Rules of Evidence

The Georgia Rules of Evidence begin with the following statement of legislative intent:

The object of all legal investigation is the discovery of truth.  Rules of evidence shall be construed to secure fairness in administration, eliminate unjustifiable expense and delay, and promote the growth and development of the law of evidence to the end that the truth may be ascertained and proceedings justly determined. O.C.G.A. § 24-1-1.

Although common law is preserved, O.C.G.A. § 24-1-2(e), the Rules of Evidence apply in all jury trials and most non-jury hearings. O.C.G.A. § 24-1-2(a) and (b).

Errors relating to evidentiary matters are not preserved for appeal unless: (1) in the case of evidence admitted, a timely objection is made stating the specific objection to admission of the evidence, or (2) in the case of evidence excluded, a profer was made so the substance of the excluded evidence is made known to the Court. O.C.G.A. § 24-1-103(a). Once a Court makes a definative ruling on the record admitting or excluding evidence, a party need not renew an objection or offer of proof to preserve the claim on appeal.

Frequently, questions concerning evidence are brought before the Court by motion in limine prior to a hearing. Rule 24-1-104 authorizes the Court to make preliminary findings regarding the admissibility of evidence. See also FRE Rule 104. The Court may also restrict the use of evidence when it is admissible for one purpose, but not for another. Rule 24-1-105.


The burden of proof generally lies upon the party who is asserting or affirming a fact and to the existence of whose case or defense the proof of such fact is essential. If a negation or negative affirmation is essential to a party’s case or defense, the proof of such negation or negative affirmation shall lie on the party so affirming it. Rule 24-14-1. The amount of proof necessary is decided in each case. Rule 24-14-2. In most civil proceedings (except the establishment of a guardianship or conservatorships), a preponderance of evidence is considered sufficient. Rule 24-14-3. Triers of fact may consider all the facts and circumstances of the case, the witnesses’ manner of testifying, their intelligence, their means and opportunity for knowing the facts to which they testified, the nature of the facts to which they testified, the probability or improbability of their testimony, their interest or want of interest, and their personal credibility so far as the same may legitimately appear from the trial, and may also consider the number of the witnesses, though the preponderance is not necessarily with the greater number. Rule 24-14-4. In reaching a decision, a trier of fact, from facts proved, and sometimes from the absence of counter evidence, may infer the existence of other facts reasonably and logically consequent on those proved. Rule 24-14-9.


Except as otherwise provided in the evidence code, every person is competent to be a witness. Rule 24-6-601. Testifying witnesses must have personal knowledge regarding the matters they testify to. Rule 24-6-602. As discussed below, repetition of something said by someone else is hearsay and, absent an exception, is not admissible. Before testifying, witnesses must take an oath that heor she will testify truthfully. Rule 24-6-603. If an interpreter is required, the interpreter must take an oath to make a truthful translation. Rule 24-6-604. The judge and jury members may not testify. The credibility of a witness may be attacked by any party, including the party calling the witness. Rule 24-6-607.

Opinion or reputation evidence regarding a witness is limited as follows: (1) The evidence may refer only to character for truthfulness or untruthfulness;  and (2) Evidence of truthful character shall be admissible only after the character of the witness for truthfulness has been attacked by opinion or reputation evidence or otherwise. Rule 24-6-608. Generally, evidence that a witness committed a crime cannot be used to attack the witnesses’ credibility unless it involved an act of dishonesty or making a false statement, and cannot be used if the crime occurred more than 10 years ago. Rule 24-6-609. Evidence regarding a witness’ religious beliefs cannot be used to support or attack his or her credibility. Rule 24-6-610.

The testimony of a single witness is generally sufficient to establish a fact. Rule 24-14-8. The general rule is that a witness testifying to a fact should be believed over witnesses who testify that they did not see or know about a fact existing or an occurence happening. Rule 24-14-7.

Generally, in civil proceedings, parties need not prove identity. Rule 24-14-40.

Subpoenas, including witness subpoenas and subpoenas for the production of evidence, shall state the name of the court, the name of the clerk, and the title of the proceeding and shall command each person to whom it is directed to attend and give testimony or produce evidence at a time and place specified by the subpoena. Rule 24-13-21(b). Subpoenas may be served by sheriff or any person over 18, but thay may also be served by registered or certified mail or statutory overnight delivery, and the return receipt shall constitute prima-facie proof of service. Rule 24-13-24. Subpoenaed witnesses may not be arrested on any civil process while attending any court to which he or she is subpoenaed or otherwise required to attend as a witness or while going to or returning from such court. Rule 24-13-1.

Examining and Cross Examining Witnesses:

The court shall exercise reasonable control over the mode and order of interrogating witnesses and presenting evidence so as to: (1) Make the interrogation and presentation effective for the ascertainment of the truth; (2) Avoid needless consumption of time;  and (3) Protect witnesses from harassment or undue embarrassment. As a general rule, open-ended questions (e.g., who, what, when, where and why questions) must be used when a party examines his or her own witnesses. A leading question is one that has facts built into it and invites the witness to agree or disagree with the attorney asking the question. Leading questions shall not be used on the direct examination of a witness except as may be necessary to develop the witness’s testimony. Ordinarily leading questions shall be permitted on cross-examination. When a party calls a hostile witness, an adverse party, or a witness identified with an adverse party, interrogation may be by leading questions.

