An authenticating witness shall not be deemed unavailable as a witness if his or her exemption, refusal, claim of lack of memory, inability, or absence is due to the procurement or wrongdoing of the proponent of an authentication for the purpose of preventing the witness from attending or testifying.
(Code 1981, §24-9-923, enacted by Ga. L. 2011, p. 99, § 2/HB 24.)
Law reviews.- For article, "Understanding and Challenging Photographic Evidence: What the Camera Never Saw," see 10 Ga. St. B.J. 20 (2004).
JUDICIAL DECISIONSANALYSIS
General Consideration
Editor's notes.
- In light of the similarity of the statutory provisions, decisions under former O.C.G.A. § 24-4-48 are included in the annotations for this Code section.
Brief nonresponsive reference to polygraph test did not open the door to the cross-examination of a witness about the witness's polygraph test; additionally, the polygraph reference did not prejudice a defendant because the reference indicated nothing about the results of the polygraph. Franks v. State, 278 Ga. 246, 599 S.E.2d 134 (2004), cert. denied, 543 U.S. 1058, 125 S. Ct. 870, 160 L. Ed. 2d 784 (2005) (decided under former O.C.G.A. § 24-4-48).
Internet chat session transcript admissible.
- Transcript of an internet chat session was admissible because the operator of the machine which produced the transcript, or one who personally witnessed the events recorded, testified that the videotape accurately portrayed what the witness saw take place at the time the events occurred. Ford v. State, 274 Ga. App. 695, 617 S.E.2d 262 (2005) (decided under former O.C.G.A. § 24-4-48).
Transcript of an Internet chat room conversation between defendant and a police officer, posing as a 14-year-old girl, was properly admitted as similar transaction evidence in defendant's trial for pimping, contributing to the delinquency of a minor, and sexual exploitation of a minor; the officer was present to testify, personally witnessed the real-time chat recorded in the transcript as it was taking place, and testified that the transcript accurately represented the on-line conversation; the officer's testimony was tantamount to that of a witness to an event and was sufficient to authenticate the transcript. Ford v. State, 274 Ga. App. 695, 617 S.E.2d 262 (2005) (decided under former O.C.G.A. § 24-4-48).
Cited in Rodriguez-Nova v. State, Ga. S.E.2d (2014).
Audiotapes
9-1-1 call admissible.
- An audiotape of a witness's9-1-1 emergency telephone call that was admitted into evidence without meeting foundation requirements was properly authenticated by testimony of the witness that the witness had reviewed the tape and that the tape accurately portrayed the conversation the witness had with the9-1-1 operator, with no deletions, additions, or alterations. Hudson v. State, 273 Ga. 124, 538 S.E.2d 751 (2000) (decided under former O.C.G.A. § 24-4-48).
Audiotape of two9-1-1 calls was properly admitted into evidence since the records custodian of the county9-1-1 communications bureau presented detailed testimony as to the process used in producing both the original audiotapes and the copy admitted into evidence, the records custodian explained that calls are automatically recorded without the intervention of the 9-1-1 operator, and the records custodian further testified that the copy was a true and correct copy of the original recording. Shaw v. State, 247 Ga. App. 867, 545 S.E.2d 399 (2001) (decided under former O.C.G.A. § 24-4-48).
Although the9-1-1 operator did not speak Spanish, because the operator reviewed the recording, identified the recording as a fair and accurate reproduction of the call with no additions or deletions, recognized the operator's own voice, and identified the interpreter's voice, the trial court did not abuse the court's discretion when the court admitted the recording of the9-1-1 call, regardless of the operator's inability to understand the Spanish portions of the recorded conversation. Rodriguez-Nova v. State, 295 Ga. 868, 763 S.E.2d 698 (2014)(decided under former O.C.G.A. § 24-4-48).
Audiotape of deceased victim admissible.
