Sunday, March 28, 2010
Simply The Best: Court Of Appeals Of Georgia Notes That Satisfying Best Evidence Rule Doesn't Satisfy Rule Against Hearsay
Similar to Federal Rule of Evidence 1002, OGCA Section 24-5-4(a), Georgia's Best Evidence Rule, provides that "[t]he best evidence which exists of a writing sought to be proved shall be produced, unless its absence shall be satisfactorily accounted for." As the recent opinion of the Court of Appeals of Georgia in McKinley v. State, 2010 WL 1136202 (Ga.App. 2010), makes clear, however, just because a party satisfies the Best Evidence Rule does not mean that it satisfies the rule against hearsay.
In McKinley, Marcus McKinley was convicted of robbery by intimidation and hijacking a motor vehicle. McKinley allegedly committed these crimes on June 18, 2007, and his alibi was that at the time of the crimes, he was at the Dekalb County Recorder's Court resolving outstanding traffic citations. In rebuttal, the State introduced, as State's Exhibits 21 and 22, copies of two of the traffic citations, certified by the clerk of the DeKalb County Recorder's Court, that were stamped "FTA," with "FTA" meaning failure to appear.
The State claimed that these copies were admissible as copies of exemplifications of public records transmitted by facsimile. The trial court agreed, but the Court of Appeals of Georgia later reversed, finding that this showing merely satisfied the Best Evidence Rule and not the rule against hearsay. According to the appellate court,
In this case, the State introduced Exhibits 21 and 22 to prove the truth of the statement of the unidentified person who stamped "FTA" on the citations (presumably the clerk of the DeKalb County Recorder's Court) that McKinley failed to appear for his court date. Despite McKinley's strenuous objection to the documents as hearsay, the State argued only the issue of authentication and never identified any exception to the rule prohibiting hearsay that would authorize admitting the documents. The trial court then admitted the exhibits "pursuant to the provisions of OCGA Section 24-5-20" without any determination that they fell within an exception to the rule prohibiting the use of hearsay, saying “I think [McKinley's] other objections go to weight rather than threshold admissibility." This was error.
Now, the court did note that the copies of the traffic citations likely could have been admissible under the business records (I would think public records) exception to the rule against hearsay, but it found that the problem for the State under this exception was that the State did not call any witnesses to lay the proper foundation for admission of these citations.