2020 Georgia Code
Title 24 - Evidence
Chapter 9 - Authentication and Identification
Article 1 - General Provisions
§ 24-9-901. Requirement of Authentication or Identification

1. The requirement of authentication or identification as a condition precedent to admissibility shall be satisfied by evidence sufficient to support a finding that the matter in question is what its proponent claims.
2. By way of illustration only, and not by way of limitation, the following are examples of authentication or identification conforming with the requirements of this Code section:
   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.

(Code 1981, §24-9-901, enacted by Ga. L. 2011, p. 99, § 2/HB 24.)

- Authenticating or identifying evidence, Fed. R. Evid. 901.

- For article, "Dancing with the Big Boys: Georgia Adopts (most of) the Federal Rules of Evidence," see 63 Mercer L. Rev. 1 (2011). For comment on Copeland v. State, 66 Ga. App. 142, 17 S.E.2d 288 (1941), see 4 Ga. B.J. 53 (1942).

ANALYSIS

• General Consideration
• Proof of Authenticity of Writing
• Authentication of Document Submitted for Comparison
• Documents Affecting Party's Character or Reputation
• Letters
• Source of Knowledge of Witnesses
• Authentication by Expert Witnesses
• Authentication by Nonexpert Witnesses
• Authenticity Is Question for Jury

General Consideration

Editor's notes.

- In light of the similarity of the statutory provisions, decisions under former Code 1863, §§ 3762, 3763, former Code 1868, §§ 3786, 3787, former Code 1873, §§ 3839, 3840, former Code 1882, §§ 3839, 3840, former Civil Code 1895, §§ 5239, 5246, 5247, former Penal Code 1895, § 1016, former Civil Code 1910, §§ 5828, 5835, 5836, former Penal Code 1910, § 1042, former Code 1933, § 38-701, 38-708, and former O.C.G.A. §§ 24-7-1,24-7-6, and24-7-7 are included in the annotations for this Code section. The reader is advised to also consult the annotations following O.C.G.A. § 24-9-920, for annotations regarding authentication of Georgia state and county records.

- Law applied only where the contents of the missing writing are in issue. Springer v. State, 238 Ga. 81, 230 S.E.2d 883 (1976) (decided under former Code 1933, § 38-701); Pryor v. State, 238 Ga. 698, 234 S.E.2d 918, cert. denied, 434 U.S. 935, 98 S. Ct. 422, 54 L. Ed. 2d 294 (1977), overruled on other grounds by Drinkard v. Walker, 281 Ga. 211, 636 S.E.2d 530 (2006);(decided under former Code 1933, § 38-701).

- Writing, alleged to be in the handwriting or signature of a party, is inadmissible unless the writing is proved or acknowledged to be genuine. Gunter v. State, 243 Ga. 651, 256 S.E.2d 341 (1979) (decided under former Code 1933, § 38-708).

Witnesses to the authenticity of handwriting may be illiterate. Smith v. State, 77 Ga. 705 (1886) (decided under former Code 1882, § 3839).

Document to show that party can sign name in writing and not by mark is admissible. Stewart v. White, 143 Ga. 22, 84 S.E. 63 (1915) (decided under former Civil Code 1910, § 5836); Corley v. Parson, 236 Ga. 346, 223 S.E.2d 708 (1976);(decided under former Code 1933, § 38-709).

- When the document was in the defendant's possession, a witness for the plaintiff in fieri facias was not allowed to testify as to the witness's examination of the document since the document itself was the best evidence. Hawes v. Red Oak Hauling Co., 116 Ga. App. 302, 157 S.E.2d 38 (1967) (decided under former Code 1933, § 38-701).

- Authenticity of the writing may be proved by circumstantial evidence. Gunter v. State, 243 Ga. 651, 256 S.E.2d 341 (1979) (decided under former Code 1933, § 38-708).

- Court did not err in admitting in evidence copies or duplicate licenses for operation of hotel when the city clerk testified that the duplicate documents were made at the same time as the originals, with the same operation. Hannifin v. Wolpert, 56 Ga. App. 466, 193 S.E. 81 (1937) (decided under former Code 1933, § 38-701).

- It was presumed, absent a contrary showing, or a denial by the signer, that alterations, erasures, or corrections in a writing were made prior to the signing of the writing. Kingston v. State, 127 Ga. App. 660, 194 S.E.2d 675 (1972) (decided under former Code 1933, § 38-701).

