O.C.G.A. § 24-10-1002 (2019)

Annotations

Cross references. Parol contracts, § 13-1-6. Statute of frauds, § 13-5-30 et seq. Parol evidence generally, T. 24, Ch. 3.

Requirement of the original, Fed. R. Evid. 1002. Law reviews. For article, “An Analysis of Georgia’s Proposed Rules of Evidence,” see 26 Ga. St. B.J. 173 (1990).

JUDICIAL DECISIONS ANALYSIS GENERAL CONSIDERATION APPLICATION ACCEPTABLE EVIDENCE General Consideration Editor’s notes. - In light of the similarity of the statutory provisions, decisions under former Code 1868, §§ 3707, 3709, former Code 1873, §§ 3760, 3762, former Civil Code 1895, §§ 5162, 5166, former Civil Code 1910, §§ 5748, 5752, former Code 1933, §§ 38-203, 38-205, and former O.C.G.A. § 24-5-4 are included in the annotations for this Code section. Rule restricted to writings and has nothing to do with evidence generally. Lester v. S.J. Alexander, Inc., 127 Ga. App. 470, 193 S.E.2d 860, 1972 Ga. App. LEXIS 919 (1972) (decided under former Code 1933, §§ 38-203, 38-205); Willingham v. State, 134 Ga. App. 603, 215 S.E.2d 521, 1975 Ga. App. LEXIS 2101 (1975) (decided under former Code 1933, §§ 38-203, 38205); Rutledge v. State, 152 Ga. App. 755, 264 S.E.2d 244, 1979 Ga. App. LEXIS 3075 (1979) (decided under former Code 1933, §§ 38-203, 38-205); Bostic v. State, 183 Ga. App. 430, 359 S.E.2d 201, 1987 Ga. App. LEXIS 2719 (1987) (decided under former Code 1933, §§ 38-203, 38-205). Contents of writing in issue. - Former statute applied only when the con-

tents of a writing were in issue. Young v. State, 226 Ga. 553, 176 S.E.2d 52, 1970 Ga. LEXIS 592 (1970) (decided under former Code 1933, §§ 38-203, 38-205); Springer v. State, 238 Ga. 81, 230 S.E.2d 883, 1976 Ga. LEXIS 1108 (1976) (decided under former Code 1933, §§ 38-203, 38205); Pryor v. State, 238 Ga. 698, 234 S.E.2d 918, 1977 Ga. LEXIS 1172 (1977), cert. denied, 434 U.S. 935, 98 S. Ct. 422, 54 L. Ed. 2d 294 (1977), overruled, overruled in part as stated in , Drinkard v. Walker, 281 Ga. 211, 636 S.E.2d 530, 2006 Ga. LEXIS 840 (2006), overruled in part as stated in Scott v. State, 356 Ga. App. 152, 846 S.E.2d 241, 2020 Ga. App. LEXIS 416 (2020); Guthrie v. State, 147 Ga. App. 351, 248 S.E.2d 714, 1978 Ga. App. LEXIS 2687 (1978) (decided under former Code 1933, §§ 38-203, 38-205); Smith v. State, 147 Ga. App. 549, 249 S.E.2d 353, 1978 Ga. App. LEXIS 2770 (1978) (decided under former Code 1933, §§ 38-203, 38-205); Ferrell v. State, 149 Ga. App. 405, 254 S.E.2d 404, 1979 Ga. App. LEXIS 1873 (1979), cert. denied, 444 U.S. 1021, 100 S. Ct. 679, 62 L. Ed. 2d 653, 1980 U.S. LEXIS 365 (1980) (decided under former Code 1933, §§ 38-203, 38-205); Denson v.

General Consideration (Cont’d) State, 149 Ga. App. 453, 254 S.E.2d 455, 1979 Ga. App. LEXIS 1887 (1979) (decided under former Code 1933, §§ 38-203, 38205). Preference for original writing. - Former statute was really a preferential rule giving first preference to the original writing. Lester v. S.J. Alexander, Inc., 127 Ga. App. 470, 193 S.E.2d 860, 1972 Ga. App. LEXIS 919 (1972) (decided under former Code 1933, §§ 38-203, 38-205); Willingham v. State, 134 Ga. App. 603, 215 S.E.2d 521, 1975 Ga. App. LEXIS 2101 (1975) (decided under former Code 1933, §§ 38-203, 38-205). Former statute should be more appropriately called the “original document rule.” Lester v. S.J. Alexander, Inc., 127 Ga. App. 470, 193 S.E.2d 860, 1972 Ga. App. LEXIS 919 (1972) (decided under former Code 1933, §§ 38-203, 38-205); Pugh v. Jones, 131 Ga. App. 600, 206 S.E.2d 650, 1974 Ga. App. LEXIS 1487 (1974) (decided under former Code 1933, §§ 38-203, 38-205). Accounting for absence of notes. - There was no violation of the former statute by the failure to introduce the officer’s notes taken during interviews with the defendant when the absence of notes was accounted for and explained. Dowdy v. State, 215 Ga. App. 576, 451 S.E.2d 528, 1994 Ga. App. LEXIS 1303 (1994) (decided under former O.C.G.A. § 24-5-4). When, with regard to proof of transmittal of contraband to state crime lab by certified mail, the state could only produce a photostatic copy of the certification receipt in lieu of the original and the defendant urged that, without an adequate explanation for the absence of the original certified mail receipt as required by former O.C.G.A. § 24-5-4, the chain of custody was not sufficiently proven, but a deputy sheriff testified that the deputy would always make a copy of the certified mail receipt when the deputy mailed contraband to the state crime lab, but had been unable to locate the original receipt for this particular mailing, and identified the deputy’s handwriting on the photostatic copy and noted that the certification number was identical to that on the state

