LEGAL MINUTE
Georgia’s “new” evidence code:
a summary for new lawyers
By Casey Holloway
Cushing, Morris, Armbruster & Montgomery LLP
Georgia’s “new” evidence code
went into effect on January 1, 2013.
In September of 2016, while at
a Mock Trial competition, my
partner objected to the admis-
sibility of some evidence, on the
basis of hearsay. We had rehearsed
the objection (and expected re-
sponse) several hundred times
by this point so we were stunned
when the judge responded, “Over-
ruled. Res Gestae.” My partner and
I looked at each other and though,
as if silently to say, “What is Res
Gestae?” Had we learned Geor-
gia’s old evidence code, we would
have known that Res Gestae was
an ancient rule in Georgia that was
eliminated with the passage of the
new evidence code. Even though
the new rules went into effect in
2013, it is possible to run into at-
torneys who mix up the rules or
judges who may be tempted to
rely on these older principles, so
it can be useful to know some of
the key distinctions between the
two codes.
Res Gestae
Res Gestae means “things done.”
Under Georgia’s old evidence
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November 2018
code, “[d]eclarations accompa-
nying an act, or so nearly con-
nected therewith in time as to be
free from all suspicion of device
or afterthought, [were] admissible
in evidence as part of the res ges-
tae.” O.C.G.A. § 24-3-3 (2010). The
practical effect of Res Gestae was
inclusivity-statements made ei-
ther at the same time or near an
act were admitted into evidence.
Georgia’s new rules establish three
distinct hearsay exceptions. The
first exception is for statements
that are made contemporane-
ously (or immediately thereafter)
with the declarant’s perception
of the events described. O.C.G.A.
§ 24-8-803(1) (2018). The second
exception concerns excited utter-
ances, or statements “relating to a
startling event or condition made
while the declarant was under the
stress of excitement caused by
the event or condition.” O.C.G.A.
§ 24-8-803(2) (2018). The third
exception concerns statements of
the declarant’s then-existing state
of mental, emotional, or physical
condition. O.C.G.A. § 24-8-803(3)
(2018).
Copies are acceptable
Under Georgia’s old Best Evi-
dence Rule, you had to either
produce the original or account
for the original’s nonproduction
before you could use a copy of a
document. Now, as long as there’s
no issue with authenticity and it
wouldn’t be unfair to admit a copy,
copies are admissible to the same
extent as originals. O.C.G.A. § 24-
10-1003 (2018).
Hearsay is no longer illegal
Before the new code went into
effect, hearsay was considered
“illegal” evidence-even if admit-
ted without objection. According
to the Georgia Supreme Court,
hearsay was “not only inadmis-
sible but wholly without proba-
tive value, and its introduction
without objection [did] not give
it any weight or force whatever in
establishing a fact.” In re Burton,
271 Ga. 491, 494 (1999). The new
rules; however, are not forgiving of
missed objections. Under the new
rules, “if a party does not properly
object to hearsay, the objection
shall be deemed waived, and the
hearsay evidence shall be legal