- With regard to a defendant's convictions for malice murder and kidnapping with bodily injury as a result of the defendant killing a former girlfriend who was also the mother of the defendant's two children, the trial court did not err by admitting an audiotape of a telephone conversation between the victim and the defendant since the state laid a proper foundation for the admission of the audiotape by adequately demonstrating that the victim was the person who made the tape, the victim was a party to the conversation, and the tape was not inadmissible under O.C.G.A. § 16-11-62. Griffin v. State, 282 Ga. 215, 647 S.E.2d 36 (2007), overruled on other grounds, Garza v. State, 284 Ga. 696, 670 S.E.2d 73 (2008) (decided under former O.C.G.A. § 24-4-48).
Proper foundation for admission of audiotape.
- Deed grantee laid a proper foundation pursuant to former O.C.G.A. § 24-4-48(c) (see now O.C.G.A. § 25-9-923) for purposes of admission of an audiotape in a deed grantor's action to set aside the deed since the grantee testified that the tape was of a voice mail left on a cell phone that went unanswered, and that the voice on the tape was that of the grantor. Dae v. Patterson, 295 Ga. App. 818, 673 S.E.2d 306 (2009), overruled on other grounds by Southall v. State, 2017 Ga. LEXIS 33 (Ga. 2017) (decided under former O.C.G.A. § 24-4-48).
Proper foundation for admission of automated recording.
- Evidence of a recording of a phone call made from the county jail in which the defendant admitted that the defendant was at the house where the victim was shot at the time of the murder was admissible as competent evidence tended to show reliably that the automated recording was in fact a recording of the phone call that the defendant made from jail because the state showed, through the testimony of a lieutenant that the jail recording system accurately recorded phone calls and that the system recorded the defendant's phone call at the time that the call was made; and an investigator with the Georgia Bureau of Investigation, who knew the defendant's voice, testified that the man in the recording sounded like the defendant. Jones v. State, 299 Ga. 40, 785 S.E.2d 886 (2016).
Improper foundation for admission of audiotape in controlled drug buy.
- Trial court erred in admitting an audiotape recording of a controlled drug sale by a confidential informant (CI) with defendant as neither party to the sale testified as to the authenticity and accuracy of the recording, and former O.C.G.A. § 24-4-48 could not be the vehicle by which the tape was admitted because the essential criterion, the unavailability of an authenticating witness, could not be met; another audiotape of a second controlled buy was properly admitted as a police officer who listened to the transaction via a bug that had been attached to the CI testified that the tape recording was a fair and accurate portrayal of the conversation. Brown v. State, 274 Ga. App. 302, 617 S.E.2d 227 (2005) (decided under former O.C.G.A. § 24-4-48).
Claim of error in admission of tape rejected.
- Defendant's claim that an audiotape was improperly admitted into evidence was rejected as defendant did not include the tape in the record and defendant failed to specify the harm that resulted from any error in admitting the tape. Dupree v. State, 267 Ga. App. 561, 600 S.E.2d 654 (2004) (decided under former O.C.G.A. § 24-4-48).
Transcript of audiotape and photographs.
- Since a proper foundation for a transcript of defendant's statements to the police was laid by the trial court properly informing the jury that the transcript was not to be considered independent evidence, and that the jury had to return the transcript after listening to an audiotape thereof, admission of the transcript was proper; in addition, the photographs of the victim, which were not unduly gruesome or prejudicial, were admissible. Palmer v. State, 277 Ga. 124, 587 S.E.2d 1 (2003) (decided under former O.C.G.A. § 24-4-48).
Photos
Proper foundation for admission of photo.
- Since the defendant failed to establish the photo's origins or source, and also failed to connect the photo to the threatening letters defendant claimed defendant received while in jail, under former O.C.G.A. § 24-4-48(b), the trial court did not abuse the court's discretion in finding that a proper foundation was not laid for the photo's admission. Sweet v. State, 276 Ga. 545, 580 S.E.2d 231 (2003) (decided under former O.C.G.A. § 24-4-48).