crime lab report, the trial court was authorized to conclude that the copy of the receipt had been made in the regular course of business so as to be admissible pursuant to former O.C.G.A. §§ 24-3-14 and 24-5-26 (see now O.C.G.A. §§ 24-8803 and 24-10-1003). Spead v. State, 187 Ga. App. 359, 370 S.E.2d 213, 1988 Ga. App. LEXIS 700 (1988) (decided under former O.C.G.A. § 24-5-4). Inadmissible testimony. - It was error to admit the testimony of witnesses as to the contents of a notebook without establishing the notebook’s existence, admissibility, authentication and without accounting for the absence of the original. Clark v. State, 271 Ga. 6, 515 S.E.2d 155 (decided under former O.C.G.A. § 24-5-4). In a civil forfeiture proceeding in connection with an action brought under the Georgia Racketeer Influenced and Corrupt Organizations Act, O.C.G.A. § 1614-1 et seq., a witness’s testimony regarding newspaper and billboard advertising, telephone calls, and credit card charges violated the former best evidence rule because the state neither produced documentary evidence to support the statements, nor accounted for the absence of such evidence. Pabey v. State, 262 Ga. App. 272, 585 S.E.2d 200, 2003 Ga. App. LEXIS 881 (2003) (decided under former O.C.G.A. § 24-5-4). Trial court erred in excluding the testimony of the defendant’s parent concerning a missing letter written to the parent by the codefendant because testimony regarding the letter was inadmissible under the former best evidence rule; because the parent was not so familiar with the defendant’s handwriting that the parent would recognize the handwriting, and there was no other evidence that the letter the parent described was written by the codefendant, the letter was not properly authenticated. Norris v. State, 289 Ga. 154, 709 S.E.2d 792, 2011 Ga. LEXIS 301 (2011) (decided under former O.C.G.A. § 24-5-4). Inadmissible evidence. - Cover letter sought to be introduced was a photocopy of an alleged original that had never been produced, that the introducing party had never seen, and that the other party claimed did not exist; thus, without additional foundation, the photocopy was sus-

ceptible to a best evidence objection, and a trial court properly denied admission of the letter. Dixon Dairy Farms, Inc. v. Purina Mills, Inc., 267 Ga. App. 738, 601 S.E.2d 152, 2004 Ga. App. LEXIS 768 (2004) (decided under former O.C.G.A. § 24-5-4). Guarantors’ claims that the guarantors entered into written agreements with a bank releasing the guarantors from their guaranty agreements was not supported by any evidence; there was nothing to satisfactorily account for the absence of the written agreements, former O.C.G.A. § 24-5-4(a), and any oral assurances by bank personnel were inadmissible to vary from the terms of the guaranty agreements under O.C.G.A. § 13-2-2(1). Windham & Windham, Inc. v. Suntrust Bank, 313 Ga. App. 841, 723 S.E.2d 70, 2012 Ga. App. LEXIS 92 (2012) (decided under former O.C.G.A. § 24-5-4). Suspicion of fraud as basis for rule. - Ground of the former rule was a suspicion of fraud and, if there was better evidence of the fact which was withheld, a presumption arose that the party had some secret or sinister motive in not producing the better evidence. United States v. Reyburn, 31 U.S. 352, 8 L. Ed. 424, 1832 U.S. LEXIS 481 (1832) (decided under former law); Fitzgerald v. Adams, 9 Ga. 471, 1851 Ga. LEXIS 39 (1851) (decided under former law). Evidence which itself indicates accessibility of other and better proof is inadmissible. Wise v. State, 52 Ga. App. 98, 182 S.E. 535, 1935 Ga. App. LEXIS 60 (1935) (decided under former Code 1933, §§ 38-203, 38-205); Short v. Haney, 60 Ga. App. 585, 4 S.E.2d 497, 1939 Ga. App. LEXIS 91 (1939) (decided under former Code 1933, §§ 38-203, 38-205). Rule does not require introduction of chattels into evidence. Hill v. State, 221 Ga. 65, 142 S.E.2d 909, 1965 Ga. LEXIS 383 (1965); Adams v. State, 142 Ga. App. 252, 235 S.E.2d 667, 1977 Ga. App. LEXIS 1565 (1977) (decided under former Code 1933, §§ 38-203, 38-205). Rule may be waived. Moret v. State, 246 Ga. 5, 268 S.E.2d 635, 1980 Ga. LEXIS 998 (1980) (decided under former Code 1933, §§ 38-203, 38-205). Defendant waived this rule when, with knowledge that officer’s notes taken dur-

