With the adoption of the Federal Rules of Evidence in Georgia, the ability of the criminal defendants to use medical evidence has been greatly expanded. When there is favorable medical evidence that criminal defense lawyers are aware of, we would always like for the actual witness to be present to testify at trial. However, it often is simply not possible with the way that criminal calendars are run in Georgia criminal cases to have medical professionals testify live. A few of the reasons why live medical testimony is difficult to obtain in Georgia criminal cases are:
- Criminal trial calendars in Georgia are frequently “on-call” calendars. During on-call calendars, a set trial date is not provided by the Court. You will be called for trial with a certain period of notice – usually 2 – 8 hours.
- Medical witnesses really, really value their time, and they usually want to be paid as experts for their opinions.
- Medical witnesses are generally very reluctant to appear and testify on behalf of anyone other than the State. Criminal defendants, in particular, are usually not the people that they want to help.
As a result, criminal defendants were frequently unable to introduce medical evidence. There is a solution to this problem now.
Ga. Code Ann. § 24-9-902 states, in relevant part:
(11) 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 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; or
O.C.G.A. § 24-8-803 states:
(6) 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;
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