Defendant's motion for a mistrial based on the admission of a photograph of the victim's head was not an abuse of discretion as: (1) if pre-autopsy photographs were relevant and material to any issue in the case, they were admissible even if they were duplicative and might inflame the jury; (2) photographs showing the extent and nature of the victim's wounds were material and relevant, even if the cause of death was not in dispute; (3) the state had the burden to prove beyond a reasonable doubt that the defendant caused the death of the victim with malice aforethought; and (4) the photograph was relevant to the state's claim that the defendant had done so by shooting a single shot into the victim's head with a .38 revolver. Bradley v. State, 281 Ga. 173, 637 S.E.2d 19 (2006) (decided under former O.C.G.A. § 24-4-48).
It was within the broad discretion of the trial court to allow photographs to be introduced to show the locations of two docks during the time frames testified to by a landowner because notwithstanding that the witness who obtained the photographs did not have the exact same aerial view as the tendered photographs, the witness explained the basis for the testimony as to the date of the photographs and testified that the photographs accurately depicted those locations as of those time periods. Dillon v. Reid, 312 Ga. App. 34, 717 S.E.2d 542 (2011) (decided under former O.C.G.A. § 24-4-48).
Child victim provided proper foundation.
- Photos that were introduced not to show that they accurately represented the sexual events depicted, but rather to show that the defendant possessed sexually explicit photographs, were admissible after the photos were identified by the child victim as being photographs shown to the victim by the defendant and by other witnesses as the photos shown to the child victim on the defendant's computer. Abernathy v. State, 278 Ga. App. 574, 630 S.E.2d 421 (2006) (decided under former O.C.G.A. § 24-4-48).
Trial court did not abuse the court's discretion in admitting numerous sexually explicit photographs and several video recordings into evidence as they were authenticated by showing the photographs to either minor victim during their testimony and having them identify themselves as being fairly depicted therein; in addition, both victims also testified that they viewed the digital video recordings prior to the admission of that evidence and were able to recognize themselves as being fairly depicted in those recordings. Walthall v. State, 281 Ga. App. 434, 636 S.E.2d 126 (2006) (decided under former O.C.G.A. § 24-4-48).
No foundation for admission of photo.
- Trial court properly refused to admit photos of a subdivision, tendered by a utility to rebut testimony by the condemnees' appraiser that property around power lines was usually the last piece of residential property to be developed, and was usually relegated to low income housing because the utility (1) failed to authenticate the pictures by showing the identity or address of the subdivision; (2) failed to present any evidence as to the value of the property in the pictures; and (3) failed to demonstrate whether the subdivision was built before or after the power lines were installed. Ga. Power Co. v. Jones, 277 Ga. App. 332, 626 S.E.2d 554 (2006) (decided under former O.C.G.A. § 24-4-48).
Trial court erred in allowing an officer to identify the defendant in two surveillance photographs, based on the officer's familiarity with the defendant's appearance and absent a change in the defendant's appearance, because the testimony was offered to establish a fact which the jurors could decide for themselves; hence, the evidence was erroneously admitted as invading the jury's province to decide the issue. Mitchell v. State, 283 Ga. App. 456, 641 S.E.2d 674 (2007) (decided under former O.C.G.A. § 24-4-48).
Photos of a deceased body.
- Photographs of a victim's body after the body had been taken to the crime lab were material, relevant, and admissible as the photographs showed the location, nature, and extent of the victim's multiple gunshot wounds. Thomason v. State, 281 Ga. 429, 637 S.E.2d 639 (2006) (decided under former O.C.G.A. § 24-4-48).
Trial court did not err in admitting two post-incision autopsy photographs of the victim, despite the fact that the depicted injuries might not have been the direct cause of the victim's death, as the internal injuries could not have been shown by photographs of the outside of the body and were material in corroborating the details of the assault on the victim, which ultimately resulted in death. Lyons v. State, 282 Ga. 588, 652 S.E.2d 525 (2007), overruled on other grounds, Garza v. State, 2008 Ga. LEXIS 865 (Ga. 2008) (decided under former O.C.G.A. § 24-4-48).