ing interviews with the defendant were accessible, the defendant did not demand that the notes be produced and allowed the introduction of typed notes. Dowdy v. State, 215 Ga. App. 576, 451 S.E.2d 528, 1994 Ga. App. LEXIS 1303 (1994) (decided under former O.C.G.A. § 24-5-4). Other evidence of similar import. - Party cannot complain that evidence was admitted when the party offered other evidence of similar legal import. Cain v. State, 113 Ga. App. 477, 148 S.E.2d 508, 1966 Ga. App. LEXIS 1101 (1966) (decided under former Code 1933, §§ 38-203, 38205). Harmless error. - Error in failing to require production of a warrant was harmless if its only effect was to establish a state of facts the defendant admitted to be true. Cain v. State, 113 Ga. App. 477, 148 S.E.2d 508, 1966 Ga. App. LEXIS 1101 (1966) (decided under former Code 1933, §§ 38-203, 38-205). Effect of failure to comply with rule. - Failure to comply with the “original document rule” in attachments may cause the affidavit to be stricken. Pugh v. Jones, 131 Ga. App. 600, 206 S.E.2d 650, 1974 Ga. App. LEXIS 1487 (1974) (decided under former Code 1933, §§ 38-203, 38205). Expert’s opinion must be based on original record. - It is reversible error to allow an expert witness to base an opinion upon what the expert says a chart of an official Navy health record shows when the record itself is not introduced in evidence. Pressley v. State, 205 Ga. 197, 53 S.E.2d 106, 1949 Ga. LEXIS 338 (1949) (decided under former Code 1933, §§ 38203, 38-205). Insurance card testimony admissible. - In light of defendant’s own admission at trial that the defendant did not have an insurance card because the defendant paid for insurance in installments, the trial court did not abuse the court’s discretion in allowing the officer’s testimony without producing the card itself. Johnson v. State, 209 Ga. App. 395, 433 S.E.2d 638, 1993 Ga. App. LEXIS 896 (1993), cert. denied, No. S93C1561, 1993 Ga. LEXIS 968 (Ga. Oct. 12, 1993) (decided under former Code 1933, §§ 38-203, 38-205).

EVIDENCE Application

Videotapes. - Former best evidence rule applied only to writings and not to videotapes. Collins v. State, 232 Ga. App. 651, 502 S.E.2d 498 (decided under former O.C.G.A. § 24-5-4). Former best evidence rule did not apply to videotapes. Reese v. State, 252 Ga. App. 650, 556 S.E.2d 150, 2001 Ga. App. LEXIS 1217 (2001), cert. denied, No. S02C0519, 2002 Ga. LEXIS 294 (Ga. Mar. 29, 2002) (decided under former O.C.G.A. § 24-5-4). Trial court abused the court’s discretion in admitting the officer’s testimony describing the contents of a security video showing theft of the truck because neither the officer nor the state’s representatives undertook any effort whatsoever to retrieve the video recording, which the officer testified had been taken into evidence, or to account for its absence. Thus, the officer’s testimony concerning the content of the security video violated the best evidence rule. Glasper v. State, 364 Ga. App. 608, 876 S.E.2d 11, 2022 Ga. App. LEXIS 341 (2022). Former best evidence rule did not apply to collateral evidence. Walls v. State, 161 Ga. App. 235, 291 S.E.2d 15, 1982 Ga. App. LEXIS 1830 (1982) (decided under former O.C.G.A. § 24-5-4). When essential fact to be proved was neither existence nor contents of quarterly bank statements, which were merely collateral or incidental to issue involved, it was not error to admit photocopies of such statements since plaintiff testified that the plaintiff did not have the originals. Jones v. Sudduth, 162 Ga. App. 602, 292 S.E.2d 448, 1982 Ga. App. LEXIS 2258 (1982) (decided under former O.C.G.A. § 24-5-4). Rule inapplicable when contents of writing not in issue. - See Jones v. Blackburn, 75 Ga. App. 791, 44 S.E.2d 555, 1947 Ga. App. LEXIS 643 (1947) (decided under former Code 1933, §§ 38203, 38-205); DeKalb County v. Townsend Assocs., 243 Ga. 80, 252 S.E.2d 498, 1979 Ga. LEXIS 814 (1979) (decided under former Code 1933, §§ 38-203, 38-205); Wells v. State, 151 Ga. App. 416, 260 S.E.2d 374, 1979 Ga. App. LEXIS 2553 (1979), overruled, Copeland v. State, 160 Ga. App. 786, 287 S.E.2d 120, 1982 Ga. App. LEXIS

1687 (1982) (decided under former Code 1933, §§ 38-203, 38-205); Borenstein v. Blumenfeld, 151 Ga. App. 420, 260 S.E.2d 377, 1979 Ga. App. LEXIS 2554 (1979) (decided under former Code 1933, §§ 38203, 38-205); Brown v. State, 177 Ga. App. 284, 339 S.E.2d 332, 1985 Ga. App. LEXIS 2948 (1985) (decided under former O.C.G.A. § 24-5-4); Johnson v. State, 177 Ga. App. 705, 340 S.E.2d 662, 1986 Ga. App. LEXIS 2443 (1986) (decided under former O.C.G.A. § 24-5-4); Blue Cross of Georgia/Columbus, Inc. v. Whatley, 180 Ga. App. 93, 348 S.E.2d 459, 1986 Ga. App. LEXIS 2062 (1986) (decided under former O.C.G.A. § 24-5-4); Covington v. State, 226 Ga. App. 484, 486 S.E.2d 706 (decided under former O.C.G.A. § 24-5-4). With regard to a defendant’s convictions for aggravated sodomy and kidnapping, the trial court did not err by admitting the testimony of the defendant’s relative regarding letters the defendant sent to the relative while the defendant was awaiting trial wherein the defendant asked the relative to testify at trial that the relative had seen the victim and the defendant together the day before the attack at a motel, which was an event that never occurred. Contrary to the defendant’s contention that the admission of the relative’s testimony violated the best evidence rule, the best evidence rule did not apply since the contents of the writings were not in issue. Smith v. State, 294 Ga. App. 692, 670 S.E.2d 191, 2008 Ga. App. LEXIS 1295 (2008) (decided under former O.C.G.A. § 24-5-4). Revocation of the appellant’s probation was affirmed because evidence was sufficient based on testimony of a witness that the appellant had lied at the plea hearing to exonerate a witness and the trial court did not abuse the court’s discretion when the court overruled the appellant’s best evidence objection to witness testimony since the rule did not require production of a document simply because the document contained facts testified to by the witness. Almeda v. State, 348 Ga. App. 576, 824 S.E.2d 72, 2019 Ga. App. LEXIS 52 (2019). When contents or existence not in issue. - Former best evidence rule was inapplicable when neither the existence

