
Of course, there are fundamental evidence law adjustments that would also improve Georgia state jurisprudence. For instance, refining Georgia Rule of Evidence 103 to encourage pre-trial resolution of evidentiary issues and eliminate time-wasting objections would considerably streamline trials. Identifying what proof will and will not be admitted in advance of trial would encourage informed settlement discussions and, thus, reduce burdens on a judicial system bracing for mass, post-COVID court re-openings.
Revising Georgia Rule of Evidence 803(18) to conform to the federal model would authorize the admission of scholarly material during the direct examination of expert witnesses. Georgia currently only allows for the use of learned treatises on cross-examination. Federalizing Georgia Rule of Evidence 803(18) would help produce enhanced usage of reliable text sources in a way that would minimize the need to call multiple experts at trial. This assists in leveling the playing field for parties who cannot afford retaining a battery of expert witnesses, while simultaneously increasing efficiency in court proceedings.
HB 478 is silent on these measures.
Lawmakers May Still Consider Evidence Law
As Georgia’s 2022 legislative session approaches, rising Peach State crime is a growing focus of media and legislative attention. To this point, the Oct. 24th installment of the Georgia Gang television program led with a story on increasing Georgia violent crime and Georgia State Senator John Albers’ committee studying it. Given evidence law’s influence over criminal prosecutions, perhaps revisions to Georgia’s evidence code will become part of this growing discourse.
By penning the foregoing, we have provided information on comparative and competing patterns for public consideration. And no criticism is leveled against the drafters, sponsors, or supporters of HB 478 herein.
That said, with both escalating crime and criminal evidence statutes currently before our legislative leaders, even a casual observer might well believe that broader evidence law reform could be advanced by those advocating for systemic improvements.
Ron and Mike Carlson are trial and appellate advocates, legal authors and lecturers who have taught law school courses in advanced evidence law. Their treatise, Carlson on Evidence, has been cited authoritatively in over 50 Georgia appellate court decisions. The opinions and positions expressed in this column belong to the Carlsons do not represent those of any organization or institution.
