Thursday, October 13, 2011
Georgia On My Mind: Supreme Court Of Georgia Looks To New Georgia Rules Of Evidence For Prior Consistent Statement Ruling
As I have previously noted, Georgia recently passed a Comprehensive Revised Evidence Code patterned on the Federal Rules of Evidence. This new Code will not take effect until 2013, but, as the recent opinion of the Supreme Court of Georgia in Stephens v. State, 2011 WL 4532671 (Ga. 2011), makes clear, this new Code is already having an effect on how Georgia courts interpret the existing Georgia Rules of Evidence.
In Stephens, Bradley Stephens was convicted of incest against his stepdaughter, following sexual abuse that began when the victim was five years old and continued until she was 16, when he impregnated her and took her to get an abortion. At trial, a witness for the prosecution testified, and, after defense counsel claimed that the witness' testimony was a recent fabrication, the trial court allowed the prosecution to admit the witness' prior consistent statement(s). Thereafter, over defense counsel's objection, the trial court gave the following pattern jury instruction on prior consistent statements:
Should you find that any witness has made a statement prior to trial of this case that is consistent with that witness's testimony from the witness stand and such prior consistent statement is material to the case and the witness's testimony, then you are authorized to consider the other statement as substantive evidence.
After he was convicted, Stephens appealed, claiming, inter alia, that the trial court erred in giving this instruction, and the Supreme Court of Georgia agreed (but found harmless error), concluding that
In recent years, the Court of Appeals has repeatedly said that the "better practice" is not to give an instruction on prior consistent statements....We now hold that an instruction on prior consistent statements should no longer be given except where the circumstances of an unusual case suggest that the jury may have the mistaken impression that it cannot consider a prior consistent statement as substantive evidence. For example, the jury might send a note during deliberations asking whether it can consider a prior consistent statement as regular evidence, or an attorney might make an improper statement in closing argument suggesting to the jury that a prior consistent statement is not a valid type of evidence. When a charge on prior consistent statements is needed because of such circumstances, the charge should be adjusted to address the issue that requires it. No such circumstances were present in this case, and so the Court of Appeals correctly determined that the pattern instruction should not have been given.
Importantly, the Georgia Supremes then pointed out that
It is also worth noting that a routine instruction on prior consistent statements is discouraged in federal practice,...and Georgia courts will soon be operating under a prior consistent statements rule that parallels Federal Rule of Evidence 801(d)(1)...
This analysis reveals two important things: (1) Georgia courts apparently will look to the Comprehensive Revised Evidence Code in reaching evidentiary conclusions even before that new Code takes effect; and (2) Georgia courts apparently will look to federal law in determining how to apply the Comprehensive Revised Evidence Code based upon its similarity to the Federal Rules of Evidence.