nor the contents of documents was in issue. Bacon v. Decatur Fed. Sav. & Loan Ass’n, 169 Ga. App. 538, 313 S.E.2d 727, 1984 Ga. App. LEXIS 1629 (1984) (decided under former O.C.G.A. § 24-5-4); Calloway v. State, 176 Ga. App. 674, 337 S.E.2d 397, 1985 Ga. App. LEXIS 2529 (1985) (decided under former O.C.G.A. § 24-5-4). Currency was not a “writing”. - Photocopy of a $20 bill used as “buy money” in a drug transaction was admissible. Johnson v. State, 231 Ga. App. 114, 497 S.E.2d 666 (decided under former O.C.G.A. § 24-5-4). Computer screen as writing. - Admission of the oral testimony of a clerk whose computer defendant used to “back out” taxes, that the clerk’s computer showed evidence of backing out, did not violate the best evidence rule, even assuming that a computer screen constituted a writing; at issue was a question of fact, whether defendant used the clerk’s computer to back out taxes, and not the contents or terms of a writing. Parham v. State, 275 Ga. App. 528, 621 S.E.2d 532, 2005 Ga. App. LEXIS 1016 (2005) (decided under former O.C.G.A. § 24-5-4). Transcript of online conversations. - With regard to the defendant’s conviction for criminal attempt to commit child molestation and related crimes, the trial court did not err in admitting into evidence transcripts of all of the online conversations between the defendant and a detective, posing as the 15-year-old victim, because the detective testified that the detective participated in all of the online conversations with the defendant; that the detective created the transcripts by copying the text exactly as the text appeared on the computer screen, without making any additions, omissions, or other alterations to that text; and that the transcript reflected the exact words used in the conversation, as well as the online names used by the persons who typed those words, which was sufficient to authenticate the transcript. Castaneira v. State, 321 Ga. App. 418, 740 S.E.2d 400, 2013 Ga. App. LEXIS 280 (2013), cert. denied, No. S13C1278, 2013 Ga. LEXIS 814 (Ga. Oct. 7, 2013), cert. denied, 572 U.S. 1050, 134 S. Ct. 1797, 188 L. Ed. 2d 765, 2014 U.S. LEXIS 2463 (2014).

Nonexistence of fact. - When it is sought to show that certain records do not contain a certain thing, the testimony of the keeper of the records, or of any other person who has read the records, that the records do not show the thing in question, is not inadmissible. Cary v. State, 55 Ga. App. 167, 189 S.E. 625, 1937 Ga. App. LEXIS 25 (1937) (decided under former Code 1933, §§ 38-203, 38-205); Peters v. Adcock, 196 Ga. 118, 26 S.E.2d 342, 1943 Ga. LEXIS 324 (1943) (decided under former Code 1933, §§ 38-203, 38-205). Existence of fact to which writing is incidental. - Oral testimony of a fact in issue may be primary evidence thereof, although there is written evidence of the same fact, where the essential fact to be proved is neither the existence nor the contents of the writing, but the existence of the independent fact itself, to which the writing is merely collateral or incidental. Peterson v. Lott, 200 Ga. 390, 37 S.E.2d 358, 1946 Ga. LEXIS 404 (1946) (decided under former Code 1933, §§ 38-203, 38205); Burke v. State, 153 Ga. App. 769, 266 S.E.2d 549, 1980 Ga. App. LEXIS 1973 (1980) (decided under former Code 1933, §§ 38-203, 38-205); Emmett v. Regions Bank, 238 Ga. App. 455, 518 S.E.2d 472 (decided under former O.C.G.A. § 24-5-4). Existence of writing. - Witness may testify that a writing exists since the witness does not attempt to testify as to the contents of the writing. Jones v. Blackburn, 75 Ga. App. 791, 44 S.E.2d 555, 1947 Ga. App. LEXIS 643 (1947) (decided under former Code 1933, §§ 38-203, 38-205). Trial court erred in granting summary judgment to a rehabilitation company based on a contractual exculpatory clause because the material provisions of the agreement at issue were illegible, and given that an affidavit was insufficient to establish a basis for the admission of the alleged exemplar, the company failed to show that the agreement signed by the participant contained an exculpatory clause waiving and releasing the company from liability for the company’s own negligence. Sanchez v. Atlanta Union Mission Corp., 329 Ga. App. 158, 764 S.E.2d 178, 2014 Ga. App. LEXIS 641 (2014). Existence of notes, checks, letters, and the like. - Parol evidence as to the existence of notes, checks, receipts, books,

