As used in this chapter, the term:
(Code 1981, §24-10-1001, enacted by Ga. L. 2011, p. 99, § 2/HB 24.)
Cross references.- Definitions that apply to article, Fed. R. Evid. 1001.
Law reviews.- For article, "The Best Evidence Rule Made Better: A Glimpse into Georgia's New Evidence Code," see 19 Ga. St. B.J. 12 (Aug. 2013). For annual survey on evidence law, see 66 Mercer L. Rev. 81 (2014). For note discussing the possible uses of video tape and its admissibility as evidence, see 5 Ga. St. B.J. 393 (1969). For comment on Mitchell v. United States, 214 Ga. 473, 105 S.E.2d 337 (1958), see 21 Ga. B.J. 553 (1959).
JUDICIAL DECISIONS
Editor's notes.
- In light of the similarity of the statutory provisions, decisions under former Code 1873, § 3761, former Civil Code 1910, § 5750, former Code 1933, § 38-204, and former O.C.G.A. § 24-5-1 are included in the annotations for this Code section.
Duplicate original signed by both parties at the same time as the original constituted primary instead of secondary evidence and was admissible without the necessity of first serving a notice to produce the "original." Beard v. Westmoreland, 90 Ga. App. 632, 84 S.E.2d 93 (1954) (decided under former Code 1933, § 38-204); Raulerson v. Jones, 122 Ga. App. 440, 177 S.E.2d 181 (1970);.
Written bill of sale is the best evidence, and parol evidence is inadmissible to show the title to personalty. Epping v. Mockler, 55 Ga. 376 (1875).
Evidence of title.
- If there be written evidence of title that evidence should be produced. Morgan v. Jones, 24 Ga. 155 (1858).
Familiarity with basis for record.
- As a general rule, the testimony of a person who has knowledge of the facts from which books of account are made up is primary evidence as to those facts, and is admissible whether or not the books themselves are put in evidence. Mayor of Buford v. Medley, 58 Ga. App. 48, 197 S.E. 494 (1938).
Oral testimony by a police officer that the officer was certified to operate particular model of intoximeter at the time the officer tested defendant was not barred by the best evidence rule. Clarke v. State, 170 Ga. App. 852, 319 S.E.2d 16 (1984).
Claim under best evidence rule waived.
- Driver waived the driver's claim that the trial court erred in denying the driver's pretrial motion seeking to exclude an injured party from cross-examining the driver about a traffic citation without producing a certified copy of the guilty plea under the former best evidence rule when the driver testified on direct that the driver received a traffic citation in connection with the automobile accident with the injured party and that the driver paid a fine on the citation, and the driver did not object when the injured party asked the driver about the citation without introducing a certified copy. Daniel v. Smith, 266 Ga. App. 637, 597 S.E.2d 432 (2004).
Exact carbon copy.
- When it is proved that a genuine original was executed, proof that a document is an exact carbon copy of that original is sufficient to admit the copy into evidence without proving the loss of the original. Mitchell v. United States, 214 Ga. 473, 105 S.E.2d 337 (1958), for comment, see 21 Ga. B.J. 553 (1959) (decided under former Code 1933, § 38-204).
Production of photocopy of search warrant was sufficient to evidence valid search when issuing magistrate testified that the magistrate searched the magistrate's files and had not found the original warrant, and the police officer who executed the warrant similarly found only the photocopy in the officer's file. Early v. State, 170 Ga. App. 158, 316 S.E.2d 527 (1984).
Unsigned copy of the existing original contract was properly excluded from evidence. Brenard Mfg. Co. v. Winn-Wilkes Drug Co., 31 Ga. App. 200, 120 S.E. 446 (1923).
Altered copy of contract properly excluded.
- When an unaltered original of a contract was available to the plaintiff from the defendant according to the assertion of plaintiff's president at trial but plaintiff's president did not attempt to subpoena the document, the trial court properly exercised the court's discretion in excluding an altered copy of the contract since the plaintiff failed to exercise diligence to obtain the original. Jeff Goolsby Homes Corp. v. Thomas, 181 Ga. App. 308, 352 S.E.2d 172 (1986).
A press letter book is not original but secondary evidence of the contents of the letters. Watkins v. Paine, 57 Ga. 50 (1876).
Witness's notes.
- Best evidence of the expert witness's opinion was the witness's own testimony not the worksheet which the witness had prepared in order to assist the witness in presenting the testimony. Lester v. S.J. Alexander, Inc., 127 Ga. App. 470, 193 S.E.2d 860 (1972).
Illegal hearsay distinguished.
- There is a distinction between illegal testimony and secondary evidence in that hearsay testimony (illegal testimony) has no probative force whatsoever, and its only effect is to prejudice the minds of the jury against the party against whom such hearsay evidence is introduced, while the only objection to secondary evidence is that the evidence is received without first laying the preliminary foundation; such evidence stands on a different footing, and if admitted without objection it is nevertheless competent, for by allowing such evidence without objecting at the time it is sought to be introduced the party waives the party's right to have the best evidence of such fact sought to be proved, and cannot subsequently insist that the court should withdraw such secondary evidence from the consideration of the jury. Rushin v. State, 63 Ga. App. 646, 11 S.E.2d 844 (1940).
Preliminary proof.
- Party must always make the usual preliminary proof for the admission of secondary evidence, or that kind of evidence will not be admitted. Morgan v. Jones, 24 Ga. 155 (1858).
Criminal confessions.
- Rules governing the admission of primary and secondary evidence to establish a contract have no application to the confession of a crime. In making a confession, all that the accused voluntarily wrote, or said, or signed, which is material to the charge, is competent against the accused because it is the accused's own admission, and against the accused's own interest. Cawthon v. State, 71 Ga. App. 497, 31 S.E.2d 64 (1944).
OPINIONS OF THE ATTORNEY GENERAL
Editor's notes.
- In light of the similarity of the statutory provisions, opinions under former Code 1933, § 38-204 are included in the annotations for this Code section.
Photostatic copies made from microfilms are admissible. 1945-47 Op. Att'y Gen. p. 286 (decided under former Code 1933, § 38-204).
RESEARCH REFERENCES9A Am. Jur. Pleading and Practice Forms, Evidence, § 73.
C.J.S.- 32A C.J.S., Evidence, § 1040.
ALR.- 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 evidence of absence of other accidents or injuries from a customary practice or method asserted to be negligent, 42 A.L.R.2d 1055.