- When a plea of guilty from a prior criminal case was admitted in a subsequent civil case for impeachment, the plea was not admitted as a court paper but as a private writing. Webb v. May, 91 Ga. App. 437, 85 S.E.2d 641 (1955) (decided under former Code 1933, § 38-701).

- Because the trial court's admission of prejudicial hearsay testimony regarding the authenticity of the victim's ministry ordination certificates was harmless error, given the overwhelming evidence of the defendant's guilt, a voluntary manslaughter conviction, as a lesser-included offense of murder, was upheld on appeal. Smith v. State, 283 Ga. App. 722, 642 S.E.2d 399 (2007) (decided under former O.C.G.A. § 24-7-1).

- When the landlord's testimony that the tenant did not pay the tenant's rent as agreed under the lease was based on the tenant's personal knowledge, this was primary evidence and there was no reason why the original writing needed to be produced. McKinnon v. Shoemaker, 166 Ga. App. 231, 303 S.E.2d 770 (1983) (decided under former Code 1933, § 38-701).

- When a witness swore positively to the genuineness of handwriting, and when other handwriting by the same author was submitted to the jury for comparison, an inference of genuineness was proper. Boggus v. State, 34 Ga. 275 (1866) (decided under former Code 1863, § 3762); Gatlin v. State, 18 Ga. App. 9, 89 S.E. 345 (1916);(decided under former Civil Code 1910, § 38-708).

Trial court properly admitted an unsigned affidavit as the affidavit referred to key facts in the case including the source of the murder weapon, stolen televisions, accomplices' names, and the appellant's note on the back referred to an accomplice and upcoming trial; thus, even if another accomplice was not familiar with the appellant's handwriting, the references and the circumstances in which the other accomplice received the note authorized the finding that the state had properly authenticated the note. McCammon v. State, 306 Ga. 516, 832 S.E.2d 396 (2019).

- Although the record contained no authenticated copy of a grantor's trust, the trial court stated that at a hearing the trustee had presented evidence that was not rebutted by the trustee's sister, and that, based on that evidence, the court ruled in favor of the trustee on issues under the trust. Because no transcript of the hearing was included in the record on appeal, the appellate court assumed that the trial court relied on a true and correct copy of the trust. McIntyre v. Moss, 350 Ga. App. 723, 830 S.E.2d 262 (2019).

- Before the testimony of a witness as to the identity of handwriting can go to the jury, the witness must express what amounts to an opinion, one way or the other, at the time when the witness is testifying, under the circumstances then existing. Foster v. Jenkins & Belt, 30 Ga. 476 (1860) (decided under former law).

- Defendant's handwriting may not be measured in genuineness by a comparison with defendant's signature to a plea filed in the case, merely because such plea is in the case. Washington v. State, 124 Ga. 423, 52 S.E. 910 (1905) (decided under former Civil Code 1895, § 5246).

- Law may be applied to writings not normally admissible if the documents are to be used for a comparison of handwriting and not for documents' content. Mitchell v. State, 89 Ga. App. 80, 78 S.E.2d 563 (1953) (decided under former Code 1933, § 38-709); Guy v. State, 138 Ga. App. 11, 225 S.E.2d 492 (1976);(decided under former Code 1933, § 38-709).

- Former Code 1933, § 38-708, together with former Code 1933, § 38-709, may be applied to writings not normally admissible under former Code 1933, § 38-418 if the documents were not to be used for their content, but rather for the limited use of a comparison of the handwritings. Guy v. State, 138 Ga. App. 11, 225 S.E.2d 492 (1976) (decided under former Code 1933, § 38-708).

- When handwriting testimony was improperly admitted but was relevant only to those counts of the indictment of which defendant was acquitted, the admission of such testimony was clearly harmless. Dowdy v. State, 159 Ga. App. 805, 285 S.E.2d 764 (1981) (decided under former O.C.G.A. § 24-7-6).

- In a suit by an injured bystander against a restaurant arising out of a gun shot by an alleged restaurant employee, a police report suggesting that the shooter was working as a bouncer was admissible under O.C.G.A. § 24-4-803(8); however, the trial court failed to address the restaurant's objection that the report was not authenticated as required by O.C.G.A. § 24-9-901(a), requiring remand. Hungry Wolf/Sugar & Spice, Inc. v. Langdeau, 338 Ga. App. 750, 791 S.E.2d 850 (2016).

