Hearsay rule change in new Georgia Evidence Code
Most bright middle school students probably have a working knowledge of the concept of hearsay, simply as gossip. “He said she said” does not mean the statement is true.
Hearsay as a legal rather than merely social concept is part of the law of evidence. The Georgia rule on hearsay will change on January 1st, when the new Evidence Code becomes law.
The new Georgia Evidence Code, based more or less on the Federal Rules of Evidence, will go into effect on January 1, 2013. The new Evidence Code was a long-time project of the State Bar. Sponsored in the State Senate by then-Senator Nathan Deal in 1990, it hit a roadblock with then-House Speaker Tom Murphy who did not want to be required to learn and practice under a new set of evidence rules. The project was revived when Speaker Murphy lost re-election, and was passed by the legislature and signed into law by Governor Nathan Deal in 2010, when I was president-elect of the State Bar, and will take effect next month.
Under old Georgia evidence law which remains in effect until January 1, 2013, inadmissible hearsay is illegal evidence and has no probative value even when there is no objection,
Under the new law, O.C.G.A. § 24-8-802, which goes into effect on January 1, 2013, when inadmissible hearsay is not objected to, the objection will be waived and such evidence will legal and may support the result of trial.
A general definition of hearsay is evidence that does not derive its value solely from the credibility of the witness but rests mainly on the veracity and competency of another person. O.C.G.A. § 24-8-801(c) defines hearsay as any statement other than one made by the declarant while testifying in the trial or hearing offered to prove the truth of the matter asserted. A “statement” of a declarant is an oral or written expression in words or nonverbal conduct intended as an assertion, i.e., the declaration of a specific relevant fact.
In Georgia civil cases, the admissibility of silence or acquiescence by a party to a statement which, if untrue, the party would be expected to deny will be decided preliminarily by the trial judge under O.C.G.A. § 24-1-104(b). The trial judge should admit the evidence if a reasonable jury could find that a response was called for if the statement was untrue. If admitted, the judge will instruct the jury on this matter for their ultimate determination as to the weight, if any, this evidence will be given.
For a comprehensive summary of hearsay under the new Evidence Code, see Steve Harper’s article, “Changes affecting hearsay under the new Georgia Evidence Code,” in the Fulton County Daily Report.
Ken Shigley is immediate past president of the State Bar of Georgia and current chair of the board of the Institute for Continuing Legal Education in Georgia. Lead author of Georgia Law of Torts: Trial Preparation & Practice (West, 2010-12), he has an AV Preeminent rating in Martindale-Hubbell Law Directory and Bar Register of Preeminent Lawyers, and double board certification in Civil Trial Advocacy and Civil Pretrial Advocacy from the National Board of Legal Specialty Certification (formerly National Board of Trial Advocacy). In addition, he is listed in Super Lawyers (Atlanta Magazine), Legal Elite (Georgia Trend) and Who’s Who in Law (Atlanta Business Chronicle). In the American Association Justice, he is secretary of the Motor Vehicle, Highway & Premises Liability Section and a board member of the Trucking Litigation Group.