So some bright star decided that after umpteen years of predictability, the guiding lights of hearsay and probative value should be dimmed and we ended up with a new evidence code in Georgia that tracks the Federal Rules of Evidence in many regards. One of the critical issues for good Atlanta car accident lawyers like me is whether the police report of the car accident is now admissible evidence.
Remember that for many years, it did not come into evidence on a hearsay basis, among others. Along comes the new Georgia evidence code:
OCGA § 24-8-803(6):
Allows the use of records, 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.”
The key difference that many are focused on is the section allowing opinion evidence. The argument runs that the investigating police officer puts opinions on who causes the crash into the records; therefore the opinions in the report (which satisfies all of the other requirements) should be admissible in evidence.
I got into a long discussion with Al Bridges, the head of Geico’s in house staff counsel office here in Atlanta about the issue. I have a great deal of respect for Al and he related that at a recent seminar on the subject (Professor Milich from Georgia State University) Milich contends that the accident report will not come into evidence at trial under the new code because it is prohibited under OCGA 40-9-41. See Mintah v. Arms
OCGA 40-9-41 says:
“Neither any accident report filed with the Department of Transportation, the action taken by the Department of Driver Services pursuant to this chapter, the findings, if any, of the department upon which such action is based, nor the security filed as provided in this chapter shall be referred to in any way, nor shall they be any evidence of the negligence or due care of either party, at the trial of any action at law to recover damages.”
Now here is where it gets interesting. In serious crashes, officers will often make notes and draw external diagrams. Those diagrams that are not part of the standard report are probably admissible. Take a look at Pryor v. Phillips That case makes it seem pretty clear to me.
Here is one of Milich’s pieces on the evidence changes if you want to explore it more thoroughly