- The Eleventh Circuit held that, once an ancient document has been authenticated under Fed. R. Evid. 901(b)(8), the admission of the document under the hearsay exception in Fed. R. Evid. 902 is automatic. United States v. Koizy, 728 F.2d 1314 (11th Cir. 1984).

Cited in Franklin v. Pitts, 349 Ga. App. 544, 826 S.E.2d 427 (2019); Brooks v. Lopez, 350 Ga. App. 390, 829 S.E.2d 470 (2019).

Proof of Authenticity of Writing

Kinds of proof acceptable.

- Execution of a deed may be proven by: (1) its ancientness and self-contained evidence of genuineness; (2) by admission of the opposite party; (3) by registration according to law; and (4) by witnesses. Gibson v. Causey, 223 Ga. 135, 153 S.E.2d 704 (1967) (decided under former Code 1933, § 38-701).

- Deed more than 30 years old (now 20 years under current O.C.G.A. § 24-9-901), having the appearance of genuineness on inspection, and coming from the proper custody, if possession had been consistent therewith, was admissible in evidence without proving the deed's execution. McArthur v. Morrison, 107 Ga. 796, 34 S.E. 205 (1899) (decided under former Civil Code 1895, § 5239).

- In a child molestation prosecution, an email that the defendant claimed the victim sent, which the defendant sought to introduce for impeachment, was properly excluded because defendant as offering party did not tender proof of the writing's authenticity. The victim denied writing the email, and the only proof the defendant offered to authenticate the email was the fact that the email came from the victim's email address, which did not prove the email's genuineness. Hollie v. State, 298 Ga. App. 1, 679 S.E.2d 47 (2009), aff'd, 287 Ga. 389, 696 S.E.2d 642 (2010) (decided under former O.C.G.A. § 24-7-1).

- Trial court's evidentiary ruling was reversed because the trial court failed to exercise the court's discretion in ruling on the admissibility of Exhibit 3, a printout of an e-mail regarding the terms of the lease, as the record showed that the trial court failed to consider the wide variety of means by which the guarantor could authenticate the writing, including that the trial court refused to consider circumstantial evidence of its authenticity such as the appearance, contents, and substance of the document, and the fact that the lessor produced the document in response to the guarantor's discovery requests. Koules v. SP5 Atl. Retail Ventures, 330 Ga. App. 282, 767 S.E.2d 40 (2014).

- In the defendant's murder trial, the state introduced a compilation of text messages between the defendant and the defendant's friend (on whom the defendant blamed the murder) on the night of the murder; the friend, as a participant in the text conversation, properly authenticated the document's contents pursuant to O.C.G.A. § 24-9-901(b)(1). Hodges v. State, 302 Ga. 564, 807 S.E.2d 856 (2017).

- When the plaintiff admitted the execution of the deed offered in evidence by the defendant, further proof of execution was unnecessary. Ward-Truitt Co. v. Nicholson, 23 Ga. App. 672, 99 S.E. 153 (1919) (decided under former Civil Code 1910, § 5828).

- Limited liability company and its individual members were properly held liable to a bank following their failure because there was ample undisputed evidence that the bank was the company's successor-in-interest under the credit line agreements as various documents allowed judicial notice that the bank had acquired the company's assets and the loan documents were properly authenticated. Jaycee Atlanta Dev., LLC v. Providence Bank, 330 Ga. App. 322, 765 S.E.2d 536 (2014).

- Genuineness of a writing may be proved by circumstantial evidence. State v. Smith, 246 Ga. 129, 269 S.E.2d 21 (1980) (decided under former Code 1933, § 38-701).

- While possession alone was insufficient to establish a prima facie showing of authenticity, possession, together with other circumstances, could meet the burden. Martin v. State, 135 Ga. App. 4, 217 S.E.2d 312 (1975) (decided under former Code 1933, § 38-701); State v. Smith, 246 Ga. 129, 269 S.E.2d 21 (1980); Hull v. State, 265 Ga. 757, 462 S.E.2d 596 (1995) (decided under former Code 1933, § 38-701);(decided under former O.C.G.A. § 24-7-1).

- Burden of proving the genuineness of a writing rests upon the party introducing the writing. Anderson v. Cuthbert, 103 Ga. 767, 30 S.E. 244 (1898) (decided under former Civil Code 1895, § 5239); State v. Smith, 246 Ga. 129, 269 S.E.2d 21 (1980);(decided under former Code 1933, § 38-701).