Application (Cont’d) letters, and the like, or as to their location, size, length, quantity, and other factors, but not undertaking to disclose the material contents thereof, is not subject to the objection that the writings themselves would be higher proof; where such writings are only collaterally in point, and are in no sense the foundation of the action or defense, even their contents may sometimes be shown by parol without accounting for the nonproduction of the papers themselves. Butts v. Maryland Cas. Co., 52 Ga. App. 838, 184 S.E. 774, 1936 Ga. App. LEXIS 265 (1936) (decided under former Code 1933, §§ 38-203, 38-205). Existence of magazine pictures. - Trial court properly allowed an arresting officer to testify regarding the presence of magazine pictures of female nudes in defendant’s home since the pictures were not introduced into evidence. King v. State, 209 Ga. App. 529, 433 S.E.2d 722, 1993 Ga. App. LEXIS 932 (1993) (decided under former O.C.G.A. § 24-5-4). Summary of accounting book entries. - When pertinent and essential facts can be ascertained only by an examination of a large number of entries in books of account, an auditor or an expert accountant who has made an examination and analysis of the books and figures may testify as a witness and give summarized statements of what the books show as a result of the investigation, provided the books themselves are accessible to the court and the parties. Stewart v. State, 246 Ga. 70, 268 S.E.2d 906, 1980 Ga. LEXIS 970 (1980) (decided under former Code 1933, §§ 38-203, 38-205); Jackson v. Meadows, 157 Ga. App. 569, 278 S.E.2d 8, 1981 Ga. App. LEXIS 1917 (1981) (decided under former Code 1933, §§ 38-203, 38205). Showing absence of administration. - Best method of proving that no administration was ever had upon a particular estate is to introduce the evidence of one who has examined the records in the court where letters of administration should have been granted, that no such letters are shown by those records. Cowan v. Corbett, 68 Ga. 66, 1881 Ga. LEXIS 313 (1881) (decided under former Code 1873,

§§ 3760, 3762); Greenfield v. McIntyre, 112 Ga. 691, 38 S.E. 44, 1901 Ga. LEXIS 60 (1901) (decided under former Civil Code 1895, §§ 5162, 5166); Compton v. Fender, 132 Ga. 483, 64 S.E. 475, 1909 Ga. LEXIS 336 (1909) (decided under former Civil Code 1895, §§ 5162, 5166). Accounting for absence. - Hearsay testimony of a deputy about the contents of a missing letter that defendant allegedly wrote and sent to a codefendant was admissible as an incriminating statement by the defendant; the state satisfactorily accounted for the absence of the letter through the codefendant, who testified that the codefendant destroyed the letter after showing the letter to the deputy. Summerour v. State, 211 Ga. App. 65, 438 S.E.2d 176, 1993 Ga. App. LEXIS 1410 (1993) (decided under former O.C.G.A. § 24-5-4). Trial court’s admission of a photocopy of a letter examined by a documents examiner did not violate the former best evidence rule as the original letter was lost and the copy was properly authenticated. Roberts v. State, 282 Ga. 548, 651 S.E.2d 689, 2007 Ga. LEXIS 716 (2007) (decided under former O.C.G.A. § 24-5-4). No error in admission of copy of warranty. Croxton v. Leggett Motor Rebuilding, 168 Ga. App. 258, 308 S.E.2d 640, 1983 Ga. App. LEXIS 2741 (1983) (decided under former O.C.G.A. § 24-5-4). Still photographs taken from videotape were inapplicable to the former statute; the snapshots were merely positive enlargements of the frames which the jury could not have easily seen. Cleveland v. State, 204 Ga. App. 101, 418 S.E.2d 430, 1992 Ga. App. LEXIS 699 (1992) (decided under former O.C.G.A. § 24-5-4). Still photographs taken from videotape. - Admission of photographs taken from a surveillance tape did not violate the best evidence rule, as the tape was also admitted. Hafeez v. State, 339 Ga. App. 467, 793 S.E.2d 632, 2016 Ga. App. LEXIS 645 (2016). Former statute was inapplicable in the following cases. - See International Harvester Co. of Am. v. Morgan, 19 Ga. App. 716, 92 S.E. 35, 1917 Ga. App. LEXIS 325 (1917) (prior written agreement) (decided under former Civil Code

