The original shall not be required and other evidence of the contents of a writing, recording, or photograph shall be admissible if:
(Code 1981, §24-10-1004, enacted by Ga. L. 2011, p. 99, § 2/HB 24.)
Cross references.- Recording lost or destroyed deeds, see § 44-2-12.
Admissibility of other evidence of content, Fed. R. Evid. 1004.
Law reviews.- For comment on Mitchell v. United States, 214 Ga. 473, 105 S.E.2d 337 (1958), see 21 Ga. B.J. 553 (1959).
JUDICIAL DECISIONSANALYSIS
General Consideration
Editor's notes.
- In light of the similarity of the statutory provisions, decisions under Ga. L. 1858, p. 53, § 1, Ga. L. 1855, p. 138, § 2, former Code 1863, § 3691, former Code 1868, § 3714, former Code 1873, §§ 3767, 3818, 3821, 3822, former Code 1882, § 3767, former Civil Code 1895, §§ 5172, 5173, former Civil Code 1910, §§ 5759, 5829, former Code 1933, §§ 38-211, 38-212, 38-702, and former O.C.G.A. §§ 24-5-2,24-5-3,24-5-5,24-5-21 through24-5-24, and24-5-26 are included in the annotations for this Code section. In light of the reenactment of this Title, effective January 1, 2013, the reader is advised to consult the annotations following Code Section24-10-1003, which may also be applicable to this Code section.
Rule as to the degree of secondary evidence. was that when there was no ground for the presumption that better secondary evidence existed, any proof was received which was admissible by the other rules of law, unless the objecting party can show that better evidence was previously known to the other party, and might have been produced. Doe v. Biggers, 6 Ga. 188 (1849) (decided under former law).
Requirements for admission of secondary evidence
- To admit secondary evidence as by law provided, it was necessary to prove that there had been an original and that the original was lost. Mitchell v. United States, 214 Ga. 473, 105 S.E.2d 337 (1958) (decided under former Code 1933, § 38-702).
While the former statute left the question of diligence to the sound discretion of the court, before secondary evidence could be admitted, the party would be required to show that the party had, in good faith, exhausted, in a reasonable degree, all the sources of information and means of discovery, which the nature of the case suggested and which were accessible to the party. Pendley v. Murphy, 112 Ga. App. 33, 143 S.E.2d 674 (1965) (decided under former Code 1933, § 38-702).
Foundation for secondary evidence.
- Affidavit by a party that an original paper, of which one desired to make proof by secondary evidence, was lost or mislaid, and after diligent search that one cannot find it, was a substantial compliance. Smith v. Atwood, 14 Ga. 402 (1854) (decided under former law).
Recorded instruments.
- Law applied to those deeds and instruments that were, by law, authorized and required to be recorded. Gill v. Strozier, 32 Ga. 688 (1861) (decided under Ga. L. 1858, p. 53, § 1).
Accessibility and diligence.
- In order to introduce secondary evidence of the contents of a lost paper, it was only necessary to establish a reasonable presumption of the paper's loss; and this presumption was held to be established when the party showed that in a reasonable degree, the party had exhausted all the sources of information and means of discovery, which the nature of the cases suggests and which were accessible to the party. Ellis v. Doe, 10 Ga. 253 (1851) (decided under former law); Harper v. Scott, 12 Ga. 125 (1852); Molyneaux v. Collier, 13 Ga. 406 (1853) (decided under former law); Bryan v. Walton, 14 Ga. 185 (1853);(decided under former law);(decided under former law).
Function of trial court was not to determine the worthiness or credibility of secondary evidence, but is only to determine whether what is offered as evidence is the best form accessible to the court. Mulkey v. State, 155 Ga. App. 304, 270 S.E.2d 816 (1980) (decided under former Code 1933, §§ 38-212, 38-702).
Discretion of trial judge.
- Question of inaccessibility of primary evidence and diligence of the party is a determination within the discretion of the trial judge and the judge's decision will not be overturned unless that discretion is abused. Hawes v. Paul, 41 Ga. 609 (1871) (decided under former Code 1868, § 3714); Florida Coca Cola Bottling Co. v. Ricker, 136 Ga. 411, 71 S.E. 734 (1911); Orr v. Dunn, 145 Ga. 137, 88 S.E. 669 (1916) (decided under former Civil Code 1910, § 5759); Brookman v. Rennolds, 148 Ga. 721, 98 S.E. 543 (1919); Bedgood v. State, 100 Ga. App. 736, 112 S.E.2d 430 (1959) (decided under former Civil Code 1910, § 5759); Mulkey v. State, 155 Ga. App. 304, 270 S.E.2d 816 (1980);(decided under former Civil Code 1910, § 5759);(decided under former Code 1933, § 38-212);(decided under former Code 1933, § 38-212).