- When a writing other than an original is introduced into evidence, a proper foundation must be laid including evidence that the original is not available and that the evidence being introduced is a fair and correct representation of what it purports to show. Matthews & Son v. Richards, 13 Ga. App. 412, 79 S.E. 227 (1913), later appeal, 19 Ga. App. 489, 91 S.E. 914 (1917) (decided under former Civil Code 1910, § 5828); Ward-Truitt Co. v. Nicholson, 23 Ga. App. 672, 99 S.E. 153 (1919); Swiney v. State Hwy. Dep't, 116 Ga. App. 667, 158 S.E.2d 321 (1967) (decided under former Civil Code 1910, § 5828);(decided under former Code 1933, § 38-701).

Writing must be either proven or acknowledged before admissible in evidence for comparison. McVicker v. Conkle, 96 Ga. 584, 24 S.E. 23 (1895) (decided under former Civil Code 1895, § 5247); Vizard v. Moody, 119 Ga. 918, 47 S.E. 348 (1904); Chicago Bldg. & Mfg. Co. v. Butler, 139 Ga. 816, 78 S.E. 244 (1913) (decided under former Civil Code 1895, § 5247); Ginn v. Ginn, 142 Ga. 420, 83 S.E. 118 (1914); Smith v. State, 138 Ga. App. 226, 225 S.E.2d 744 (1976) (decided under former Civil Code 1910, § 5836); Gunter v. State, 243 Ga. 651, 256 S.E.2d 341 (1979);(decided under former Civil Code 1910, § 5836);(decided under former Code 1933, § 38-709);(decided under former Code 1933, § 38-709).

An ancient deed was so far proven to be the genuine deed of the grantor, and so far established the genuineness of the grantor's signature thereto as to authorize the deed's admission in evidence for the purpose of a comparison of handwriting, upon the trial of a cause involving the question of the genuineness of the signature of such grantor to another instrument. Goza v. Browning, 96 Ga. 421, 23 S.E. 842 (1895) (decided under former Civil Code 1895, § 5247).

- Genuineness of the writing may be proved by circumstantial evidence. Gunter v. State, 243 Ga. 651, 256 S.E.2d 341 (1979) (decided under former Code 1933, § 38-709).

Circumstantial evidence of a postmark and a return address for a handwritten letter, along with a witness's testimony that the witness received the letter in the mail, was not sufficient authentication of the letter. Ross v. State, 194 Ga. App. 464, 390 S.E.2d 671 (1990) (decided under former O.C.G.A. § 24-7-7).

- Possession of letters was not of itself sufficient to prove that the possessor wrote letters, and thus establish the handwriting thereof as a standard with which to compare the handwriting. McCombs v. State, 109 Ga. 496, 34 S.E. 1021 (1900) (decided under former Civil Code 1895, § 5247).

- When the deed was signed by mark instead of by the signature of the vendor, and it was shown that the vendor could write, it was not error to allow the plaintiff to introduce in evidence the original plea, filed in another suit brought against the vendor about the time of the execution of the deed alleged to be forged, with the signature of the vendor affixed to such plea, for the purpose of showing that the vendor could write and that the vendor signed the vendor's name in writing and not by mark. Stewart v. White, 143 Ga. 22, 84 S.E. 63 (1915) (decided under former Civil Code 1910, § 5836).

Documents Affecting Party's Character or Reputation

In general.

- Upon the trial of one accused of murder it was not error to admit signatures of defendant on two pleas of guilty on two indictments for check forgery for comparison over the objection that this evidence put the defendant's character in issue. Hyde v. State, 196 Ga. 475, 26 S.E.2d 744 (1943) (decided under former Code 1933, § 38-709); Watkins v. State, 151 Ga. App. 496, 260 S.E.2d 547 (1979);(even though other samples of defendant's handwriting were available) (decided under former Code 1933, § 38-709).

- Checks which were the basis for a prior forgery conviction could be offered for a comparison with the handwriting on the 34 checks at issue in the forgery case on trial as those checks had a direct relevancy to the case and, therefore, were not objectionable because those checks also tended to show a distinct and separate crime on the part of appellant. Watkins v. State, 151 Ga. App. 510, 260 S.E.2d 547 (1979) (decided under former Code 1933, § 38-709).