1910, §§ 5748, 5752); Jenkins v. Lane, 154 Ga. 454, 115 S.E. 126, 1922 Ga. LEXIS 393 (1922) (parol evidence to establish implied trust) (decided under former Civil Code 1910, §§ 5748, 5752); Maynard v. Rawlins, 45 Ga. App. 91, 163 S.E. 269, 1932 Ga. App. LEXIS 176 (1932) (testimony concerning note admitted by agreement of counsel) (decided under former Civil Code 1910, §§ 5748, 5752); Oliver v. Lane, 46 Ga. App. 136, 167 S.E. 116, 1932 Ga. App. LEXIS 75 (1932) (parol evidence concerning note) (decided under former Civil Code 1910, §§ 5748, 5752); Cooper v. State, 180 Ga. 612, 180 S.E. 103, 1935 Ga. LEXIS 505 (1935) (oral criminal confession) (decided under former Code 1933, §§ 38-203, 38-205); Garcia v. State, 52 Ga. App. 80, 182 S.E. 526, 1935 Ga. App. LEXIS 51 (1935) (testimony derived from records) (decided under former Code 1933, §§ 38-203, 38-205); Wise v. State, 52 Ga. App. 98, 182 S.E. 535, 1935 Ga. App. LEXIS 60 (1935) (testimony concerning addresses printed on stolen property) (decided under former Code 1933, §§ 38-203, 38-205); Butts v. Maryland Cas. Co., 52 Ga. App. 838, 184 S.E. 774, 1936 Ga. App. LEXIS 265 (1936) (accord and satisfaction) (decided under former Code 1933, §§ 38-203, 38-205); Jones v. State, 182 Ga. 378, 185 S.E. 571, 1936 Ga. LEXIS 369 (1936) (certificate of insurance issued under group policy) (decided under former Code 1933, §§ 38-203, 38-205); Roberts v. State, 86 Ga. App. 768, 72 S.E.2d 551, 1952 Ga. App. LEXIS 1055 (1952) (parol evidence to impeach) (decided under former Code 1933, §§ 38-203, 38-205); Robinson v. Reward Ceramic Color Mfg., Inc., 120 Ga. App. 380, 170 S.E.2d 724, 1969 Ga. App. LEXIS 785 (1969) (testimony concerning records) (decided under former Code 1933, §§ 38-203, 38-205); Young v. State, 226 Ga. 553, 176 S.E.2d 52, 1970 Ga. LEXIS 592 (1970) (proof to convict) (decided under former Code 1933, §§ 38203, 38-205); Denson v. State, 149 Ga. App. 453, 254 S.E.2d 455, 1979 Ga. App. LEXIS 1887 (1979) (testimony concerning ownership and possession of car) (decided under former Code 1933, §§ 38-203, 38205); Jones v. Brawner, 151 Ga. App. 437, 260 S.E.2d 385, 1979 Ga. App. LEXIS 2564 (1979) (testimony concerning exis-

tence of perpetual care reserve fund) (decided under former Code 1933, §§ 38-203, 38-205); Causey v. State, 154 Ga. App. 76, 267 S.E.2d 475, 1980 Ga. App. LEXIS 2048 (1980) (transcript of tape recording) (decided under former Code 1933, §§ 38203, 38-205); Timberlake v. State, 246 Ga. 488, 271 S.E.2d 792, 1980 Ga. LEXIS 1174 (1980) (copy of forged check) (decided under former Code 1933, §§ 38-203, 38-205); Knox v. State, 165 Ga. App. 26, 299 S.E.2d 105, 1983 Ga. App. LEXIS 1752 (1983) (checks) (decided under former O.C.G.A. § 24-5-4); Fantasia v. State, 268 Ga. 512, 491 S.E.2d 318 (photocopies of original inspection certificates) (decided under former O.C.G.A. § 24-5-4). In a breach of contract action between a business and an advertiser, the former best evidence rule required the advertiser to produce the first affidavit provided by the advertiser’s senior director of business affairs, and the trial court erred in considering the affidavit without requiring the affidavit’s production. But, given that the second affidavit showed that the parties entered into the contract at issue, the trial court properly considered the affidavit to that effect. Alcatraz Media, LLC v. Yahoo! Inc., 290 Ga. App. 882, 660 S.E.2d 797, 2008 Ga. App. LEXIS 364 (2008) (decided under former O.C.G.A. § 24-5-4). Acceptable Evidence Certified copy of a public record is the best evidence of the records contents. O’Connor v. United States, 11 Ga. App. 246, 75 S.E. 110, 1912 Ga. App. LEXIS 353 (1912) (decided under former Civil Code 1910, §§ 5748, 5752); Pressley v. State, 205 Ga. 197, 53 S.E.2d 106, 1949 Ga. LEXIS 338 (1949) (decided under former Code 1933, §§ 38-203, 38-205); Pugh v. Jones, 131 Ga. App. 600, 206 S.E.2d 650, 1974 Ga. App. LEXIS 1487 (1974) (decided under former Code 1933, §§ 38-203, 38205). Deed is the best evidence of the deed’s contents. Hall v. Waller, 66 Ga. 483, 1881 Ga. LEXIS 40 (1881) (decided under former Code 1873, §§ 3760, 3762); McConnell Bros. v. Slappey, 134 Ga. 95, 67 S.E. 440, 1910 Ga. LEXIS 125 (1910) (decided under former Civil Code 1895,

Acceptable Evidence (Cont’d) §§ 5162, 5166); Head v. Lee, 203 Ga. 191, 45 S.E.2d 666, 1947 Ga. LEXIS 589 (1947) (decided under former Code 1933, §§ 38203, 38-205); Ehrlich v. Mills, 203 Ga. 600, 48 S.E.2d 107, 1948 Ga. LEXIS 496 (1948) (decided under former Code 1933, §§ 38203, 38-205); Green v. Wright, 225 Ga. 25, 165 S.E.2d 843, 1969 Ga. LEXIS 361 (1969) (decided under former Code 1933, §§ 38-203, 38-205); Hembree v. Cotton States Mut. Ins. Co., 132 Ga. App. 556, 208 S.E.2d 568, 1974 Ga. App. LEXIS 1740 (1974) (decided under former Code 1933, §§ 38-203, 38-205). Record of a conviction is the best evidence of conviction. Johnson v. State, 48 Ga. 116, 1873 Ga. LEXIS 26 (1873) (decided under former Code 1868, §§ 3707, 3709); Beach v. State, 138 Ga. 265, 75 S.E. 139, 1912 Ga. LEXIS 278 (1912), overruled, Wilson v. State, 235 Ga. 470, 219 S.E.2d 756, 1975 Ga. LEXIS 905 (1975) (decided under former Civil Code 1910, §§ 5748, 5752); Howard v. State, 144 Ga. 169, 86 S.E. 540, 1915 Ga. LEXIS 102 (1915) (decided under former Civil Code 1910, §§ 5748, 5752); Swain v. State, 151 Ga. 375, 107 S.E. 40, 1921 Ga. LEXIS 260 (1921) (decided under former Civil Code 1910, §§ 5748, 5752); Lovinger v. State, 39 Ga. App. 116, 146 S.E. 346, 1929 Ga. App. LEXIS 209 (1929) (decided under former Civil Code 1910, §§ 5748, 5752); Corley v. State, 64 Ga. App. 841, 14 S.E.2d 121, 1941 Ga. App. LEXIS 526 (1941) (decided under former Code 1933, §§ 38-203, 38-205); Carroll v. Crawford, 218 Ga. 635, 129 S.E.2d 865, 1963 Ga. LEXIS 284 (1963) (decided under former Code 1933, §§ 38-203, 38-205). Patients’ dental records. - When, in a dentist’s suit to recover income for work performed for a dental clinic, it appeared that the patients’ individual records constituted the primary documentary evidence of their visits, charges, and payments and that those records were otherwise available or accessible, the trial court did not err in refusing to admit plaintiff’s own purported summary as secondary evidence of that information. White v. Dilworth, 178 Ga. App. 226, 342