A witness may be cross-examined on any matter relevant to any issue in the proceeding.  The right of a thorough and sifting cross-examination shall belong to every party as to the witnesses called against the party.  If several parties to the same proceeding have distinct interests, each party may exercise the right to cross-examination. Rule 24-6-611.

The Court may call and/or examine witnesses, including expert witnesses, but all parties may cross examine such witnesses. Rule 24-6-614.

At times, parties may be concerned that witnesses will attempt to coordinate their testimony. To prevent that from happening, a party may request that witnesses be sequestered until it is time for his or her testimony. Rule 24-6-615.

Witnesses may be impeached by disproving the facts stated in their testimony. Rule 24-6-621. A witness’s feelings toward, or relationship with, the parties may be proved for the jury’s consideration. Rule 24-6-622. The credibility of each witness is determined by the trier of fact. If the trier of fact is a jury, the Court must give the jury proper instructions regarding the credibility of witnesses. Rule 24-6-620.

Opinion Testimony and Expert Witnesses:

If a witness is not testifying as an expert, the witness’s testimony in the form of opinions or inferences shall be limited to those opinions or inferences which are: (1) Rationally based on the perception of the witness; (2) Helpful to a clear understanding of the witness’s testimony or the determination of a fact in issue;  and (3) Not based on scientific, technical, or other specialized knowledge within the scope of Code Section 24-7-702. Rule 24-7-701. The exception to this rule relates to market value. A witness need not be an expert or dealer in an article or property to testify as to its value if he or she has had an opportunity to form a reasoned opinion. Rule 24-7-701(b).

A witness qualified as an expert may give opinion evidence based on facts proved by other witnesses. Rule 24-7-702. If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education may testify thereto in the form of an opinion or otherwise, if: (1) The testimony is based upon sufficient facts or data; (2) The testimony is the product of reliable principles and methods;  and (3) The witness has applied the principles and methods reliably to the facts of the case which have been or will be admitted into evidence before the trier of fact. Rule 24-7-702(b). Additional requirements are imposed on medical experts and those requirements apply to the pre-suit affidavit required by O.C.G.A. § 9-11-9.1. The Daubert standard applies to expert witnesses in Georgia. Upon motion of a party, the court may hold a pretrial hearing to determine whether the witness qualifies as an expert and whether the expert’s testimony satisfies the requirements of subsections (a) and (b) of Rule 24-7-702.

Facts or data in the particular proceeding upon which an expert bases an opinion or inference may be those perceived by or made known to the expert at or before the hearing; however, if those facts or data are not admissible, they shall not be disclosed to the jury. Rule 24-7-703.

Other than opinions relating to mental state in a criminal proceeding, experts may offer opinions or inferences even if they embrace the ultimate issue to be decided by the trier of fact. Rule 24-7-704. For example, a qualified medical expert could offer testimony that an act (or non-action) was negligence.

Expert may testify in terms of opinion or inference and give reasons therefor without first testifying to the underlying facts or data, unless the court requires otherwise, but the expert may be required to disclose the underlying facts or data on cross-examination. Rule 24-7-705.

In some states, except testimony is not necessary when the alleged negligence is so obviously lacking in reasonable care and the results are so bad that the lack of reasonable care would be apparent to and within the common knowledge and experience of humankind generally. This is called the Common Knowledge Exception, or the Pronounced Results Exception. However, don’t look for this exception to be applied in Georgia. In Zarate-Martinez v. Echemendia, 332 Ga. App. 381 (2015), the Court of Appeals found that the expert affidavit required in OCGA § 9-11-9.1(a) is a pleading requirement “which operates separate and apart from the evidentiary burden on summary judgment and at trial.”

Hearing Impaired Individuals:

It is the policy of the State of Georgia to secure the rights of hearing impaired persons who, because of impaired hearing, cannot readily understand or communicate in spoken language and who consequently cannot equally participate in or benefit from proceedings, programs, and activities of the courts, legislative bodies, administrative agencies, licensing commissions, departments, and boards of this state and its political subdivisions unless qualified interpreters are available to assist such persons. Rule 24-6-650. To trigger the requirement that a qualified interpreter be provided, a hearing impaired person shall notify the agency not less than ten days, excluding weekends and holidays, prior to the date of the proceeding of the need for a qualified interpreter; except, if the hearing impaired person received notice of the proceding less than ten days (excluding weekends and holidays), then the request must be made as soon as practicable after receipt of notice. Rule 24-6-652(b).

Prior Statements:

If a witness made a prior consistent or inconsistent statement, those statements may be introduced under certain circumstances. When questioning witnesses concerning prior statements, the statement need not be shown to the witness, but upon request it must be shown to opposing counsel. Extrinsic evidence of a prior inconsistent statement is not admissible unless the witness is first given an opportunity to explain or deny the prior inconsistent statement and opposing counsel is afforded an opportunity to question the witness regarding it. Prior consistent statements are admissible to rehabilitate a witness if they logically rebut an attack on the witness’s credibility. Rule 24-6-613.

Written and Recorded Statements:

Rule 24-1-106 provides that when a writing or recorded statement is introduced, an adverse party may require the introduction at that time of any other part or any other writing or recorded statement which, in fairness, should be considered contemporaneously with the writing or recorded statement.

