CopyCited 72 times | Published | Supreme Court of Georgia | Feb 16, 2015 | 769 S.E.2d 329
...State, OCGA §
24-13-90 et seq. (the “out-of-state witness act”).1 As explained
below, we hold that a proceeding on a motion for issuance of a material witness
certificate is a fact-finding proceeding to which the new evidence rules apply
under OCGA §
24-1-2 (b), unless an exception applies – but an exception does
apply. Under §
24-1-2 (c) (1), the hearsay and other rules of evidence, aside
1
Georgia’s out-of-state witness act, which was originally enacted in 1976, see Ga....
...Parker then appealed, but the Court of Appeals affirmed his convictions.
See Parker,
326 Ga. App. at 220. Division 1 of its opinion held that a hearing
under the out-of-state witness act is a “fact-finding proceeding” within the
meaning of OCGA §
24-1-2 (b) to which the rules of evidence, including the
hearsay rules, apply....
...Parker also
sought review of those rulings, but our order granting certiorari did not ask the parties to address
them, and the parties did not do so in their briefs.
7
2. (a) OCGA §
24-1-2 governs the applicability of the new Evidence
Code to proceedings in Georgia courts after the new code’s effective date of
January 1, 2013....
...then lists eight situations
where “[t]he rules of evidence, except those with respect to privileges, shall not
apply,” and subsection (d) lists four additional situations where the rules do not
or may not apply fully.6
6
OCGA §
24-1-2 says in full:
(a) The rules of evidence shall apply in all trials by jury in any court in this state.
(b) The rules of evidence shall apply generally to all nonjury trials and other fact-
finding procee...
...8
(b) The Court of Appeals held that the trial court’s determination
of a requested witness’s materiality under the out-of-state witness act was a
“fact-finding proceeding[]” within the meaning of OCGA §
24-1-2 (b)....
...399, 404
(711 SE2d 699) (2011) (citation omitted), which we have explained requires
findings about the particular facts of the witness and the case. See Cronkite v.
State,
293 Ga. 476, 477-478 (745 SE2d 591) (2013).8
Accordingly, under OCGA §
24-1-2 (b), the rules of evidence apply to a
proceeding for issuance of a material witness certificate under the out-of-state
witness act unless one of the exceptions in §
24-1-2 (c) or (d) applies. We turn
next to that question, which the Court of Appeals’ opinion did not address.
3. Parker points us to two of the exceptions in OCGA §
24-1-2 (c) that
he says exempt a proceeding for a material witness certificate from the rules of
evidence and, in particular, from the hearsay rules.
(a) First, Parker invokes OCGA §
24-1-2 (c) (3), under which the
rules of evidence, other than privileges, do not apply to “[p]roceedings for
§
24-13-94 (a)....
...Rules of Evidence and Eleventh Circuit case law in interpreting provisions of our new Evidence
Code).
12
Georgia provision to be different.10
Applying these interpretive principles here, we first recognize that OCGA
§
24-1-2’s counterpart in the federal rules is Federal Rule of Evidence 1101.11
10
The new Evidence Code was signed into law on May 3, 2011, with an effective date of
January 1, 2013....
...• issuing an arrest warrant, criminal summons, or search warrant;
13
The two provisions are similar in most respects, making the rules of evidence
generally applicable to most court proceedings. See OCGA §
24-1-2 (a) - (b);
Fed....
...e then
listed. Fed. R. Evid. 1101 (d) (3) (emphasis added). Thus, the federal rule
expressly authorizes federal courts to limit the application of the rules of
evidence in situations that resemble the situations specified in the rule.
OCGA §
24-1-2 does not have a similar catch-all exception for
“miscellaneous proceedings such as” followed by a list of illustrative examples.
Instead, the Georgia statute enumerates in subsections (c) and (d) twelve
situations, and only twelve, w...
...A federal statute or a rule prescribed by the
Supreme Court may provide for admitting or excluding evidence
independently from these rules.
14
The comprehensive and mandatory language of §
24-1-2 (a) and (b), coupled
with the absence in §
24-1-2 (c) or (d) of a “miscellaneous proceedings such as”
exception like the one found in the corresponding federal rule, indicates that the
twelve statutorily enumerated exceptions constitute an exclusive list.
Leading commentators...
...dence rules will and
will not apply.
Carlson & Carlson, supra, at 7. See also Milich, supra, § 1:2, at 5 (“If a specific
hearing is not addressed in subsections (c) or (d), then the rules of evidence
apply to that hearing pursuant to new O.C.G.A. §
24-1-2 (b).”).