S.E.2d 709, 1986 Ga. App. LEXIS 1641 (1986) (decided under former O.C.G.A. § 24-5-4). Reconstruction of recorded statement. - Since the tape recorder malfunctioned for a period of time during the giving of defendant’s statement to police, and the interview continued after the recorder had been repaired; since the officers who conducted the interview offered their reconstruction of the interview’s unrecorded portions, and testified that they were substantially the same as the recorded parts; and the recorded statement, as thus supplemented, was admitted only after a Jackson-Denno hearing, there was no error. McGee v. State, 260 Ga. 178, 391 S.E.2d 400, 1990 Ga. LEXIS 197 (1990) (decided under former O.C.G.A. § 24-5-4). Testimony of investigator as to contents of missing affidavits. - Trial court did not err when the court denied the defendant’s motion to suppress even though the unsigned, unsworn document an investigator identified as the investigator’s unsigned affidavit presented at the suppression hearing did not qualify as a “duplicate original” under Georgia law since the affidavit was not made by the same pen stroke at the same time or was not a copy executed at the same time as the “original” of the document; in light of an investigator’s testimony concerning the loss of the sealed packet containing the original search warrants and affidavits, the trial court did not abuse the court’s discretion when the court admitted secondary evidence under former O.C.G.A. § 24-5-21 (see now O.C.G.A. §§ 24-10-1003 and 24-10-1004), i.e., the testimony of the investigator as to the contents of the missing affidavits. Baptiste v. State, 288 Ga. 653, 706 S.E.2d 442, 2011 Ga. LEXIS 161 (2011) (decided under former O.C.G.A. § 24-5-4). Failure to present evidence of permits. - Trial court erred in denying the appellants’ motion for summary judgment because the appellees failed to present evidence sufficient to create a jury issue as to whether the appellants had a duty to inspect the exhaust vent since no permits were produced as evidence and the appellants were only required to inspect if a

permit was issued. Martin v. Ledbetter, 342 Ga. App. 208, 802 S.E.2d 432, 2017 Ga. App. LEXIS 331 (2017). Log sheet with handwritten intoxilyzer results admissible. - Because the original intoxilyzer printouts could not be located even after the investigator conducted a multi-source search, and the defendant did not point the appellate court to any evidence in the record suggesting any bad faith on the part of the state in connection with the missing documents, the trial court did not abuse the court’s discretion in finding that admission of a log sheet with handwritten intoxilyzer results would not violate the best evidence rule. Jones v. State, 345 Ga. App. 14, 812 S.E.2d 337, 2018 Ga. App. LEXIS 169 (2018). Examples of best evidence are found in the following cases. - See Fitzgerald v. Adams, 9 Ga. 471, 1851 Ga. LEXIS 39 (1851) (writing as evidence of transaction) (decided under former law); Cook v. North & S.R.R., 50 Ga. 211, 1873 Ga. LEXIS 243 (1873) (written contract) (decided under former Code 1868, §§ 3707, 3709); White v. Claxton, 12 Ga. App. 141, 76 S.E. 1040, 1913 Ga. App. LEXIS 465 (1913) (written application for insurance) (decided under former Civil Code 1910, §§ 5748, 5752); Probasco v. Shaw, 144 Ga. 416, 87 S.E. 466, 1915 Ga. LEXIS 224 (1915) (unconditional note) (decided under former Civil Code 1910, §§ 5748, 5752); Smith v. Lawrence, 23 Ga. App. 795, 99 S.E. 536, 1919 Ga. App. LEXIS 358 (1919) (specific written agreement) (decided under former Civil Code 1910, §§ 5748, 5752); Bowen v. Mobley, 40 Ga. App. 833, 151 S.E. 667, 1930 Ga. App. LEXIS 722 (1930) (mortgage) (decided under former Civil Code 1910, §§ 5748, 5752); Southern Loan & Inv. Co. v. State, 68 Ga. App. 75, 22 S.E.2d 108, 1942 Ga. App. LEXIS 40 (1942) (charter and bylaws of company) (decided under former Code