In a defendant's prosecution for, inter alia, felony murder, a photograph of the victim's body just prior to the beginning of the autopsy did not violate the rule pertaining to post-autopsy incision photographs as the incision marks shown related to an organ harvest after attempts to keep the victim alive failed; photographs that displayed the body's exposed rib cage and the calcification of ribs broken weeks before the victim's death were also properly admitted as those injuries formed the basis of charges against the defendant of cruelty to a child and aggravated assault, separate from the acts that immediately caused the victim's death. Berryhill v. State, 285 Ga. 198, 674 S.E.2d 920 (2009) (decided under former O.C.G.A. § 24-4-48).
Photographs properly admitted.
- In a boundary line dispute, the fact that the surveyor who prepared an exhibit depicting the area at issue did not testify, and that the exhibit did not contain a surveyor's stamp or signature, was not certified or authenticated, was not incorporated into a deed, and was labeled "not to scale," did not preclude the exhibit's admission. It was an aerial photo that a defendant used to explain the defendant's testimony about the defendant's understanding of the location of the boundary line and, thus, was properly admitted. Griggs v. Fletcher, 294 Ga. App. 60, 668 S.E.2d 521 (2008) (decided under former O.C.G.A. § 24-4-48).
Videotapes
Videotape without authentication insufficient.
- Introduction into evidence of videotapes, depicting a male and female engaged in sexual activity, without authentication by the operator of the machine which produced the videotapes, or by one who personally witnessed the events recorded, was error and required reversal of convictions for aggravated child molestation and sexual exploitation of a child. Phagan v. State, 268 Ga. 272, 486 S.E.2d 876 (1997), cert. denied, 522 U.S. 1128, 118 S. Ct. 1079, 140 L. Ed. 2d 136 (1998) (decided under former O.C.G.A. § 24-4-48).
First and third portions of a videotape were not properly authenticated under former O.C.G.A. § 24-4-48, as the subject child molestation victims were not sleeping in these segments of the videotape, and the victims, both of whom testified at trial, were available to authenticate these portions of the videotape; neither child was asked during testimony to confirm that the videotape accurately portrayed the events the children had witnessed. Smith v. State, 285 Ga. App. 658, 647 S.E.2d 346 (2007) (decided under former O.C.G.A. § 24-4-48).
Evidence sufficient to authenticate videotape.
- To establish that tape was taken from a surveillance camera at the scene of the crime, testimony of the store supervisor, the agent who found the tape, the forensic photographer who repaired the tape, and the investigator who created the state's exhibit was sufficient authentication. Tolver v. State, 269 Ga. 530, 500 S.E.2d 563 (1998) (decided under former O.C.G.A. § 24-4-48).
Surveillance tape of a convenience store robbery was admissible into evidence because, even though the tape showed the wrong date because a store employee did not know how to properly set the videorecorder, the tape was properly authenticated by the store clerk and customers that were in the store during the robbery. Wallace v. State, 267 Ga. App. 801, 600 S.E.2d 808 (2004) (decided under former O.C.G.A. § 24-4-48).
Since the victim was semiconscious at the time of acts of alleged child molestation due to drug and alcohol use, the victim was an unavailable witness under former O.C.G.A. § 24-4-48 for purposes of authenticating a videotape found at the scene; however, the trial court did not err in admitting the videotape because, in a pretrial statement to police, the defendant acknowledged that the victim had performed oral sex on the defendant on the evening in question and did not dispute the accuracy of the tape's depiction of it, the victim identified herself on the tape, another victim was identified on the videotape by the victim's mother, and another attendee at the party identified herself on the videotape. Wilson v. State, 279 Ga. App. 459, 631 S.E.2d 391 (2006), cert. denied, No. S06C1689, 2006 Ga. LEXIS 1036 (Ga. 2006) (decided under former O.C.G.A. § 24-4-48).