Discretion of court.
- Exercise of such discretion mentioned in former statute would not be controlled, unless the discretion was abused. Cowart v. Fender, 137 Ga. 586, 73 S.E. 822, 1913A Ann. Cas. 932 (1912) (decided under former Civil Code 1910, § 5829); Metropolitan Life Ins. Co. v. Vickery, 49 Ga. App. 727, 176 S.E. 815 (1934); Mulkey v. State, 155 Ga. App. 304, 270 S.E.2d 816 (1980) (decided under former Code 1933, § 38-702);(decided under former Code 1933, § 38-702).
It was an abuse of discretion to exclude testimony which should have qualified as secondary evidence and which comprised the defendant's most critical defense to the only direct evidence against the defendant. Mulkey v. State, 155 Ga. App. 304, 270 S.E.2d 816 (1980) (decided under former Code 1933, § 38-702).
Secondary evidence admitted without objection.
- Court has a right to charge, and the jury to find, upon secondary evidence, provided the evidence has been introduced without objection. Goodwyn v. Goodwyn, 20 Ga. 600 (1856) (decided under former law).
Party as witness.
- Proof that a paper was lost or destroyed lays a proper foundation for the admission of secondary evidence, and a party was a competent witness to this point. Mulkey v. State, 155 Ga. App. 304, 270 S.E.2d 816 (1980) (decided under former Code 1933, § 38-212).
If witnesses are unknown, it is not necessary to prove that the alleged lost original writing was executed with any particular formality in order to admit secondary evidence of the writing's contents. Sharp v. Autry, 185 Ga. 160, 194 S.E. 194 (1937) (decided under former Code 1933, § 38-212).
Former O.C.G.A. § 24-5-21 applied both to secondary documentary evidence and to parol testimony. Croxton v. Leggett Motor Rebuilding, 168 Ga. App. 258, 308 S.E.2d 640 (1983) (decided under former O.C.G.A. § 24-5-21).
Parol evidence.
- Contents of a lost writing may be established by parol. Segars v. City of Cornelia, 60 Ga. App. 457, 4 S.E.2d 60 (1939) (decided under former Code 1933, § 38-212); Cummings v. State, 84 Ga. App. 698, 67 S.E.2d 156 (1951);(decided under former Code 1933, § 38-212).
Contents of lost writing may be established by parol. Segars v. City of Cornelia, 60 Ga. App. 457, 4 S.E.2d 60 (1939) (decided under former Code 1933, §§ 38-607, 38-610, and 38-611).
Original photographic line-up lost.
- Admission of a photocopy of an original photographic lineup did not violate the best evidence rule since the original photographic copy was missing from the state's file and the photocopies were clear enough to be easily recognizable. Pinson v. State, 266 Ga. App. 254, 596 S.E.2d 734 (2004) (decided under former O.C.G.A. § 24-5-23).
Copy as evidence.
- When an approved copy is in evidence, parol testimony as to its contents is inadmissible. Shedden v. Heard, 110 Ga. 461, 35 S.E. 707 (1900) (decided under former Civil Code 1895, § 5173); Williams v. Waters, 36 Ga. 454 (1867) See also (decided under former Code 1863, § 3691).
Secondary evidence was found admissible in the following cases.
- See Hawes v. Paul, 41 Ga. 609 (1871) (material evidence) (decided under former Code 1868, § 3714); Sims v. Scheussler, 2 Ga. App. 466, 58 S.E. 693 (1907) (certified copy of deed) (decided under former Civil Code 1895, § 5172); Sharp v. Autry, 185 Ga. 160, 194 S.E. 194 (1937) (circumstantial evidence) (decided under former Code 1933, § 38-212); Everitt v. Harris, 67 Ga. App. 64, 19 S.E.2d 545 (1942) (carbon copies) (decided under former Code 1933, § 38-212); Saliba v. Saliba, 202 Ga. 791, 44 S.E.2d 744 (1947) (circumstantial evidence) (decided under former Code 1933, § 38-212); Mulkey v. State, 155 Ga. App. 304, 270 S.E.2d 816 (1980) (critical evidence) (decided under former Code 1933, § 38-212).
Inaccessibility
Inaccessibility was found in the following cases.
