Evidence Issues in Domestic Violence Cases

The Impact of the New Evidence Code on Common Evidence Issues

Vicky O. Kimbrell

Georgia Legal Services ProgramDalton, 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 Reportwww.gcfv.org132 victims died in 2010480 victims died from 2003-20086 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

-- CivilTPOsDivorcesCustody cases

Criminal CasesSpousal 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 CasesLewis 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

HearsayDefinition - ObjectionPublic and Business Records Police Reports Medical Reports Photos

Social Media - FacebookSpousal 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 statistics10. 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 Records14. 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. 24-8-803(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 CertificationO.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. § 24-10-1003A 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 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."