If a witness uses a writing to refresh his or her memory while testifying, an adverse party shall be entitled to have the writing produced at the hearing or trial, to inspect it, to cross-examine the witness on such writing, and to introduce in evidence those portions of such writing which relate to the testimony of the witness. Rule 24-6-612(a). Written statements examined prior to testimony are also subject to examination by an adverse party unless they are protected by attorney-client privilege or are unrelated to the testimony, but the Court must examine the writing if requested and any portion of the writing not delivered to the adverse party must be preserved and made available to the appellate court in the event of an appeal. Rule 24-6-612(b).

Judicial Notice:

There are times when facts need not be formally proven. In those cases, the Court may take judicial notice as permitted in Rule 24-2-201; FRE 201. Judicial notice is typically reserved for obvious common sense facts, such as which day of the week corresponds to a particular calendar date. See Judicial notice, Wikipedia. Notes of the Advisory Committee on the FRE make it clear the rule is limited to adjudicative facts; is no rule dealing with judicial notice of “legislative” facts. Georgia, however, allows Courts to take judicial notice of laws, the existence and extent of states and territories, as well as their form of government and symbols. Rule 24-2-220. When properly certified and no contrary evidence is presented, Georgia Courts may also take judicial notice of municipal and county records. Rule 2-2-221.

Parol Evidence/Contracts:

Parol evidence is evidence not in a contract that one party seeks to use to vary the terms of the agreement. Parol evidence is generally inadmissible. Rule 24-3-1. However, if terms are missing from the written agreement, parol evidence is admissible to prove other portions thereof not inconsistent with the writing;  collateral undertakings between parties of the same part among themselves would not properly be looked for in the writing. Rule 24-3-2. Parol evidence may be used to explain latent and patent ambiguities, and contemporaneous writings may be used to explain each other. 24-3-3. Surrounding circumstances, and established usage are always admissible to aid in the construction of a contract. 24-3-4; 24-3-5. Parol evidence is admissible to prove discharge of a contract, novations, and mistakes in deeds and contracts. Rules 23-3-6; 23-3-7. It is likewise admissible to show that a contract was void or became void (e.g., absence of legal capacity). Rule 24-3-8.

Relevant Evidence:

Only relevant evidence is admissible. Relevant evidence is evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence. Rule 24-4-401. See also FRE Rule 401. Unless there is a constitutional reason for holding otherwise, such as an illegally obtained confession, or unless there is another rule limiting admissibility such as husband-wife privilege, all relevant evidence is admissible and evidence that is not relevant is not admissible. Rule 24-4-402.

One exception to the admissibility of relevant evidence is found in Rule 403. If the probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence, then relevant evidence may be excluded. Further, evidence of a person’s character is not admissible for the purpose of proving action in conformity with the alleged character. Rule 404. The Georgia Supreme Court relied on Rule 403 and Rule 404 in overturning the conviction of Justin Harris on June 22, 2022. There, during pre-trial proceedings, defense counsel objected tot he admission of evidence of Defendant’s sexual activities under Rules 401, 403 and 404. The trial court overruled the objection. On appeal, the Supreme Court found the evidence was not relevant to the death of his infant/toddler in a hot car and was not relevant to show intent. In division 5 of the Court’s opinion, it found the “erroneously admitted evidence added sharper, more damning, and more plainly criminal details to the State’s portrayal of Appellant as a man of despicable character who deserved  punishment.” (Emphasis added). Although the evidence might have been relevant to other charges, such as sexual contact with minors, since those charges were not severed from the murder charge, the Court could not “say that it is “highly probable” that the trial court’s erroneous admission of evidence of Appellant’s sexual activities and the court’s denial of his motion to sever did not contribute to the guilty verdicts as to the crimes against Cooper.”

Witnesses have a right to have their examination limited to relevant information and to be protected from improper questions and from harsh or insulting demeanor. Rule 24-6-623.


Rule 24-4-406 provides: “Evidence of the habit of a person or of the routine practice of an organization, whether corroborated or not and regardless of the presence of eyewitnesses, is relevant to prove that the conduct of the person or organization on a particular occasion was in conformity with such habit or routine practice.”

Remedial Measures:

Sometimes, after a danger becomes known, people take action to prevent a danger or harm from recurring. These steps, known as remedial measures, are not admissible to prove negligence or culpable conduct. Rule 24-4-407. However, evidence of remedial measures when offered for impeachment or for another purpose, including, but not limited to, proving ownership, control, or feasibility of precautionary measures, if controverted.

Offering to Furnish or Pay for Medical Care:

Evidence of furnishing, offering, or promising to pay medical, hospital, or similar expenses occasioned by an injury shall not be admissible to prove liability for the injury. Rule 24-4-409.

Withdrawn Guilty Pleas, Plea Discussions and Nolo Contendere:

Generally, any discussions regarding guilty pleas that are withdrawn, plea negotiations or discussions and pleas of nolo contendere and not admissible. Rule 24-4-410.

Insured Status:

Evidence that a person was or was not insured is not admissible except when such evidence is offered for a relevant purpose, including, but not limited to, proof of agency, ownership, or control, and the court finds that the danger of unfair prejudice is substantially outweighed by the probative value of the evidence. Rule 24-4-411.