15
In sum, under our new Evidence Code, unless a fact-finding proceeding
involves one of the twelve situations enumerated in OCGA §
24-1-2 (c) and (d),
the rules of evidence fully apply; similarity to one or more of the enumerated
situations is insufficient to limit the applicability of the evidence rules.
Accordingly, Parker’s reliance on OCGA §
24-1-2 (c) (3) is misplaced.
(b) Parker also relies, however, on OCGA §
24-1-2 (c) (1), which
says that the rules of evidence, other than privileges, shall not apply to “[t]he
determination of questions of fact preliminary to admissibility of evidence when
the issue is to be determined by the court under Code Section
24-1-104.”
OCGA §
24-1-104 elaborates on what §
24-1-2 (c) (1) calls “questions of fact
preliminary to admissibility of evidence when the issue is to be determined by
the court” as follows:
Preliminary questions concerning the qualification of a person to be
a witness, the existence of a privilege, or the admissibility of
evidence shall be determined by the court, subject to the provisions
of subsection (b) of this Code section.
OCGA §
24-1-104 (a). The rule then reiterates what is said in §
24-1-2 (c)
(1): “In making its determination, the court shall not be bound by the rules of
16
evidence except those with respect to privileges.”12
As discussed above, obtaining production of...
...subject to cross-examination as to other issues in the proceeding.
(e) This Code section shall not limit the right of a party to introduce before the
jury evidence relevant to weight or credibility.
We note that OCGA §
24-1-2 (c) (1)’s exception to the applicability of the rules of evidence
corresponds to the exception in Federal Rule of Evidence 1101 (d) (1), and OCGA §
24-1-104 (a)
mirrors in relevant part Federal Rule of Evidence 104 (a)....
...These are
“[p]reliminary questions concerning the qualification of a person to be a
witness” within the meaning of OCGA §
24-1-104 (a). See also OCGA § 24-6-
602 (to be competent to testify to a matter, a lay witness must have “personal
knowledge of the matter”). And OCGA §§
24-1-2 (c) (1) and
24-1-104 (a) both
state clearly that in this situation, the rules of evidence, other than privileges, do
not apply; the inapplicable rules include the hearsay rules.
This conclusion is bolstered by the recognition that...
Published | Supreme Court of Georgia | Feb 16, 2015
...State, OCGA §
24-13-90 et seq. (the “out-of-state witness act”).1 As explained
below, we hold that a proceeding on a motion for issuance of a material witness
certificate is a fact-finding proceeding to which the new evidence rules apply
under OCGA §
24-1-2 (b), unless an exception applies — but an exception does
apply. Under OCGA §
24-1-2 (c) (1), the hearsay and other rules of evidence,
aside from privileges, do not apply to “[t]he determination of questions of fact
1
Georgia’s out-of-state witness act, which was originally enacted in 1976, see Ga....
...Parker then appealed, but the Court of Appeals affirmed his convictions.
See Parker,
326 Ga. App. at 220. Division 1 of its opinion held that a hearing
under the out-of-state witness act is a “fact-finding proceeding” within the
meaning of OCGA §
24-1-2 (b) to which the rules of evidence, including the
hearsay rules, apply....
...at 219-220. Parker also
sought review of those rulings, but our order granting certiorari did not ask the parties to address
them, and the parties did not do so in their briefs.
7
2. (a) OCGA §
24-1-2 governs the applicability of the new Evidence
Code to proceedings in Georgia courts after the new Code’s effective date of
January 1, 2013....
...) then lists eight situations
where “[t]he rules of evidence, except those with respect to privileges, shall not
apply,” and subsection (d) lists four additional situations where the rules do not
or may not apply fully.6
6
OCGA §
24-1-2 says in full:
(a) The rules of evidence shall apply in all trials by jury in any court in this
state.
(b) The rules of evidence shall apply generally to all nonjury trials and other
fact-finding proce...
...8
(b) The Court of Appeals held that the trial court’s determination of a
requested witness’s materiality under the out-of-state witness act was a “fact-
finding proceeding[ ]” within the meaning of OCGA §
24-1-2 (b)....
...399, 404
(711 SE2d 699) (2011) (citation omitted), which we have explained requires
findings about the particular facts of the witness and the case. See Cronkite v.
State,
293 Ga. 476, 477-478 (745 SE2d 591) (2013).8
Accordingly, under OCGA §
24-1-2 (b), the rules of evidence apply to a
proceeding for issuance of a material witness certificate under the out-of-state
witness act unless one of the exceptions in OCGA §
24-1-2 (c) or (d) applies.
