I am a
personal injury attorney in Atlanta, Georgia, and like lawyers throughout Georgia, I am witnessing a Georgia evidence
statute in its death throes. The law of “res gestae” is ancient
here in Georgia, but the new evidence code abolishes that law in favor
of a statute similar to the federal law.
Until the new code takes effect, the law of res gestae still applies in
Georgia car accident lawsuits in Georgia and in Georgia personal injury
cases, as well as in other types of cases. For that reason, I am going
to explain what the Georgia law is.
By Georgia statute, “[d]eclarations accompanying an act, or so nearly
connected therewith in time as to be free from all suspicion of device
or afterthought, shall be admissible in evidence as part of the res gestae.”
O.C.G.A. § 24-3-3. Res gestae is a Latin term meaning “things done” or “deeds.”
Under the present law, if a person makes a statement that is part of the
res gestae, then even if the person cannot be found to testify at trial,
other people can testify about what the person said. Normally witnesses
cannot repeat the statements of people who do not testify in court. Those
statements are called hearsay, and they are considered unreliable and
are inadmissible. The law of res gestae is based on the idea that statements
people make in the heat of the moment, before they have had time to sit
around and invent a story, are more likely to be true.
(i) Definition. To meet the res gestae exception, an exclamation must “be contemporaneous,
voluntary and made at a time which indicates the lack of deliberation
Gaines v. State, 232 Ga. 727, 730, 208 S.E.2d 798, 801 (Ga. 1974).
(ii) Timing. Courts have explained: “[t]o fall within the res gestae, a statement
must be contemporaneous with the main fact, but need not be precisely
concurrent in point of time; it is sufficient if such declarations spring
out of the transaction, if they elucidate it, if voluntary and if made
at such time as reasonably to exclude the idea of design.” Goldsmith
v. Peterson, 307 Ga. App. 26, 32, 703 S.E.2d 694, 699 (Ga. Ct. App. 2010),
quoting Davis v. Reid, 272 Ga. App. 312, 317, 612 S.E.2d 112 (2005) (citation
and punctuated omitted in Goldsmith).
(iii) Statements of Opinion. “As long as it is part of the res gestae, a statement of opinion
is admissible.” Goldsmith v. Peterson, 307 Ga. App. 26, 32, 703
S.E.2d 694, 699 (Ga. Ct. App. 2010) (citations omitted).
(iv) Standard of Review. “A trial court’s determination that evidence is admissible
as part of the res gestae will not be disturbed unless that finding is
clearly erroneous.” Copeland v. State, 235 Ga. App. 682, 684, 510
S.E.2d 124, 126 (Ga. Ct. App. 1998).
In the context of a Georgia personal injury lawsuit or a Georgia car accident
lawsuit, the law was often used to allow police officers to testify about
what bystanders or a decedent said about how a car accident had occurred.
Gilbert Corp. v. Yetman, 219 Ga. App. 320 (Ga. Ct. App. 1995).