Statements of Regret or Apology by Health Care Provider:

In any claim or civil proceeding brought by or on behalf of a patient allegedly experiencing an unanticipated outcome of medical care, any and all statements, affirmations, gestures, activities, or conduct expressing regret, apology, sympathy, commiseration, condolence, compassion, mistake, error, or a general sense of benevolence which is made by a health care provider or an employee or agent of a health care provider to the patient, a relative of the patient, or a representative of the patient and which relates to the unanticipated outcome shall be inadmissible as evidence and shall not constitute an admission of liability or an admission against interest. Rule 24-4-416.


In any dispute concerning payment by means of a check, a duplicate of the check produced in accordance with Code Section 24-10-1003 , together with the original bank statement that reflects payment of the check by the bank on which it was drawn or a duplicate thereof produced in the same manner, shall create a presumption that the check has been paid. Rule 24-14-25(b).

Space of time/Life Expectancy:

Stern’s United States calendar and Stafford’s office calendar shall be admissible in proof of dates for the space of time covered by them respectively without further proof. Rule 24-14-43. Where the life expectancy of a person is an issue, the American Experience Mortality Tables shall be admissible as evidence of the life expectancy of such person. Rule 24-14-44.

Criminal History Records:

Admissibility of criminal history records is limited in civil proceedings. In a civil proceeding against an employer, its employees, or its agents based on the conduct of an employee or former employee, criminal history record information shall not be admissible if: (1) The nature of such criminal history record information is not relevant to the facts underlying such proceeding or the veracity of the witness; (2) Prior to the act giving rise to such proceedings, criminal history record information was restricted or sealed as provided in Code Section 35-3-37 , or a pardon for such conduct was granted;  or (3) Such criminal history information is for an arrest or charge that did not result in a conviction. Rule 24-4-419.

Privileged Communication:

Some forms of communication cannot be used as evidence and are excluded on ground of public policy. These include, but are not limited to (1) Communications between husband and wife; (2) Communications between attorney and client; (3) Communications among grand jurors; (4) Secrets of state; (5) Communications between psychiatrist and patient; (6) Communications between licensed psychologist and patient as provided in Code Section 43-39-16 ; (7) Communications between a licensed clinical social worker, clinical nurse specialist in psychiatric/mental health, licensed marriage and family therapist, or licensed professional counselor and patient; (8) Communications between or among any psychiatrist, psychologist, licensed clinical social worker, clinical nurse specialist in psychiatric/mental health, licensed marriage and family therapist, and licensed professional counselor who are rendering psychotherapy or have rendered psychotherapy to a patient, regarding that patient’s communications which are otherwise privileged by paragraph (5), (6), or (7) of this subsection;  and (9) Communications between accountant and client as provided by Code Section 43-3-29. Rule 24-5-501.

In addition, communications made by any person professing religious faith, seeking spiritual comfort, or seeking counseling to any Protestant minister of the Gospel, any priest of the Roman Catholic faith, any priest of the Greek Orthodox Catholic faith, any Jewish rabbi, or any Christian or Jewish minister or similar functionary, by whatever name called, shall be deemed privileged.  No such minister, priest, rabbi, or similar functionary shall disclose any communications made to him or her by any such person professing religious faith, seeking spiritual guidance, or seeking counseling, nor shall such minister, priest, rabbi, or similar functionary be competent or compellable to testify with reference to any such communication in any court. Rule 24-5-502.

Husbands and wives may testify against each other, but cannot be compelled to do so except in limited circumstances. Rule 24-5-503.


Hearsay” means a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted. Rule 24-8-801(c). In it’s most basic form, hearsay is repeating what someone else said. The hearsay rules apply to verbal, nonverbal and written communications if the intent of the communication is to make an assertion. Hearsay is not admissible except as provided by [Title 24, Article 8];  provided, however, that if a party does not properly object to hearsay, the objection shall be deemed waived, and the hearsay evidence shall be legal evidence and admissible. Rule 24-8-802. If the declarant appears in court and is subject to cross-examination, then prior statements by the witness are not hearsay. Rule 24-8-801(d)(1).

If hearsay is admitted (probably because no objection was made), other out-of-court statements of the declarant shall be admissible for the limited use of impeaching or rehabilitating the credibility of the declarant, and not as substantive evidence, if the other statements qualify as prior inconsistent statements or prior consistent statements under Code Section 24-6-613. Rule 24-8-801(d)(1)(B). Further, when  a hearsay statement has been admitted in evidence, the credibility of the declarant may be attacked and, if attacked, may be supported by any evidence which would be admissible for those purposes if the declarant had testified as a witness. Evidence of a statement or conduct by the declarant at any time, inconsistent with the declarant’s hearsay statement, shall not be subject to any requirement that the declarant may have been afforded an opportunity to deny or explain.  If the party against whom a hearsay statement has been admitted calls the declarant as a witness, the party shall be entitled to examine the declarant on the statement as if under cross-examination. Rule 24-8-806

Hearsay can exist within hearsay (double hearsay). If so, to be excluded from the hearsay rule each part of the combined statements must conform with an exception to the hearsay rule. Rule 24-8-805.