We turn next to that question, which the Court of Appeals’ opinion did not
address.
3. Parker points us to two of the exceptions in OCGA §
24-1-2 (c) that
he says exempt a proceeding for a material witness certificate from the rules of
evidence and, in particular, from the hearsay rules.
(a) First, Parker invokes OCGA §
24-1-2 (c) (3), under which the rules
of evidence, other than privileges, do not apply to “[p]roceedings for extradition
or rendition.” Parker acknowledges that a proceeding for a material witness
8
A Georgia court that rec...
...Rules of Evidence and Eleventh Circuit case law in interpreting provisions of our new Evidence
Code).
12
Georgia provision to be different.10
Applying these interpretive principles here, we first recognize that OCGA
§
24-1-2’s counterpart in the federal rules is Federal Rule of Evidence 1101.11
10
The new Evidence Code was signed into law on May 3, 2011, with an effective date of
January 1, 2013....
...• a preliminary examination in a criminal case;
13
The two provisions are similar in most respects, making the rules of evidence
generally applicable to most court proceedings. See OCGA §
24-1-2 (a), (b);
Fed....
...e then
listed. Fed. R. Evid. 1101 (d) (3) (emphasis added). Thus, the federal rule
expressly authorizes federal courts to limit the application of the rules of
evidence in situations that resemble the situations specified in the rule.
OCGA §
24-1-2 does not have a similar catch-all exception for
“miscellaneous proceedings such as” followed by a list of illustrative examples.
Instead, the Georgia statute enumerates in subsections (c) and (d) twelve
situations, and only twelve, w...
...A federal statute or a rule prescribed by the
Supreme Court may provide for admitting or excluding evidence
independently from these rules.
14
The comprehensive and mandatory language of OCGA §
24-1-2 (a) and (b),
coupled with the absence in OCGA §
24-1-2 (c) or (d) of a “miscellaneous
proceedings such as” exception like the one found in the corresponding federal
rule, indicates that the twelve statutorily enumerated exceptions constitute an
exclusive list.
Leading commentators...
...Carlson & Carlson, supra, at 7. See also Milich, supra, § 1:2, at 5 (“If a specific
hearing is not addressed in subsections (c) or (d), then the rules of evidence
15
apply to that hearing pursuant to new O.C.G.A. §
24-1-2 (b).”).
In sum, under our new Evidence Code, unless a fact-finding proceeding
involves one of the twelve situations enumerated in OCGA §
24-1-2 (c) and (d),
the rules of evidence fully apply; similarity to one or more of the enumerated
situations is insufficient to limit the applicability of the evidence rules.
Accordingly, Parker’s reliance on OCGA §
24-1-2 (c) (3) is misplaced.
(b) Parker also relies, however, on OCGA §
24-1-2 (c) (1), which says
that the rules of evidence, other than privileges, shall not apply to “[t]he
determination of questions of fact preliminary to admissibility of evidence when
the issue is to be determined by the court under Code Section
24-1-104.”
OCGA §
24-1-104 elaborates on what OCGA §
24-1-2 (c) (1) calls “questions
of fact preliminary to admissibility of evidence when the issue is to be
determined by the court” as follows:
Preliminary questions concerning the qualification of a person
to be a witness, the existence of a privilege, or the admissibility of
evidence shall be determined by the court, subject to the provisions
of subsection (b) of this Code section. . . .
OCGA §
24-1-104 (a). The rule then reiterates what is said in OCGA §
24-1-2
(c) (1): “In making its determination, the court shall not be bound by the rules
16
of evidence except those with respect to privileges.”12
As discussed above, obtaining production of a...
...me
subject to cross-examination as to other issues in the proceeding.
(e) This Code section shall not limit the right of a party to introduce before
the jury evidence relevant to weight or credibility.
We note that OCGA §
24-1-2 (c) (1)’s exception to the applicability of the rules of evidence
corresponds to the exception in Federal Rule of Evidence 1101 (d) (1), and OCGA §
24-1-104 (a)
mirrors in relevant part Federal Rule of Evidence 104 (a)....
...These are
“[p]reliminary questions concerning the qualification of a person to be a
witness” within the meaning of OCGA §
24-1-104 (a). See also OCGA § 24-6-
602 (to be competent to testify to a matter, a lay witness must have “personal
knowledge of the matter”). And OCGA §§
24-1-2 (c) (1) and
24-1-104 (a) both
state clearly that in this situation, the rules of evidence, other than privileges, do
not apply; the inapplicable rules include the hearsay rules.
This conclusion is bolstered by the recognition that...