For proof necessary to authenticate an unsigned letter, see Rumph v. State, 91 Ga. 20, 16 S.E. 104 (1892) (decided under former Code 1882, § 3839).

- Contents of a lost note are not proven when the witness can give no evidence of knowledge of the handwriting of the person alleged to have written the note. Bone v. State, 86 Ga. 108, 12 S.E. 205 (1890) (decided under former Code 1882, § 3839).

- Proof that letters were found in the defendant's possession is not proof that the handwriting in the letters was defendant's handwriting. McCombs v. State, 109 Ga. 496, 34 S.E. 1021 (1900) (decided under former Penal Code 1895, § 1016).

- Testimony by the recipient of a letter that the handwriting on the letter appeared to be that of the defendant was sufficient authentication of the letter to allow the letter's admission against defendant during defendant's trial for aggravated assault. Harrison v. State, 253 Ga. App. 179, 558 S.E.2d 760 (2002) (decided under former O.C.G.A. § 24-7-6).

Handwritten note, in which the first of two defendants admitted to killing the victim in order to prevent the victim from testifying was properly authenticated because the letter was consistent with prior conversations involving the non-accomplice witness and the first defendant, and was personally addressed to the non-accomplice. Williams v. State, 280 Ga. 584, 630 S.E.2d 370 (2006) (decided under former O.C.G.A. § 24-7-6).

Trial court did not err in the admission of two letters handwritten by the defendant that were used by the state to cast doubt on the defendant's mental retardation claim with regard to the defendant's murder conviction and the death sentence imposed as a Department of Corrections employee authenticated the letters after testifying that the employee would recognize the defendant's handwriting because the employee observed the defendant sign the defendant's name and had received written communications from the defendant. The employee's statement that the handwriting in the body of the letters "appears to be that of" the defendant did not render the employee's testimony too tentative to support a finding of authenticity. Rogers v. State, 282 Ga. 659, 653 S.E.2d 31 (2007), cert. denied, 552 U.S. 1311, 128 S. Ct. 1882, 170 L. Ed. 2d 747, reh'g denied, 554 U.S. 930, 128 S. Ct. 2988, 171 L. Ed. 2d 907 (2008), overruled on other grounds by State v. Lane, 308 Ga. 10, 838 S.E.2d 808 (2020) (decided under former O.C.G.A. § 24-7-6).

Any error in the admission of a defendant's response to a detective's statement that the co-indictee had implicated the defendant in a murder and robbery made before Miranda warnings were administered was harmless as the statement was cumulative of a non-expert's admissible testimony authenticating letters from the defendant to the co-indictee under former O.C.G.A. § 24-7-6 containing a certain racial epithet also used by the defendant in the response. Phillips v. State, 285 Ga. 213, 675 S.E.2d 1 (2009) (decided under former O.C.G.A. § 24-7-6).

Letter written by the defendant was sufficiently authenticated by admissible evidence, and even absent the challenged testimony about the letter, the state presented sufficient evidence from which the jury could have inferred the letter was from the defendant. Brown v. State, 332 Ga. App. 635, 774 S.E.2d 708 (2015).

Trial court properly admitted a letter in the defendant's trial for convictions in connection with a drive-by shooting because the state properly authenticated the letter as authored by the defendant since the letter was given to the prosecution by defense counsel and was properly introduced as evidence of the defendant's guilty consciousness relating to the shooting and the letter's relevance was substantially outweighed by any danger of unfair prejudice. Amey v. State, 337 Ga. App. 480, 788 S.E.2d 80 (2016).

Trial court did not err in admitting into evidence the defendant's handwritten letters because the state provided sufficient evidence to establish a prima facie case that the defendant wrote the letters, including the co-indictee's testimony that the co-indictee was familiar with the defendant's handwriting and identifying the handwriting in the letters as the defendant's handwriting. Smith v. State, 300 Ga. 538, 796 S.E.2d 666 (2017).

Trial court did not abuse the court's discretion in admitting into evidence the letters that the accomplice received from the defendant while the two men were being held in the same jail because the state made out a prima facie case that the defendant wrote the letters based on the accomplice's testimony that the accomplice believed the defendant had written the letters and the circumstances surrounding receipt of the letters in the jail indicated that the letters were from the defendant. Irving v. State, 351 Ga. App. 779, 833 S.E.2d 162 (2019).