- See Jackson v. Johnson, 67 Ga. 167 (1881) (administrator's bond in foreign state) (decided under former Code 1873, § 3767); Sims v. Scheussler, 2 Ga. App. 466, 58 S.E. 693 (1907) (mortgage) (decided under former Civil Code 1895, § 5172); Davis v. State, 25 Ga. App. 532, 103 S.E. 819 cert. denied, 25 Ga. App. 840 (1920) (telegraph messages) (decided under former Civil Code 1910, § 5759); Beall v. Francis, 163 Ga. 894, 137 S.E. 251 (1927) (certified copy of marriage contract) (decided under former Civil Code 1910, § 5759); Carpenter v. State, 140 Ga. App. 368, 231 S.E.2d 97 (1976) (golf membership card) (decided under former Code 1933, § 38-212); Knox v. State, 165 Ga. App. 26, 299 S.E.2d 105 (1983) (laboratory) (decided under former O.C.G.A. § 24-5-2); General Ins. Servs., Inc. v. Marcola, 231 Ga. App. 144, 497 S.E.2d 679 (1998) (contract) (decided under former O.C.G.A. § 24-5-2).
Diligence
Proof of diligence.
- While upon proof that a paper was lost, secondary evidence as to the paper's contents was admissible, the mere statement of a party that a paper "is lost" was nothing but a conclusion of the witness, and, in the absence of testimony as to any search for the missing paper, or other facts to support the witness's conclusion, such secondary evidence, on timely objection, should be rejected. Underdonk & Pitts v. Jester, 17 Ga. App. 419, 87 S.E. 680 (1916) (decided under former Civil Code 1910, § 5829).
Since, during the giving of defendant's statement to police the tape recorder malfunctioned for a period of time, 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 the statements 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) (decided under former O.C.G.A. § 24-5-21).
Diligence was found.
- When absence of letter in court was explained by the receiver of the letter, as was the receiver's diligence in searching for the letter, and in no other way could this letter be accounted for but that it was "lost," this was good and reasonable cause for inaccessibility. Mulkey v. State, 155 Ga. App. 304, 270 S.E.2d 816 (1980) (decided under former Code 1933, § 38-212).
Diligence was not found.
- Copy of a deed taken from the register is not admissible evidence against the grantee, without notice to the grantee to produce the original. Solomon & Son v. Creech, 82 Ga. 445, 9 S.E. 165 (1889) (decided under former Code 1882, § 3767).
Admission in evidence of testimony as to the contents of a lost document was error since there was not sufficient evidence of the diligence of the defendants to show its nonavailability. Pendley v. Murphy, 112 Ga. App. 33, 143 S.E.2d 674 (1965) (decided under former Code 1933, § 38-702).
Application
1. In General
Copy of contract admissible.
- Since the original copy of a contract was admittedly destroyed by the defendant, and testimony was introduced that the plaintiff and the third party to the contract formally executed the original, though there was no evidence that the defendant ever signed the contract, and there was evidence to the effect that the defendant followed the provisions of the contract until the parties had a falling out, evidence was sufficient to infer that defendant had received the benefits of such contract and to admit the copy into evidence over the defendant's objection. Silvey v. Wynn, 102 Ga. App. 283, 115 S.E.2d 774 (1960) (decided under former Code 1933, § 38-702).
Illegible writing as part of contract.
- 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).
Record.
- Mere failure of the record, as appeared in the writ book, to show the existence of a portion of the record of a lost paper was not conclusive of the nonexistence of the paper, but the existence and the contents of such lost portion of a record could be established by parol. Benton v. Maddox, 52 Ga. App. 813, 184 S.E. 788 (1936) (decided under former Code 1933, § 38-702).
Letters.
- When letters which would be admissible in evidence were lost or destroyed, the letters' contents are provable by parol after proof of loss or destruction. Marietta Sav. Bank v. Janes, 66 Ga. 286 (1881) (decided under former Code 1873, § 3832); Knox v. Harrell, 26 Ga. App. 772, 107 S.E. 594; 26 Ga. App. 801 (1921), cert. denied,(decided under former Civil Code 1910, § 5829).
Trial court's admission of a photocopy of a letter examined by a documents examiner did not violate the 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) (decided under former O.C.G.A. § 24-5-21).
Last person who had custody of letter must make a complete and proper showing with respect to the alleged nonexistence or inaccessibility or loss of the letter; merely asserting the loss, without showing diligence in attempting to provide the item, will not do. Mulkey v. State, 155 Ga. App. 304, 270 S.E.2d 816 (1980) (decided under former Code 1933, § 38-702).
