In connection with my annual updates to Georgia Law of Evidence, I read hundreds of cases (at least) every year from the Georgia Court of Appeals and Supreme Court dealing with interpretations of the Georgia Evidence Code. Last night, I read one that caught my attention because the issue was seemingly simple, and a piece of evidence should have been admitted. But because of the way the issue was argued at trial, the straightforward method of admitting the evidence never came up, and ultimately, under a different (and more complicated) method, the evidence was excluded because the evidence didn’t meet the standard required.
The case (Arnold v. Liggins, 368 Ga. App. 544 (June 29, 2023)) involved a car wreck in which the plaintiff, Liggins, was injured. The Fulton County jury ultimately returned a verdict of $70,000, and the judge added more than $23,000 in attorneys’ fees under a statute that permits those fees to be awarded where a defendant declines to accept an offer under certain circumstances (OCGA § 9-11-68).
On appeal, the defendant argued that a statement purportedly made by the plaintiff after an earlier wreck that he was experiencing back pain. The statement was contained in a police report following that earlier wreck, and the defendant sought to introduce the earlier statement as an “present sense impression” of the plaintiff under OCGA § 24-8-803(1), which is a well-known hearsay exception. The report itself was also hearsay, and it was sought to be introduced under two alternative hearsay exceptions permitting the use of hearsay contained in business records (OCGA § 24-8-803(6)) and public records (OCGA § 24-8-803(6)).
The primary issue in the appeal was whether the plaintiff’s statement in the earlier police report met the requirements to qualify as a “present sense impression” so that it could be admitted over a hearsay objection, and the Georgia Court of Appeals ultimately concluded that it did not. Among other things, the court ruled that “there is nothing in the record establishing the circumstances surrounding Liggins’s declaration of pain in this case. For example, there is no indication of how soon after the collision Liggins complained of pain nor whether he made the declaration spontaneously.” In other words, the defendant had not proven that the statement was made of at the time the plaintiff was experiencing back pain, or whether it was merely a recollection of past pain. Nuances of this sort can be critical to whether hearsay is admitted in a case.
The question that immediately came to mind while I was reading the opinion was “why wasn’t this simply admissible as a party admission?” To summarize, generally, a statement of an opposing party is admissible even if it would otherwise be hearsay. This is a specific exclusion from the hearsay rule provided by the Evidence Code, and when it applies, no hearsay analysis, such as the one undertaken by the Court of Appeals in this case, is necessary.
The answer was contained in footnote 2 to the decision:
“Notably, Arnold does not contend on appeal, and did not argue before the trial court, that Liggins’s statement was admissible non-hearsay because it was an admission by a party-opponent within the meaning of OCGA § 24-8-801 (d)(2).”
The statement of the plaintiff appears to have clearly been an admission, and the police report was otherwise admissible as a business record or public record. But because the defendant did not argue that it was an admission, and instead took the more difficult approach of attempting to lay a hearsay foundation (that the court ultimately found was not established) the statement was not admissible.
The case illustrates the importance of making the right evidence argument to the court. In an earlier case, the Georgia Supreme Court found, in Chrysler Group, LLC v. Walden, 303 Ga. 358 (March 15, 2018), that the defendant, Chrysler, had not argued under Georgia’s new Evidence Code that certain allegedly prejudicial evidence should be excluded from trial. OCGA § 24-4-403 addresses the allegedly prejudicial evidence and is the proper rule to be argued when a party wishes to keep the evidence from the jury’s consideration, but Chrysler cited cases under the old Evidence Code on this point that were no longer binding (the evidence concerned the income of Chrysler’s CEO). Although the Supreme Court still considered the argument, it was considered under the “plain error” review standard, which made it much more difficult for the party challenging the evidence to prevail, and, in fact, the Supreme Court concluded that the trial court properly admitted the evidence. Had the correct objection been made, however, the outcome may well have been different.
The Court of Appeals in Arnold also addressed a second point. As noted, the trial court awarded attorneys’ fees to the plaintiff. However, the court held that the offer that led to the award was not properly sent by certified mail as required by the statute. Therefore, that portion of the judgment was reversed.