Trial court was authorized to find that a segment of a videotape reliably showed the facts for which the videotape was offered and was admissible under former O.C.G.A. § 24-4-48(b); that a child molestation victim appeared on the tape and that the defendant made the tape was shown by the testimony of the investigating officer, who identified the victim and who recognized the defendant's voice on the segment of the tape showing the victim to be asleep. Smith v. State, 285 Ga. App. 658, 647 S.E.2d 346 (2007) (decided under former O.C.G.A. § 24-4-48).
Fast food restaurant video surveillance tape was properly admitted under former O.C.G.A. § 24-4-48(d), although the tape lacked date and time stamps, because other evidence authenticated the tape, including identification of the tape by a police officer who saw the tape, date and time stamps on still photographs from the tape, and the tape's corroboration of an employee's description of events. Dixon v. State, 300 Ga. App. 183, 684 S.E.2d 679 (2009) (decided under former O.C.G.A. § 24-4-48).
Video recording was properly admitted as the complaining witness testified that the witness personally transferred the video from the victim's home security system to the disc the witness presented to the court and that the video accurately depicted the incident on the date in question. Birdsong v. Barnett, 334 Ga. App. 120, 778 S.E.2d 372 (2015).
Date and time stamp on videotape.
- Defendant argued only that a proper foundation was not laid under former O.C.G.A. § 24-4-48(c) because no competent witness testified as to the date and time of the tape; however, since the videotape was not admitted under that portion of the former statute which required a date and time on such evidence, that enumeration of error presented nothing for review. Rogers v. State, 294 Ga. App. 195, 670 S.E.2d 106 (2008) (decided under former O.C.G.A. § 24-4-48).
Defendant's conviction for malice murder and other crimes was affirmed because even if evidence of social media videos purportedly of gang activity were not properly authenticated, any error was harmless based on several eyewitnesses who saw the defendant at the scene of the murder, one saw the defendant shoot the victim, and several witnesses were able to identify the defendant as the shooter from mall surveillance videos. Moore v. State, 305 Ga. 251, 824 S.E.2d 377 (2019).
Under plain error review, the admission of mall surveillance video recordings was not in error because the state presented testimony of eyewitnesses to events to authenticate two mall surveillance video recordings. Moore v. State, 305 Ga. 251, 824 S.E.2d 377 (2019).
Admitted to authenticate videotape.
- Trial court did not abuse the court's discretion when the court found that the state exercised due diligence in attempting to locate a robbery victim who had moved or by allowing a police officer to testify about out-of-court statements the victim made after a robbery to authenticate a videotape showing the robbery. Fernandez v. State, 263 Ga. App. 750, 589 S.E.2d 309 (2003) (decided under former O.C.G.A. § 24-4-48).
Defendant unavailable as authenticating witness due to right against self-incrimination.
- Child pornography defendant was deemed unavailable as an authenticating witness of seized photographic and videotape evidence against the defendant because defendant could not be compelled to testify due to the constitutional right against self-incrimination; but even though defendant was unavailable, the evidence was admissible through the testimony of the seizing officers. Craft v. State, 252 Ga. App. 834, 558 S.E.2d 18 (2001), cert. denied, 537 U.S. 1025, 123 S. Ct. 537, 154 L. Ed. 2d 437 (2002) (decided under former O.C.G.A. § 24-4-48).
Videotaped statement of testifying witness properly admitted.
- Defendant's right of confrontation was not violated by the admission of a videotaped statement of a witness, who did not remain silent at the trial, and who completely denied making any statement to the police regarding the murder. Wilson v. State, 277 Ga. 114, 587 S.E.2d 9 (2003) (decided under former O.C.G.A. § 24-4-48).