Memorandum of terms of settlement.
- When a memorandum of the terms of a settlement was reduced to writing, and handed to defendant's agent, parol evidence as to the memorandum's contents was admissible when such agent testified that the agent never had such memorandum, or if the agent ever had the memorandum in the agent's possession, the memorandum was lost or mislaid even though no notice to produce was served either on the defendant or the agent. Carr v. Smith, 58 Ga. 361 (1877) (decided under former Code 1873, § 3832).
Proving lost antenuptial agreement.
- In a divorce case, applying the preponderance of the evidence standard, and deferring to the trial court's finding that both a husband and a wife believed their opposing positions regarding the contents of a lost antenuptial agreement, the husband failed to prove the terms of the lost agreement, and the agreement could not be enforced. Coxwell v. Coxwell, 296 Ga. 311, 765 S.E.2d 320 (2014).
Original document, not disclosed during discovery, excluded.
- When the defendant introduced evidence to show that a contract had been altered, and when the plaintiff then tendered the original of the contract, which contained blank spaces, the original was properly excluded by the trial court on the basis that the plaintiff had not disclosed the original's existence during discovery. White v. Lance H. Herndon, Inc., 203 Ga. App. 580, 417 S.E.2d 383, cert. denied, 203 Ga. App. 908, 417 S.E.2d 383 (1992) (decided under former O.C.G.A. § 24-5-21).
Contents of a journal.
- Trial court did not err in ruling that the best evidence rule precluded defendant's wife from testifying about the contents of the victim's journal because the victim testified that the victim threw the journal away; there was no harm in the trial court's refusal to allow further testimony about the contents of the journal as the victim testified that the victim did not include the sexual assaults in the journal, and the wife's testimony about the journal's contents was consistent with the victim's testimony. Eley v. State, 266 Ga. App. 45, 596 S.E.2d 660 (2004), overruled on other grounds by State v. Burns, 829 S.E.2d 367, 2019 Ga. LEXIS 400 (Ga. 2019) (decided under former O.C.G.A. § 24-5-21).
Failure to account for warranty.
- In a consumer's suit against a car dealer for breach of a written warranty, regarding the sale of a used car which the dealer's salesperson falsely represented had not been in a wreck, it was not error for the trial court to grant a directed verdict to the dealer because, while the consumer testified that the dealer sold the consumer a written warranty for the vehicle, the consumer did not produce the warranty or account for the warranty's absence, rendering the testimony inadmissible under the best evidence rule. Mitchell v. Backus Cadillac-Pontiac, Inc., 274 Ga. App. 330, 618 S.E.2d 87 (2005) (decided under former O.C.G.A. § 24-5-21).
Failure to present evidence on 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).
Exemplified copy of will.
- Exemplified copy of a will from the ordinary's office was presumptive proof that the will was properly probated, otherwise the will could not have been recorded. Thursby v. Myers, 57 Ga. 155 (1876) (decided under former Code 1873, §§ 3818, 3821, 3822).
Presumption in favor of proper probate was raised when the records were burnt. Oliver v. Persons, 30 Ga. 391, 76 Am. Dec. 657 (1860) (decided under Ga. L. 1858, p. 53, § 1).
Transcript of tape recording.
- Best evidence rule did not apply to a tape recorded statement and, therefore, a transcript of a tape recorded statement was admissible when the court determined that a reasonable necessity existed for the reading of the transcript rather than experiencing a delay caused by the additional effort of playing the tape before the court. In re F.L.P., 184 Ga. App. 164, 361 S.E.2d 43 (1987) (decided under former O.C.G.A. § 24-5-3).
Oral testimony.
- Trial court did not err in allowing a witness to testify that the defendant signed personal guaranties of defendant's company's prior indebtednesses to the plaintiff since the failure to produce the original of such personal guaranties was explained and oral testimony was shown to be the "best" secondary evidence of the guaranties' existence. Dedousis v. First Nat'l Bank, 181 Ga. App. 425, 352 S.E.2d 577 (1986) (decided under former O.C.G.A. § 24-5-5).
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) (decided under former O.C.G.A. § 24-5-2).
Records destroyed.
- Trial court erred in directing a verdict as to damages after a landlord satisfied the requirement for submitting secondary evidence by establishing that the primary evidence, the purchase invoices, had been destroyed and that higher secondary evidence from the company was unavailable; the oral evidence as to the wholesale fair market value and as to the dealer's discount, based upon the actual damaged parts, was sufficient secondary evidence to go to a jury. Hodges v. Vara, 268 Ga. App. 815, 603 S.E.2d 327 (2004) (decided under former O.C.G.A. §§ 24-5-2 and24-5-3).