The hearsay rule is complicated and befuddles lawyers and non-lawyers alike. Judge Richard Posner, while not in favor of eliminating the hearsay rule, criticised it as relying “too heavily on cross-examination to separate truth from falsity, and cross-examination is not, as lawyers and trial judges like to think, the greatest engine ever invented for determining truth. I think judges leave too much of the development of facts to the lawyers…” R. Posner, On Hearsay, 84 Fordham L.R. 1465 (2016).

Exceptions to the Hearsay Rule:

There are many exceptions to the hearsay rule. Among them are:


Either party may avail himself or herself of allegations or admissions made in the pleadings of the other regardless of whether the pleadings are offered in evidence. Rule 24-8-821. A judgment shall be admissible between any parties to show the fact of the rendition thereof;  between parties and privies it is conclusive as to the matter directly in issue, until reversed or set aside. Rule 24-14-42.

Statements Having Inherent Guarantees of trustworthiness:

A statement not specifically covered by any law but having equivalent circumstantial guarantees of trustworthiness shall not be excluded by the hearsay rule, if the court determines that: (1) The statement is offered as evidence of a material fact; (2) The statement is more probative on the point for which it is offered than any other evidence which the proponent can procure through reasonable efforts;  and (3) The general purposes of the rules of evidence and the interests of justice will best be served by admission of the statement into evidence. However, a statement may not be admitted under this Code section unless the proponent of it makes known to the adverse party, sufficiently in advance of the trial or hearing to provide the adverse party with a fair opportunity to prepare to meet it, the proponent’s intention to offer the statement and the particulars of it, including the name and address of the declarant. Rule 24-8-807.

Opposing Party Admissions:

Admissions shall not be excluded by the hearsay rule. An admission is a statement offered against a party which is: (A) The party’s own statement, in either an individual or representative capacity; (B) A statement of which the party has manifested an adoption or belief in its truth; (C) A statement by a person authorized by the party to make a statement concerning the subject; (D) A statement by the party’s agent or employee, but not including any agent of the state in a criminal proceeding, concerning a matter within the scope of the agency or employment, made during the existence of the relationship;  or (E) A statement by a coconspirator of a party during the course and in furtherance of the conspiracy, including a statement made during the concealment phase of a conspiracy. A conspiracy need not be charged in order to make a statement admissible under this subparagraph. Rule 24-8-801(d)(2).

When an admission is given in evidence by one party, it shall be the right of the other party to have the whole admission and all the conversation connected therewith admitted into evidence. Rule 24-8-822.

Present sense impression:

A statement describing or explaining an event or condition made while the declarant was perceiving the event or condition or immediately thereafter. Rule 24-8-803(1)

Excited utterance:

A statement relating to a startling event or condition made while the declarant was under the stress of excitement caused by the event or condition. Rule 24-8-803(2)

Then existing mental, emotional, or physical condition:

A statement of the declarant’s then existing state of mind, emotion, sensation, or physical condition, such as intent, plan, motive, design, mental feeling, pain, and bodily health, but not including a statement of memory or belief to prove the fact remembered or believed unless such statements relate to the execution, revocation, identification, or terms of the declarant’s will and not including a statement of belief as to the intent of another person. Rule 24-8-803(3)

Statements for purposes of medical diagnosis or treatment:

Statements made for purposes of medical diagnosis or treatment and describing medical history, or past or present symptoms, pain, or sensations, or the inception or general character of the cause or external source thereof insofar as reasonably pertinent to diagnosis or treatment. Rule 24-8-803(4)

Recorded recollection:

A memorandum or record concerning a matter about which a witness once had knowledge but now has insufficient recollection to enable the witness to testify fully and accurately shown to have been made or adopted by the witness when the matter was fresh in the witness’s memory and to reflect that knowledge correctly.  If admitted, the memorandum or record may be read into evidence but shall not itself be received as an exhibit unless offered by an adverse party. Rule 24-8-803(5)

Records of regularly conducted activity:

Unless the source of information or the method or circumstances of preparation indicate lack of trustworthiness and subject to the provisions of Chapter 7 of this title, a memorandum, report, record, or data compilation, in any form, of acts, events, conditions, opinions, or diagnoses, if (A) made at or near the time of the described acts, events, conditions, opinions, or diagnoses;  (B) made by, or from information transmitted by, a person with personal knowledge and a business duty to report;  (C) kept in the course of a regularly conducted business activity;  and (D) it was the regular practice of that business activity to make the memorandum, report, record, or data compilation, all as shown by the testimony of the custodian or other qualified witness or by certification that complies with paragraph (11) or (12) of Code Section 24-9-902 or by any other statute permitting certification.  The term “business” as used in this paragraph includes any business, institution, association, profession, occupation, and calling of every kind, whether or not conducted for profit.  Public records and reports shall be admissible under paragraph (8) of this Code section and shall not be admissible under this paragraph. Rule 24-8-803(6)

Absence of entry in records kept in accordance with paragraph (6) of this Code section:

Evidence that a matter is not included in the memoranda, reports, records, or data compilations, in any form, kept in accordance with the provisions of paragraph (6) of this Code section, to prove the nonoccurrence or nonexistence of the matter, if the matter was of a kind of which a memorandum, report, record, or data compilation was regularly made and preserved, unless the sources of information or other circumstances indicate lack of trustworthiness. Rule 24-8-803(7)

Public records and reports:

Except as otherwise provided by law, public records, reports, statements, or data compilations, in any form, of public offices, setting forth: (A) The activities of the public office; (B) Matters observed pursuant to duty imposed by law as to which matters there was a duty to report, excluding, however, against the accused in criminal proceedings, matters observed by police officers and other law enforcement personnel in connection with an investigation;  or (C) In civil proceedings and against the state in criminal proceedings, factual findings resulting from an investigation made pursuant to authority granted by law, unless the sources of information or other circumstances indicate lack of trustworthiness. Rule 24-8-803(8)

Records of vital statistics:

Records or data compilations, in any form, of births, fetal deaths, deaths, or marriages, if the report thereof was made to a public office pursuant to requirements of law. Rule 24-8-803(9)

Absence of public record or entry:

To prove the absence of a record, report, statement, or data compilation, in any form, or the nonoccurrence or nonexistence of a matter of which a record, report, statement, or data compilation, in any form, was regularly made and preserved by a public office, evidence in the form of a certification in accordance with Code Section 24-9-902 , or testimony, that diligent search failed to disclose the record, report, statement, or data compilation, or entry. Rule 24-8-803(10)

Records of religious organizations:

Statements of birth, marriages, divorces, deaths, legitimacy, ancestry, relationship by blood or marriage, or other similar facts of personal or family history, contained in a regularly kept record of a religious organization. Rule 24-8-803(11)

Marriage, baptismal, and similar certificates:

Statements of fact contained in a certificate that the maker performed a marriage or other ceremony or administered a sacrament, made by a clergyman, public official, or other person authorized by the rules or practices of a religious organization or by law to perform the act certified and purporting to have been issued at the time of the act or within a reasonable time thereafter. Rule 24-8-803(12)

Family records:

Statements of fact concerning personal or family history contained in family Bibles, genealogies, charts, engravings on rings, inscriptions on family portraits, engravings on urns, crypts, or tombstones, or the like. Rule 24-8-803(13)

Records of documents affecting an interest in property:

The record of a document purporting to establish or affect an interest in property, as proof of the content of the original recorded document and its execution and delivery by each person by whom it purports to have been executed, if the record is a record of a public office and an applicable law authorizes the recording of documents of that kind in such office. Rule 24-8-803(14)

Statements in documents affecting an interest in property:

A statement contained in a document purporting to establish or affect an interest in property if the matter stated was relevant to the purpose of the document, unless dealings with the property since the document was made have been inconsistent with the truth of the statement or the purport of the document. Rule 24-8-803(15)

Statements in ancient documents:

Statements in a document in existence 20 years or more the authenticity of which is established. Rule 24-8-803(16)

Market reports and commercial publications:

Market quotations, tabulations, lists, directories, or other published compilations generally used and relied upon by the public or by persons in the witness’s particular occupation. Rule 24-8-803(17)

Learned treatises:

To the extent called to the attention of an expert witness upon cross-examination, statements contained in published treatises, periodicals, or pamphlets, whether published electronically or in print, on a subject of history, medicine, or other science or art, established as a reliable authority by the testimony or admission of the witness, by other expert testimony, or by judicial notice.  If admitted, the statements may be used for cross-examination of an expert witness and read into evidence but shall not be received as exhibits. Rule 24-8-803(18)

Reputation concerning personal or family history:

Reputation among members of a person’s family by blood, adoption, or marriage or among a person’s associates or in the community concerning a person’s birth, adoption, marriage, divorce, death, legitimacy, relationship by blood, adoption, or marriage, ancestry, or other similar fact of the person’s personal or family history. Rule 24-8-803(19)

Reputation concerning boundaries or general history:

Reputation in a community, arising before the controversy, as to boundaries of or customs affecting lands in the community and reputation as to events of general history important to the community or state or nation in which such lands are located. Rule 24-8-803(20)

Reputation as to character:

Reputation of a person’s character among associates or in the community. Rule 24-8-803(21)

Judgment of previous conviction:

Evidence of a final judgment, entered after a trial or upon a plea of guilty but not upon a plea of nolo contendere, adjudging a person guilty of a crime punishable by death or imprisonment in excess of one year to prove any fact essential to sustain the judgment, but not including, when offered by the state in a criminal prosecution for purposes other than impeachment, judgments against persons other than the accused.  The pendency of an appeal may be shown but shall not affect admissibility. Rule 24-8-803(22)

Judgment as to personal, family, or general history or boundaries:

Judgments as proof of matters of personal, family, or general history or boundaries essential to the judgment, if the same would be provable by evidence of reputation. Rule 24-8-803(23)

Statements Made by Unavailable Witnesses:

If a witness is unavailable within the meaning of Rule 24-8-804, the following is not excluded by the hearsay rule:

  1. Testimony given as a witness at another hearing of the same or a different proceeding, or in a deposition taken in compliance with law in the course of the same or another proceeding, if the party against whom the testimony is now offered, or, in a civil proceeding, a predecessor in interest, had an opportunity and similar motive to develop the testimony by direct, cross, or redirect examination.  If deposition testimony is admissible under either the rules stated in Code Section 9-11-32 or this Code section, it shall be admissible at trial in accordance with the rules under which it was offered;
  2. In a prosecution for homicide or in a civil proceeding, a statement made by a declarant while believing that his or her death was imminent, concerning the cause or circumstances of what the declarant believed to be impending death;
  3. A statement against interest.  A statement against interest is a statement:
    1. Which a reasonable person in the declarant’s position would have made only if the person believed it to be true because, when made, it was so contrary to the declarant’s proprietary or pecuniary interest or had so great a tendency to invalidate a claim by the declarant against another or to expose the declarant to civil or criminal liability;  and
    2. Supported by corroborating circumstances that clearly indicate the trustworthiness of the statement if it is offered in a criminal case as a statement that tends to expose the declarant to criminal liability;
  4. A statement concerning the declarant’s own birth, adoption, marriage, divorce, legitimacy, relationship by blood, adoption, or marriage, ancestry, or other similar fact of personal or family history, even though the declarant had no means of acquiring personal knowledge of the matter stated or a statement concerning the foregoing matters and death also of another person, if the declarant was related to the other by blood, adoption, or marriage or was so intimately associated with the other’s family as to be likely to have accurate information concerning the matter declared;  or
  5. A statement offered against a party that has engaged or acquiesced in wrongdoing that was intended to, and did, procure the unavailability of the declarant as a witness.

Medical Narratives:

Upon the trial of any civil proceeding involving injury or disease, any medical report in narrative form which has been signed and dated by an examining or treating licensed physician, dentist, orthodontist, podiatrist, physical or occupational therapist, doctor of chiropractic, psychologist, advanced practice registered nurse, social worker, professional counselor, or marriage and family therapist shall be admissible and received in evidence insofar as it purports to represent the history, examination, diagnosis, treatment, prognosis, or interpretation of tests or examinations, including the basis therefor, by the person signing the report, the same as if that person were present at trial and testifying as a witness;  provided, however, that such report and notice of intention to introduce such report shall first be provided to the adverse party at least 60 days prior to trial.  A statement of the qualifications of the person signing such report may be included as part of the basis for providing the information contained therein, and the opinion of the person signing the report with regard to the etiology of the injury or disease may be included as part of the diagnosis.  Any adverse party may object to the admissibility of any portion of the report, other than on the ground that it is hearsay, within 15 days of being provided with the report.  Further, any adverse party shall have the right to cross-examine the person signing the report and provide rebuttal testimony.  The party tendering the report may also introduce testimony of the person signing the report for the purpose of supplementing the report or otherwise. The medical narrative shall be presented to the jury as depositions are presented to the jury and shall not go out with the jury as documentary evidence. Rule 24-8-826.


Evidence must be authenticated before it is admitted and that is usually done by laying a foundation. Foundation establishes that the evidence being presented is what the proponent claims. Rule 24-9-901(a). Rule 24-9-901(b) provides the following non-exhaustive list of examples:

  1. Testimony of a witness with knowledge that a matter is what it is claimed to be;
  2. Nonexpert opinion as to the genuineness of handwriting, based upon familiarity not acquired for purposes of the litigation;
  3. Comparison by the trier of fact or by expert witnesses with specimens which have been authenticated. Such specimens shall be furnished to the opposite party no later than ten days prior to trial;
  4. Appearance, contents, substance, internal patterns, or other distinctive characteristics, taken in conjunction with circumstances;
  5. Identification of a voice, whether heard firsthand or through mechanical or electronic transmission or recording, by opinion based upon hearing the voice at any time under circumstances connecting it with the alleged speaker;
  6. Telephone conversations, by evidence that a call was made to the number assigned at the time by a telephone service provider to a particular person or business, if:
    1. In the case of a person, circumstances, including self-identification, show the person answering to be the one called;  or
    2. In the case of a business, the call was made to a place of business and the conversation related to business reasonably transacted over the telephone;
  7. Evidence that a document authorized by law to be recorded or filed and in fact recorded or filed in a public office or a purported public record, report, statement, or data compilation, in any form, is from the public office where items of this nature are kept;
  8. Evidence that a document or data compilation, in any form:
    1. Is in such condition as to create no suspicion concerning its authenticity;
    2. Was in a place where it, if authentic, would likely be;  and
    3. Has been in existence 20 years or more at the time it is offered;
  9. Evidence describing a process or system used to produce a result and showing that the process or system produces an accurate result;  or
  10. Any method of authentication or identification provided by law.


Signatures may be proven by calling the person who signed a document, by having someone familiar with a persons signature testify regarding genuiness, or by having the trier of fact compare signatures. See Rule 24-9-901(b). Although, in an ideal world, it is best to have the person who signed a document testify concerning the genuineness of his or her signature, the signing person’s testimony is not necessary. Rule 24-9-903.


Usually, the original of a writing, recording, or photograph, the original writing, recording, or photograph is required to prove its contents. Rule 24-10-1002. However, duplicates are admissible unless there is a legitimate question regarding authenticity of the duplicate, or a circumstance exists where it would be unfair to admit the duplicate in lieu of the original. Rule 24-10-1003. If the original was lost, destroyed, or cannot be secured through available judicial process, the original is not required. Rule 24-10-1004. Testimony from an opposing party regarding the contents of writings, recordings, or photographsis admissible without requiring production of an original. Rule 24-10-1007. Conditions precedent to admissibility are decided by the Court unless an issue is raised as to: (1) Whether the asserted writing, recording, or photograph ever existed; (2) Whether another writing, recording, or photograph produced at the trial is the original;  or (3) Whether other evidence of the contents correctly reflects the contents; in those cases the trier of fact makes the determination. Rule 24-10-1008.

