EvidenceProf Blog

Editor: Colin Miller
Univ. of South Carolina School of Law

Tuesday, June 24, 2008

Georgia Rule: Supreme Court of Goergia Hears Oral Arguments On Alleged "Secret Rule" By Magistrate Judges

As an Atlanta Journal and Constitution story correctly notes, courts don't often hear cases pitting a district attorney against a lower court, but that is exactly the scenario with which the Supreme Court of Georgia was presented yesterday in Magistrate Court DeKalb County et al. v. Fleming.  So, what led to the showdown?

Last year, a man stood accused of shooting at two police officers.  The man was unable to make bond and thus secure his release, but he was able to secure a preliminary hearing in the Magistrate Court of DeKalb County to determine whether there was probable cause to continue holding him.  At that hearing, which was held last May, DeKalb District Attorney Gwen Keyes Fleming called only the investigating detective to testify about what he had been told, rendering his testimony hearsay.  Presiding Magistrate Judge Kathy Dorough found that this "testimonial" hearsay was insufficient to continue holding the defendant but did offer to continue the hearing to a later time so that the prosecution could produce the testimony of the two officers who were shot at.  Fleming refused, claiming that she thought that the hearsay testimony was sufficient, and Dorough responded by dismissing the charges and freeing the defendant.

In response, Fleming sued the judges of the Magistrate Court of DeKalb County, claiming that Judge Dorough refused to give proper weight to the officer's testimony and that the judges as a whole have an improper policy prohibiting them from binding over a case on a finding of probable cause based solely on hearsay.  Fleming thereafter got the case transferred to a court in Rockdale County, which agreed with her.  This ruling then prompted the magistrate judges to appeal to the Georgia Supremes.  Here are the arguments of both sides:

According to Fleming, the "case is about power," with the judges' "self-created hearsay evidentiary rule" flying in the face of, inter alia, the Supreme Court of Georgia's opinion in Gresham v. Edwards, 644 S.E.2d 122 (Ga. 2007).  Fleming claimed that this self-created rule can be adduced from an interoffice memorandum from th e court and that it has a detrimental effect "on valid criminal charges, on victims, and on the community." 

Meanwhile, the judges denied that they had crafted a "self-created hearsay evidentiary rule."  Moreover, they claimed that the Rockdale court was wrong to rule that they lacked the discretion to require some non-hearsay evidence before binding the case over to superior court for trial.  They claimed that such a finding would prohibit them from doing their job, under which they have "not only the right, but the duty" to dismiss charges at the preliminary stage if in their "discretion and judgment, the burden of proof necessary to establish probable cause has not been met by admissible and credible evidence."

During oral arguments yesterday, it seemed that the Supreme Court Justices were weighing 3 options (in addition to the possibility that they would dismiss because Fleming lacked the authority to sue he judges).  They could:

     -order the magistrate judges to treat hearsay as legal evidence, which can be sufficient to continue holding a defendant unless the truthfulness of the testimony is in doubt;

     -tell Keyes Fleming the magistrate judges have the authority to treat hearsay testimony as they see fit; or

     -go further, as suggested in a friend-of-the-court brief from the DeKalb public defender's office, and prohibit all hearsay testimony in preliminary hearings (which is unlikely because DeKalb's magistrate court is the only one in Georgia to insist on more than hearsay testimony).

And my response is that whatever the justices decide will not be that big of a deal (unless they select the 3rd option, which seems very unlikely based upon no other Georgia court applying it).  Is Fleming right that Gresham v. Edwards held that the state can present "testimonial" hearsay at preliminary hearings?  Yes, but Judge Dorough allowed the police officer to render such "testimonial" hearsay, making this a non-issue.  Do the judges of the Magistrate Court of DeKalb County have a secret, improper policy prohibiting them from binding over a case on a finding of probable cause based solely on hearsay?  Maybe and maybe not, but if they do, it would seemingly express the belief by those judges that such evidence is indeed insufficient.  And if that's the case, and even if the Georgia Supremes strike down that policy, there's still nothing stopping those individual judges from applying that same "secret rule" to the facts of any specific case.   In other words, the justices could rule every which way but loose, and I think that things would still look pretty much the same as the status quo.



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