Admission of W-2 and spouse's memory to prove income of deceased.
- In a spouse's wrongful death suit against the Georgia Department of Transportation, the trial court did not err by allowing the surviving spouse to testify as to that spouse's memory of the deceased spouse's income as the question at issue concerned the prior earnings of the deceased spouse, not the actual contents of prior paychecks. Although W-2 forms and other documentary evidence certainly contained evidence of the past earnings, those documents did not preclude the admission of other evidence to prove the actual fact at issue, namely, the amount of the deceased spouse's income. DOT v. Baldwin, 292 Ga. App. 816, 665 S.E.2d 898 (2008) (decided under former O.C.G.A. § 24-5-2).
No application to videotapes.
- Former O.C.G.A. § 24-5-21 applied to writings, not videotapes. Bowen v. State, 237 Ga. App. 597, 516 S.E.2d 311 (1999) (decided under former O.C.G.A. § 24-5-21).
Original of exhibit inadvertently removed from attorney's office.
- When a witness testified that the original of an exhibit was prepared by the witness, and that the exhibit was an exact copy of the original, and when the plaintiff's attorney stated in plaintiff's place that the original had been given to the attorney and several copies made, and also stated that through inadvertence the original went out of the attorney's office as an exhibit to the complaint and could not be located, the trial judge did not abuse judicial discretion in admitting the exhibit. Palmer v. Wilkins, 163 Ga. App. 104, 294 S.E.2d 355 (1982) (decided under former O.C.G.A. § 24-5-21).
Certifications from manufacturer as to accuracy of radar device were admissible under business records rule although the officer testifying did not have personal knowledge of the correctness of the record and did not make entries personally, and the person who made entries did not testify. Wiggins v. State, 249 Ga. 302, 290 S.E.2d 427 (1982) (decided under former O.C.G.A. § 24-5-26).
2. Real Estate Transactions
Evidence of title to land.
- If there is written evidence of title to land, it must be produced in order to prove its contents; and before secondary evidence was competent to show its contents, it must first be shown to the court that the original one existed, that it was properly executed and that it was either lost or destroyed, or for some other sufficient cause was not accessible to the diligence of the party. Head v. Lee, 203 Ga. 191, 45 S.E.2d 666 (1947) (decided under former Code 1933, § 38-212).
Deed.
- If a party wishes to introduce a copy of a deed in evidence, it will be a sufficient compliance with the rule to swear that the original deed in the party's belief was lost or destroyed, and the deed was not in the party's custody, power, or control. Ratteree v. Nelson, 10 Ga. 439 (1851) (decided under former law); Drew v. Drew, 146 Ga. 479, 91 S.E. 541 (1917);(decided under former Civil Code 1910, § 5829).
Deed on record.
- Deed should be held to be legally and properly on record by due proof of signing, sealing, and delivery until the contrary appears. Walls v. Smith, 19 Ga. 8 (1855) (decided under Ga. L. 1855, p. 138, § 2).
Deed in hands of nonresident grantee.
- Parol evidence of the contents of a deed to land in this state is not admissible under the theory that the original deed is in the hands of nonresident grantees who are not parties to the suit, and therefore beyond the power of the court, without making preliminary proof that the deed was not duly recorded. McConnell Bros. v. Slappey, 134 Ga. 95, 67 S.E. 440 (1910) (decided under former Civil Code 1895, § 5173).
Purchaser of land.
- Equity will grant no relief in favor of one who buys land, when one fails to exercise any diligence for one's protection, and asserts that one blindly relied on the representations of the seller as to matters of which one could have informed oneself. Browning v. Richardson, 181 Ga. 413, 182 S.E. 516 (1935) (decided under former Code 1933, § 38-211).
Attesting witnesses to deed not necessary.
- When a deed has been recorded and lost and the record has been destroyed, a copy of the original may be proved by the person who made the deed, and the attesting witnesses need not be called for that purpose. Fletcher v. Horne, 75 Ga. 134 (1885) (decided under former Code 1863, §§ 3741, 3744, 3745).
3. Criminal Matters
Certified copy of conviction is not secondary evidence.
- To impeach a witness by a prior conviction, the conviction must be proved by the record of the conviction itself. The certified copy of a conviction was primary evidence, as opposed to secondary evidence, and was the best proof. Howard v. State, 204 Ga. App. 743, 420 S.E.2d 594 (1992) (decided under former O.C.G.A. § 24-5-2).
