Transcript Evidence Issues in Domestic Violence Cases

Evidence Issues in Domestic
Violence Cases
The Impact of the New Evidence Code on
Common Evidence Issues
Vicky O. Kimbrell
Georgia Legal Services Program
Dalton, Georgia
October 22, 2012
Domestic Violence Cases and the
New Evidence Code
Reasons that Domestic Violence Must be
Taken Seriously by the Community, the
Bench, and the Bar
2011 Georgia DV Fatality Review Annual
Report
www.gcfv.org
132 victims died in 2010
480 victims died from 2003-2008
6 from Whitfield County
 One in 4 women in the United States are victims of domestic
violence at some point in their lives.2
 A child's exposure to the father abusing the mother is the
strongest risk factor for transmitting violent behavior from one
generation to the next. American Psychological Association
Presidential Task Force on Violence and the Family, APA, 1996
 Battered women are 15 times more likely to be at risk for
alcoholism than nonbattered women, and 9 times more likely
to be at risk for drug abuse. (Source: Attorney General Task
Force on Family Violence)
 Approximately one-fifth of patients treated in hospital
emergency rooms are treated for injuries inflicted by someone
with whom they have an intimate relationship. (Source: Bureau
of Justice Statistics)
 Domestic violence costs employers over $5 billion annually in
the form of increased health care costs, absenteeism, reduced
productivity, and related security costs. (Source: Bureau of
National Affairs)
Typical Cases Where DV
Evidence Issues Arise
-- Civil
TPOs
Divorces
Custody cases
Criminal Cases
 Spousal Immunity
Family Violence Act
O.C.G.A. § 19-13-1 thru 4
 Standards:
 Ex parte: probable cause exists to establish that family
violence has occurred in the past and may occur in the
future.
 “Court may order such temporary relief ex party as it
deems necessary to protect the petitioner or a minor
from violence.” O.C.G.A. § 19-13-4
Recent/Relevant Cases
Lewis v. Lewis, 316 Ga. App. 67 (2012) –
Trial Court required that the violence be
reasonably recent. “There is simply is no
requirement that any past act of family
violence alleged in the petition be
‘reasonably recent.’”
Custody Standards After
Finding of FV O.C.G.A. §19-9-3
 Best Interest factors (P) - evidence of family
violence, sexual, mental or physical abuse
 (a)(4) when judge has made finding of FV: The
judge shall consider as primary the safety and
well-being of the child and of the parent who is the
victim of family violence ;
 Court shall consider perpetrator’s history of
causing physical harm
In Awarding Visitation –
O.C.G.A. § 19-9-7
 Visitation by a parent who has committed acts of
family violence:
 A judge may award visitation to parent who has
committed family violence “only if the judge finds
that adequate provision for the safety of the child
and the parent who is the victim can be made.”
 Conditions: attend FVIP, abstain from alcohol,
mj, pay fees to defray costs of supervision,
prohibit overnight visitation, bond, any other
condition necessary to provide for safety.
Common Evidentiary Issues
in DV Cases
Hearsay
Definition - Objection
Public and Business Records
 Police Reports
 Medical Reports
 Photos
Social Media - Facebook
Spousal Privilege
Hearsay and Hearsay Exceptions
 O.C.G.A § 24-8-801 (c) Definition:
Hearsay means a statement, other than one
made by the declarant while testifying at trial
offered in evidence to prove the truth of the
matter asserted.
Hearsay is no longer illegal evidence
with no probative value –
Major Change
 Unless an objection is made: it is waived and
hearsay evidence shall be legal and admissible
O.C.G.A. § 24-8-802
O.C.G.A § 24-8-803 Hearsay Rule
Exceptions
1 Present Sense Impressions
8. Public records and reports
2. Excited Utterance
(A) Activities of the public office
3. Then existing mental, emotional, or
physical state.
(B) Matters observed pursuant to duty
imposed by law as to which there was a
duty to report, matters observed by le in
connection with an investigation
4. Statements for purpose of medical
diagnosis or treatment
9. Records of vital statistics
10. Absence of public record
5. Recorded Recollection
11. Records of Religious organization
6. Records of regularly conducted
activities (A) Activities of the public
office
12. Marriage baptismal certificates
7. Absence of entry in records
13. Family Records
14. Records of documents affecting an
interest in property
14. Records of documents
affecting an interest in property
15. Statements in documents affecting
an interest in property
16. Statements in ancient documents
17. Market reports and commercial
publications
18 Learned treatises
19.Reputation concerning personal or
family history
20. Reputation concerning boundaries
or general history
21 Reputation as to character
22. Judgment as to personal family or
general history or boundries
Records - Public and
Business Records Exception
 Public Records Exception to Hearsay- § O.C.G.A. 24-8803(8)
 The following shall not be excluded by the hearsay rule, even though
the declarant is available as a witness:
(8) Public Records and reports. Except as otherwise provided
by law, public records, reports, statements or data
complications in any form of public offices setting forth:
 (a) The activities of public office:
[Mundane Records like: drivers license suspension
notice; voters registration, ]
 (b) Matters observed pursuant to duty imposed
by law as to which matters there was a duty to
report [excluding against the accused in criminal
proceedings] matters observed by [law
enforcement] in connection with an investigation.
 (c) In civil proceedings [and against the state in criminal
proceedings], factual findings resulting from an
investigation made pursuant to authority granted by law,
unless the sources of information or other circumstances
indicate lack of trustworthiness.
