evidence and admissible.” O.C.G.A.
§ 24-8-802 (2018).
Business records do not require
a qualifying witness and can now
contain opinions
Authentication of a business record
in Georgia used to require that a
qualified witness lay the proper
foundation. While the new rules
still allow for a witness to lay the
foundation, a certification can
be used in lieu of live testimony.
O.C.G.A. § 24-8-803(6) (2018). The
certification must state that it: (1)
“was made at or near the time of
the occurrence...;” (2) “was kept in
the course of regularly conducted
activity;” and (3) “was made by the
regularly conducted activity as a
regular practice.” O.C.G.A. § 24-9-
902(11)(a)-(c) (2018).
Business records can also now
contain opinions. As to business
records and opinions, in 2001, the
Supreme Court of Georgia stated
that a “document admitted under
the business records exception must
be redacted to exclude conclusions,
opinions, estimates, and impres-
sions of third parties not before the
court.” Turner v. State, 273 Ga. 340,
344, 541 (2001). The new code does
not require redaction, and in fact,
expressly allows business records to
contain these types of conclusions
or opinions. O.C.G.A. § 24-8-803(6)
(2018).
Hearsay exceptions
The old Georgia rules only allowed
for use of the “statement against
interest” hearsay exception if the
declarant was dead. The new rules
just require that the declarant be
“unavailable” (as defined in O.C.G.A.
§ 24-8-804) as a witness at trial-
the declarant need not be dead.
O.C.G.A. § 24-8-804(b)(3) (2018).
The new code added a forfeiture
hearsay exception. A witness’ hear-
say statements will still be admit-
ted if the witness is unavailable
at trial if the statement offered is
“against a party that has engaged
or acquiesced in wrongdoing that
was intended to, and did, procure
the unavailability of the declarant
as a witness.” O.C.G.A. § 24-8-804(b)
(5) (2018).
Conclusion
If you started law school after 2013,
there is a possibility you have run
into a seasoned attorney who some-
times still applies the old evidence
rules. Hopefully the above sum-
mary will give you the confidence
to point out the differences between
the rules so that you do not find
yourself in a “what is Res Gestae”
moment.
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