1933, §§ 38-203, 38-205); Shaw v. Fehn, 196 Ga. 661, 27 S.E.2d 406, 1943 Ga. LEXIS 414 (1943) (will) (decided under former Code 1933, §§ 38-203, 38-205); Sikes v. State, 76 Ga. App. 883, 47 S.E.2d 677, 1948 Ga. App. LEXIS 477 (1948) (record of trial) (decided under former Code 1933, §§ 38-203, 38-205); Pressley v. State, 205 Ga. 197, 53 S.E.2d 106, 1949 Ga. LEXIS 338 (1949) (verified copy) (decided under former Code 1933, §§ 38-203, 38-205); Delinski v. Dunn, 209 Ga. 402, 73 S.E.2d 171, 1952 Ga. LEXIS 514 (1952) (record of board of corrections and certified copy of sentence) (decided under former Code 1933, §§ 38-203, 38-205); Beard v. Westmoreland, 90 Ga. App. 632, 84 S.E.2d 93, 1954 Ga. App. LEXIS 771 (1954) (duplicate original of property settlement) (decided under former Code 1933, §§ 38-203, 38-205); Carroll v. Crawford, 218 Ga. 635, 129 S.E.2d 865, 1963 Ga. LEXIS 284 (1963) (indictment) (decided under former Code 1933, §§ 38-203, 38-205); Cain v. State, 113 Ga. App. 477, 148 S.E.2d 508, 1966 Ga. App. LEXIS 1101 (1966) (search warrant) (decided under former Code 1933, §§ 38-203, 38-205); Hawes v. Red Oak Hauling Co., 116 Ga. App. 302, 157 S.E.2d 38, 1967 Ga. App. LEXIS 785 (1967) (documents in possession of party) (decided under former Code 1933, §§ 38-203, 38-205); Consolidated Eng’g Co. v. U.I.R. Contractors, 136 Ga. App. 923, 222 S.E.2d 692, 1975 Ga. App. LEXIS 1531 (1975) (checks and vouchers) (decided under former Code 1933, §§ 38203, 38-205); Barrett v. State, 146 Ga. App. 207, 245 S.E.2d 890, 1978 Ga. App. LEXIS 2215 (1978) (duplicate original) (decided under former Code 1933, §§ 38203, 38-205); Ferrell v. State, 149 Ga. App. 405, 254 S.E.2d 404, 1979 Ga. App. LEXIS 1873 (1979), cert. denied, 444 U.S. 1021, 100 S. Ct. 679, 62 L. Ed. 2d 653, 1980 U.S. LEXIS 365 (1980) (traffic citations) (decided under former Code 1933, §§ 38-203, 38-205).

RESEARCH REFERENCES Am. Jur. 2d. 29A Am. Jur. 2d, Evidence, § 1062 et. seq.

C.J.S. 32A C.J.S., Evidence, §§ 1041 et seq., 1050 et seq.

ALR. Parol evidence to prove title to real property when the title is only collaterally involved, 1 A.L.R. 1143. Admissibility in evidence of audit or testimony of auditor or accountant, 52 A.L.R. 1266. Parol-evidence rule: evidence of agreements as to manner or medium of payment of bill or note, or as to credit, setoff, or counterclaim with respect to the same, 71 A.L.R. 548. Admissibility and weight of testimony based on taste, sight, and smell as to unlawful content of liquor, 78 A.L.R. 439. Admissibility as against the beneficiary of life or accident insurance of statements or declarations by the insured outside of his application, 86 A.L.R. 146. Mutilations, alterations, and deletions as affecting admissibility in evidence of public record, 28 A.L.R.2d 1443. Proof, in absence of direct testimony by survivors or eyewitnesses, of who, among occupants of motor vehicle, was driving it at time of accident, 32 A.L.R.2d 988. Admissibility of testator’s declarations upon issue of genuineness or due execution of purported will, 62 A.L.R.2d 855. Carbon copies of letters or other written instruments as evidence, 65 A.L.R.2d 342. Admissibility, in homicide prosecution, of deceased’s clothing worn at time of killing, 68 A.L.R.2d 903. Admissibility in evidence of receipt of third person, 80 A.L.R.2d 915. Proof, in absence of direct testimony, of identity of motor vehicle involved in accident, 81 A.L.R.2d 861. Admissibility in evidence of sample or samples of article or substance of which

the quality, condition, or the like is involved in litigation, 95 A.L.R.2d 681. Effectiveness of stipulation of parties or attorneys, notwithstanding its violating form requirements, 7 A.L.R.3d 1394. Applicability of parol-evidence rule in favor of or against one not a party to contract of release, 13 A.L.R.3d 313. Workmen’s compensation: use of medical books or treatises as independent evidence, 17 A.L.R.3d 993. Admissibility of newspaper article as evidence of the truth of the facts stated therein, 55 A.L.R.3d 663. Admissibility of nonexpert opinion testimony as to weather conditions, 56 A.L.R.3d 575. Admissibility in evidence of sound recording as affected by hearsay and best evidence rules, 58 A.L.R.3d 598. Proof of public records kept or stored on electronic computing equipment, 71 A.L.R.3d 232. Requirement of notice as condition for admission in evidence of summary of voluminous records, 80 A.L.R.3d 405. Sufficiency of evidence that will was not accessible to testator for destruction, in proceeding to establish lost will, 86 A.L.R.3d 980. Admissibility of photographs of stolen property, 94 A.L.R.3d 357. Admissibility of visual recording of event or matter other than that giving rise to litigation on prosecution, 41 A.L.R.4th 877. Application of best evidence rule to electronic evidence, including text messages and e-mail, 12 A.L.R.7th 1.