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Univ. of South Carolina School of Law

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Friday, April 22, 2011

Georgia On My Mind: Georgia Senate Overwhelming Votes To Approve Evidence Code Based On Federal Rules Of Evidence

As of 2010, forty-two states had passed state rules of evidence similar to the Federal Rules of Evidence. On January 1, 2011, that number became 42 as the Illinois Rules of Evidence went into effect. Earlier this week, on the last day of the 2011 legislative session, the Georgia Senate voted 50-3 to pass a Comprehensive Revised Evidence Code patterned on the Federal Rules of Evidence that would make Georgia state #43. Governor Nathan Deal is now expected to sign the bill into law, which would take effect on January 1, 2013. So, what led to the creation of this new Evidence Code, what will it replace, and what are the remaining states?

You can find most of the answers to these first two questions in Evidence, 27 Ga. St. U. L. Rev. 1 (2010), by Daniel Hendrix, Sofia Jeong, and Warren Thomas. As the authors note, 

The last major revision of the Georgia Evidence Code, Title 24, was enacted in 1863. Since that time, judicial systems and processes have evolved faster than the Georgia Rules of Evidence (GRE). Electronic documents, communications, telephone records, and photography have developed since the creation of the GRE, but the rules do not always explicitly accommodate these types of evidence.

(As an example, you can take a look at my recent post about the Supreme Court of Georgia's treatment of a computer printout under the Best Evidence Rule)

The authors then note that "[t]he first concerted effort to move away from the current GRE to the FRE occurred when the Evidence Study Committee was formed in August 1986." But, as so often happens in these types of endeavors, the project moved in fits and starts, dying a thousand deaths in different committees and later facing "strong opposition from solicitors and prosecutors." Then,

During the summer of 2009, Representative {Wendell] Willard continued the push toward adopting the FRE. Acknowledging the concerns that prosecutors raised during the previous legislative session, Willard included Brian Fortner, the head of the Georgia Association of Solicitors-General, on the Study Committee to revise the bill. In an effort to address these concerns related to the bill, the Study Committee discussed at length the differences between the GRE and  the FRE. The Study Committee analyzed the rules section by section, carefully vetting the bill in several stages--at the Bar level, at the legislative study level, and during the sessions--to ensure that the rules were written in a way that would prevent unexpected surprises or "time bombs." The revisions made during these meetings resulted in the version of the bill introduced in the 2010 session.

Soon thereafter, the Georgia House passed the bill by an overwhelming margin, the Senate has now followed suit, and the Governor is set to give the bill his imprimatur.

So, how much of Georgia's new Evidence Code will track the Federal Rules of Evidence, and how much will consist of Georgia deviations? According to the authors of Evidence, "'The vast majority of the bill mirrors the FRE; in fact, the bill has been characterized as '98% the Federal Rules and 2% of some other, whether it is Georgia law or some hybrid of the two.'" It seems that the main differences between Georgia's new Evidence Code and the Federal Rules of Evidence are (1) that there rape shield rules are somewhat different; and (2) that Georgia allows for more extensive cross-examination -- "thorough and sifting cross-examination" -- than Federal Rule of Evidence 611(b).

So, what are the remaining 7 states? (1) California, (2) Connecticut, (3) Kansas, (4) Massachusetts, (5), Missouri, (6) New York, and (7) Virginia. Which is likely the next domino to fall? I don't know? I was contacted by some folks in Missouri based upon my work on the Illinois Rules of Evidence, and they noted that the Missouri Constitution's authorization of the Supreme Court of Missouri to promulgate rules specifically excludes rules of evidence and that a legislative enactment is unlikely. I served as a visiting professor last semester at my alma mater, William and Mary, last fall, and after reading up on all of the state's struggles with trying to enact rules of evidence, I don't see codification coming down the pipe any time soon. From my time working in New York, I saw a similar reluctance to codify.

The Supreme Judicial Court of Massachusetts famously refused to adopt the Proposed Massachusetts Rule of Evidence in 1982 and has shown no signs of wavering in its position. California and Kansas both have codified rules of evidence based upon the Uniform Rules of Evidence, and I don't see them jumping tracks to the Federal Rules of Evidence any time soon. Finally, Connecticut finally codified its rules of evidence in 2000, but it specifically refused to model its Evidence Code after the Federal Rules of Evidence. Therefore, i'm not sure that any of the remaining states is a good candidate to become state #44.

-CM

http://lawprofessors.typepad.com/evidenceprof/2011/04/georgia-evidence-code-httpwwwlexologycomlibrarydetailaspxg8f11cbe6-6813-4a60-a079-b1a78677af6a-httpwwwlegisg.html

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