Police Reports in DV cases –
Major Change
Are police reports now admissible without the
testimony of the officer?
Pre-2013: narrative portion of the police
report were inadmissible (Brown v State, 274
Ga. 31 (2001))
After 2013: LE Report: “Officer drove up and
saw Ms. Jones sitting on the step crying with
bruises.” = “matter observed pursuant to a
duty imposed by law”
 “Officer talked to the neighbor who said he saw Mr. Jones
leaving the scene with a hammer.”
 Hearsay within hearsay – still a problem
 Must find a hearsay exception for the internal hearsay.
 Officer drove up and the neighbor was screaming, “Mr.
Jones just drove down the street with blood on his
shirt.” - Admissible
 Officer saw the neighbor screaming = matter observed
 “Mr. Jones just drove down the street with blood on his
shirt = excited utterance.
Business Records Exception
O.C.G.A § 24-8-803(6)
 The following is not excluded by the hearsay rule:
 Unless the source indicates a lack of
trustworthiness (and subject to Chapter 7)
reports, records or data of events, conditions,
opinions or diagnoses if (a) made at or near time
of the act, condition, opinion or diagnosis (b)
made by or from information by a person with
personal knowledge and a business duty to
report; (c) kept in the course of regularly
conducted business (d) regular practice of
business to make report as shown by testimony
of the custodian or certification.
Medical Records
 O.C.G.A. § 24-8-826 Upon the trial of any civil
proceeding…any medical report in narrative form,
signed dated by [physician, etc.] shall be admissible
and received in evidence insofar as it purports to
represent history, diagnosis, treatment, . . .by the
person signing the report the same as if that person
were present and testifying as a witness…provided that
such report and intention to introduce such report shall
be provided to the AP 60 days prior to trial. Statement
of qualification may be included and the opinion of the
person signing the report as to the etiology of the injury
may be included. AP may object on any ground other
than hearsay within 15 days of being provided with the
report. AP shall have the right to cross examine the
person signing the report.
O.C.G.A § 24-3-14
Allows properly qualified statements of
opinion, medical diagnosis
Allows proponent to use a certification in
lieu of live witness to lay foundation
Trial Judge has discretion to reject
business records if untrustworthiness.
Authentication - Major Change
 New Rules make the authentication of evidence
(documents, things, photos, voices easier in three
ways)
 1. Lenient Standard for Admissibility: Evidence
sufficient to support a finding that the matter in
question is what its proponent claims. It is a
question for the trier of fact whether the evidence
is authentic
2. All the rules for authenticating all types of
evidence in one place. O.C.G.A. § 24-10-1008
3. New rules relax some requirements for
authenticating.
Authenticating phone calls is easier:
Notarized documents are self authenticating
.
Foundation by Certification
O.C.G.A. § 24-9-902(11), (12)
Procedure and contents of certification in
lieu of a live witness to lay foundation for
the business records exception
Must provide written notice to A/Ps and
make the underlying record and
certification available for inspection
sufficiently in advance – only private
records, not public records can be certified
under this rule.
Certification does not have to be sworn
Best Evidence Rule Applies to
Documents, Recordings, and
Photographs
 O.C.G.A. § 24-10-1001
To prove the contents of a writing,
recording, or photograph the original writing
recording or photograph shall be required.
 O.C.G.A. § 24-10-1001
The contents of a public record of a document
…may be proved by duplicate, certified as
correct. A witness may not testify to what an
official public record state without producing a
certified copy of the record.
Copies
O.C.G.A. § 24-10-1003
A duplicate shall be admissible to the same
extent as an original unless:
A genuine question is raised as to the
authenticity of the original
It would be unfair to admit the duplicate in
lieu of the original
Burden/Proof on objector to show a
genuine issue of untrustworthiness or
unfairness.
Spousal Privilege
“O.C.G.A. § 24-5-503 (HB 711, effective 1.1.2013)
 (a) A husband and wife shall be competent but shall not be
compellable to give evidence in any criminal proceeding for or
against each other.
 (b) The privilege created by subsection (a) of this Code section or
by corresponding privileges in paragraph (1) of subsection (a) of
Code Section 24-5-501 or subsection (a) of Code Section 24-5-505
shall not apply in proceedings in which:
 (1) The the husband or wife is charged with a crime against the
person of a child under the age of 18, but such husband or wife
shall be compellable to give evidence only on the specific act for
which the accused is charged;
 (2) The husband or wife is charged with a crime against his or her
spouse;
 (3) The husband or wife is charged with causing physical damage to
property belonging to the husband and wife or to their separate
property; or
 (4) The alleged crime against his or her current spouse occurred
prior to the lawful marriage of the husband and wife."
 O.C.G.A. § 24-5-503.
 (a) A husband and wife shall be competent but shall not be
compellable to give evidence in any criminal proceeding for or
against each other.
 (b) The privilege created by subsection (a) of this Code section
or by corresponding privileges in paragraph (1) of subsection (a)
of Code Section 24-5-501 or subsection (a) of Code Section 245-505 shall not apply in proceedings in which:
 (1) The the husband or wife is charged with a crime against the
person of a child under the age of 18, but such husband or wife
shall be compellable to give evidence only on the specific act for
which the accused is charged;
 (2) The husband or wife is charged with a crime against his or
her spouse;
 (3) The husband or wife is charged with causing physical
damage to property belonging to the husband and wife or to
their separate property; or
 (4) The alleged crime against his or her current spouse occurred
prior to the lawful marriage of the husband and wife."