Surveillance videotape was properly admitted, and the trial court's reliability finding was upheld on appeal, based on the surrounding testimony, despite the fact that the state was unable to present testimony from a witness who actually observed the events transpire contemporaneously with the recording of the tape; moreover, the tape was not rendered inadmissible merely because the tape did not contain the date and time on which it was recorded, as such went to the weight of the evidence, and not the admissibility. Holloway v. State, 287 Ga. App. 655, 653 S.E.2d 95 (2007) (decided under former O.C.G.A. § 24-4-48).
Hotel surveillance tape was properly admitted under former O.C.G.A. § 24-4-48. Testimony that security personnel in the dispatch office were not trained to operate machinery in the dispatch room and did nothing more than replace spent tapes with fresh ones established that the devices producing the images were not operated by a person or under the personal control or in the presence of an individual operator; the fact that the date-time stamp was 104 minutes "off" went to the weight of the evidence, not to the evidence's admissibility; and the purported poor quality of the recording did not preclude the tape's admissibility. Dawson v. State, 283 Ga. 315, 658 S.E.2d 755 (2008), cert. denied, 129 S. Ct. 169, 172 L. Ed. 2d 122 (2008) (decided under former O.C.G.A. § 24-4-48).
Trial court did not abuse the court's discretion in admitting a videotape of the footage from surveillance cameras depicting the defendant's theft of the victim's property because the victim testified that the victim recognized oneself on the tape, and police officers testified that the officers viewed the tape at the U.S. Attorney's Office shortly after the theft. Sheppard v. State, 300 Ga. App. 631, 686 S.E.2d 295 (2009) (decided under former O.C.G.A. § 24-4-48).
Trial court did not abuse the court's discretion in admitting a videotape after a detective testified that the detective retrieved the video using a system for which the detective certified that the system appeared to be working properly except that the date-time stamp was inaccurate by a time period the detective was able to determine. Brannon v. State, 298 Ga. 601, 783 S.E.2d 642 (2016).
Trial court did not abuse the court's discretion by admitting the video because the dispatcher testified as to the circumstances and was personally at the sheriff's department when the video was captured and the state's failure to produce the original recording and the dispatcher's failure to testify impacted the weight and not the admissibility of the video. Yancey v. State, 342 Ga. App. 294, 802 S.E.2d 702 (2017).
Voicemail message properly authenticated.
- With regard to a defendant's murder conviction, the trial court did not err by admitting the tape of the voicemail message the defendant left on the victim's sibling's voicemail service shortly before the shooting based on the defendant's contention that the voicemail itself, as opposed to the tape of the voicemail, was not properly authenticated because competent evidence sufficient to establish the reliability of the voicemail message for purposes of authentication was admitted at trial via the testimony of the sibling as to retrieval of the message and the state presenting evidence of the phone records. Henley v. State, 285 Ga. 500, 678 S.E.2d 884, cert. denied, 558 U.S. 1076, 130 S. Ct. 800, 175 L. Ed. 2d 559 (2009) (decided under former O.C.G.A. § 24-4-48).
RESEARCH REFERENCES9A Am. Jur. Pleading and Practice Forms, Evidence, § 11.
Foundation for Contemporaneous Videotape Evidence, 16 POF3d 493.
Preparing and Using Photographs in Civil Cases, 3 Am. Jur. Trials 1.
Preparing and Using Photographs in Criminal Cases, 3 Am. Jur. Trials 335.
Uses, Techniques, and Reliability of Polygraph Testing, 42 Am. Jur. Trials 313.
Audio Recordings: Evidence, Experts and Technology, 48 Am. Jur. Trials 1.
Video Technology, 58 Am. Jur. Trials 481.
The Daubert Challenge to the Admissibility of Scientific Evidence, 60 Am. Jur. Trials 1.
ALR.- Admissibility in evidence of aerial photographs, 85 A.L.R.5th 671.
Construction and application of silent witness theory, 116 A.L.R.5th 373.
Admissibility in state criminal case of results of polygraph (lie detector) test-Post Daubert cases, 10 A.L.R.6th 463.