Government Documents:

Government documents bearing a seal, or otherwise certified under seal as genuine to not requier extrinsic evidence of authenticity. Rule 24-9-902(1) and (2). Foreign government documents accompanied by a final certification, or which have a final certification from a secretary of embassy or legation, consul general, consul, vice consul, or consular agent of the United States may be accepted as genuine. Rule 24-9-902(3). Duplicates of recorded documents may be admitted with a certification. Rule 24-9-902(4) and Rule 24-9-920; Rule 24-10-1005. No certification is required for books, pamphlets, or other publications purporting to be issued by a public office. Rule 24-9-902(5). No extrinsic foundation is required for any signature, document or other matter declared by law to be presumptively or prima facie genuine or authentic. Rule 24-9-902(10).

The contents of lost, mutilated, stolen, or destroyed public documents may be established by the document custodian. Rule 24-11-2. Lost original pleadings may be established instanter by duplicate on motion. Rule 24-11-20.

Business Records:

Inscriptions, signs, tags, or labels purporting to have been affixed in the course of business and indicating ownership, control, or origin may be admitted without extrinsic proof of genuiness. Rule 9-9-902(7). The original or a duplicate of a domestic record of regularly conducted activity that would be admissible under paragraph (6) of Code Section 24-8-803 [the hearsay exception for business records] if accompanied by a written declaration of its custodian or other qualified person certifying that the record: (A) Was made at or near the time of the occurrence of the matters set forth by, or from information transmitted by, a person with knowledge of such matters; (B) Was kept in the course of the regularly conducted activity;  and (C) Was made by the regularly conducted activity as a regular practice. A party intending to offer a record into evidence under this paragraph shall provide written notice of such intention to all adverse parties and shall make the record and declaration available for inspection sufficiently in advance of their offer into evidence to provide an adverse party with a fair opportunity to challenge such record and declaration. Rule 24-9-902(11). The same applies to foreign records if certified under penalty of perjury. Rule 24-9-902(12).

Other Documents:

Printed materials purporting to be newspapers or periodicals may be admitted without extrinsic proof of genuiness. Rule 24-9-902(6). Notarized documents are admissible. Rule 24-9-902(8). Commercial paper, signatures thereon, and documents relating thereto to the extent provided by general commercial law. Rule 24-9-902(9). Patients and members of their family may authenticate medical bills. Rule 24-9-921(a). No expert testimony is required to show the charges were reasonable and necessary, but cross examination is permitted. Rule 24-9-921(b). Charts, summaries or calculations are admissible in place of voluminous writings, recordings, or photographs so long as those materials were made available for examination. Rule 24-10-1006.

Physicians and pharmacists are not required to release patient information except to the Department of Public Health, as otherwise required by law, or to a patient or patient representative with an appropriate authorization. Rule 24-12-1. Disclosed confidential and privileged medical information does not destroy or abridge the confidential or privileged character thereof, except for the purpose for which such disclosure is made. Rule 24-12-11.


Photographs are admissible when authenticated by the person who took the photograph, or upon the testimony of a witness who is familiar with the object or scene, and who testifies that the object or scene fairly and accurately depicts the object or scene at the relevant time. Subject to other valid objections, photographs, motion pictures, video recordings, and audio recordings are admissible even when a witness capable of authenticating them is unavailable if the court determines, based on competent evidence presented to the court, that such items tend to show reliably the fact or facts for which the items are offered. Rule 24-9-923(b). Similarly, automated or remotely taken photographs, motion pictures, video recordings, and audio recordings are admissible if the court determines, based on competent evidence presented to the court, that such items tend to show reliably the fact or facts for which the items are offered, provided that, prior to the admission of such evidence, the date and time of such photograph, motion picture, or video recording shall be contained on such evidence, and such date and time shall be shown to have been made contemporaneously with the events depicted in such photograph, motion picture, or video recording. Rule 24-9-923(c).


A legal presumption, called an estoppel, is one that cannot be contrdicted. Estoppels, which are not favored, include the following: (1) A record or judgment unreversed; (2) The proper conduct of courts and judicial officers acting within their legitimate spheres; (3) The proper conduct of other officers of the law after the lapse of time has rendered it dangerous to open the investigation of their acts in regard to mere formalities of the law; (4) Ancient deeds and other instruments more than 30 years old, when they come from proper custody and possession has been held in accordance with them; (5) Recitals in deeds, except payment of purchase money, as against a grantor, sui juris, acting in his or her own right, and his or her privies in estate, in blood, and in law; (6) A landlord’s title as against his or her tenant in possession; (7) Solemn admissions made in judicio;  or (8) Admissions upon which other parties have acted, either to their own injury or to the benefit of the persons making the admissions. Estoppels also include all similar cases where it would be more unjust and productive of evil to hear the truth than to forbear investigation. Rule 24-14-26.

Equitable estoppel may also exist. In order for an equitable estoppel to arise, there shall generally be some intended deception in the conduct or declarations of the party to be estopped, or such gross negligence as to amount to constructive fraud, by which another has been misled to his or her injury. Rule 24-14-29.

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