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).
Accounting for absence of best evidence by deputy.
- Hearsay testimony of a deputy about the contents of a missing letter that the defendant allegedly wrote and sent to the 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) (decided under former O.C.G.A. § 24-5-21).
Destruction of notebook not in bad faith.
- Officer's testimony regarding writings in a notebook that no longer existed was properly admitted because it was undisputed that the officer lost, misplaced, or destroyed the notebook but there was no evidence that the state intentionally destroyed the notebook in bad faith. Ceballos v. State, 345 Ga. App. 714, 815 S.E.2d 89 (2018).
Evidence lost 13 years after use at earlier trial.
- Although a note that the defendant left after stabbing the defendant's ex-wife 13 years earlier could not be located, the state explained that the state had attempted to locate the note in the prior prosecutor's file and it was believed destroyed. At the defendant's trial for the slaying of an ex-female friend, at which the defendant left a similar note, an officer was properly allowed to testify as to the officer's recollection of the first note's contents. Hooks v. State, 295 Ga. 835, 764 S.E.2d 409 (2014)(decided under former O.C.G.A. §§ 24-5-4 and24-5-21).
Perjury proven through witness testimony.
- Since an original record of the trial during which the perjury with which the defendant was charged occurred was unavailable and could not be produced despite the exercise of the state's due diligence, the state was authorized to prove the defendant's perjured testimony through witness testimony. Walker v. State, 314 Ga. App. 714, 725 S.E.2d 771 (2012) (decided under former O.C.G.A. § 24-5-2).
When the defendant was convicted of three counts of computer or electronic pornography and child exploitation, the trial court did not plainly err in admitting a retired police officer's testimony during the trial about the retired officer's investigation of an alleged similar transaction in 2008 because it was undisputed that the relevant videos and photographs from the 2008 investigation were destroyed when the hard drive used in that investigation crashed; there was no evidence that the state intentionally destroyed the videos and photographs in bad faith; and the admission of the retired officer's identification testimony did not affect the outcome of the trial as the evidence of the defendant's guilt was overwhelming. Patch v. State, 337 Ga. App. 233, 786 S.E.2d 882 (2016).
Copies of affidavit and search warrant at motion to suppress hearing.
- While the trial court errs in considering copies of an affidavit and search warrant at a motion to suppress hearing, without requiring the originals to be accounted for, the subsequent inclusion of the originals in the record obviates any technical error which may result. Williams v. State, 168 Ga. App. 614, 309 S.E.2d 856 (1983) (decided under former O.C.G.A. § 24-5-2).
OPINIONS OF THE ATTORNEY GENERAL
Editor's notes.
- In light of the similarity of the statutory provisions, opinions under former Code 1933, §§ 38-620 and 38-621, are included in the annotations for this Code section.
Correction of records.- Clerk may not correct a misnomer in a marriage record but, when the record was incorrectly made, the clerk may rerecord the certificate just as the certificate was, with the additional recording of the affidavits attached to the certificate, and cross-index the original record and the new one. 1945-47 Op. Att'y Gen. p. 86 (decided under former Code 1933, §§ 38-620 and 38-621).
Indictment.- Clerk's certification that the indictment was lost was not sufficient replacement for a certified copy of the actual indictment. 1970 Op. Att'y Gen. No. 70-61 (decided under former Code 1933, §§ 38-620 and 38-621).
RESEARCH REFERENCES
Am. Jur. 2d.
- 29 Am. Jur. 2d, Evidence, § 453.
29A Am. Jur. 2d, Evidence, § 1066.
C.J.S.- 32A C.J.S., Evidence, §§ 1040, 1049 et seq., 1089 et seq., 1098 et seq.
ALR.
- Meaning of "duplicate," 24 A.L.R. 1209.
Admissibility in evidence of audit or testimony of auditor or accountant, 52 A.L.R. 1266.
Admissibility of secondary evidence of incriminating document in possession of defendant, 67 A.L.R. 77.
Carbon copies of letters or other written instruments as evidence, 65 A.L.R.2d 342.
Photographic representation or photostat of writing as primary or secondary evidence within best evidence rule, 76 A.L.R.2d 1356.
Modern status of rules as to use of motion in limine or similar preliminary motion to secure exclusion of prejudicial evidence or reference to prejudicial matters, 63 A.L.R.3d 311.
Application of best evidence rule to electronic evidence, including text messages and e-mail, 12 A.L.R.7th 1.