- Letter received through the mail was not admissible in evidence when offered by the recipient, without proof of the letter's authenticity, but proof of the letter's execution could be shown by circumstantial evidence. Deaderick v. Deaderick, 182 Ga. 96, 185 S.E. 89 (1936) (decided under former Code 1933, § 38-701).

Source of Knowledge of Witnesses

Knowledge from business correspondence.

- When a witness testified that from business correspondence the witness was acquainted with the handwriting of the writer of a letter received by due course of mail, such testimony was enough to carry to the jury as evidence, and the court was right to admit the evidence. Pearson & Co. v. McDaniel, 62 Ga. 100 (1878) (decided under former Code 1873, § 3839).

- Witness was not competent to testify as to the genuineness of a signature to a lost writing when all the knowledge that the witness had upon the subject was based upon a comparison of the witness's recollection of such signature with writing proved by other witnesses to be that of the person whose name was signed to the lost instrument. Gress Lumber Co. v. Georgia Pine Shingle Co., 120 Ga. 751, 48 S.E. 115 (1904) (decided under former Civil Code 1895, § 5246).

Manner in which a witness acquired knowledge of a person's handwriting was immaterial. Reid v. State, 20 Ga. 681 (1856) (decided under former law); Bruce v. Crews, 39 Ga. 544, 99 Am. Dec. 467 (1869); Shaw v. Chiles, 9 Ga. App. 460, 71 S.E. 745 (1911) (decided under former Code 1863, § 3762); Notis v. State, 84 Ga. App. 199, 65 S.E.2d 622 (1951);(decided under former Civil Code 1910, § 5835);(decided under former Code 1933, § 38-708).

- State met requirements of O.C.G.A. § 24-9-901 based on presenting evidence that investigators sought and obtained the wiretap warrants for the phone numbers of the appellant and the appellant's brother, and the lead investigator testified about the steps taken to identify and verify the target phone numbers, the process of monitoring the phone calls, and the procedures used to discern whether the recorded calls were pertinent to the investigation of the victim's murder. Kilpatrick v. State, 308 Ga. 194, 839 S.E.2d 551 (2020).

Authentication by Expert Witnesses

In general.

- When two other letters, purporting to come from the same source as the first, were shown to experts, who compared the letters with the first letter and testified that the experts were of the opinion that the letters were all in the same handwriting, this was sufficient to admit the letters in evidence. Smith v. State, 77 Ga. 705 (1886) (decided under former Code 1882, § 3840).

Trial court did not err in admitting in evidence two notebooks, representing handwriting samples, for comparison with the kidnapping ransom note, and in refusing to strike the testimony of the state's expert witness as to comparison of these notebooks with the ransom note. Gross v. State, 161 Ga. App. 489, 288 S.E.2d 733 (1982) (decided under former O.C.G.A. § 24-7-7).

- Vacancy exclusion did not bar coverage for the vandalism loss to an insured as a matter of law, and the trial court erred in failing to grant summary judgment to the insured on that issue because the senior field adjuster's affidavit did not include any admissible evidence regarding the status of the renovation work as it relied on hearsay and unauthenticated documents. R&G Invs. & Holdings, LLC v. Am. Family Ins. Co., 337 Ga. App. 588, 787 S.E.2d 765 (2016), cert. denied, No. S16C1830, 2017 Ga. LEXIS 144 (Ga. 2017).

Handwriting expert may testify as to the genuineness of handwriting. Borders v. City of Macon, 18 Ga. App. 333, 89 S.E. 451 (1916) (decided under former Penal Code 1910, § 1042).

When handwriting expert's testimony was based upon the expert's comparison between admitted exemplars of defendant's handwriting and other unadmitted documents, introduction of such testimony into the record was error. Dowdy v. State, 159 Ga. App. 805, 285 S.E.2d 764 (1981) (decided under former O.C.G.A. § 24-7-6).

- Trial court did not err in suppressing the video recordings of any statement the defendant made to law enforcement officers while in custody because although the investigator testified that the investigator had auditioned a disc and that it reflected everything that occurred during the defendant's interview, on cross-examination, the investigator admitted that the investigator did not view the entire video in the judge's chambers; and, although the investigator testified that the disc that the investigator watched in chambers was the one the investigator had reviewed earlier and placed in a binder and gave to the prosecutor, the investigator acknowledged the disc had no identifying markers on the disc that would confirm that fact. State v. Smith, 299 Ga. 901, 792 S.E.2d 677 (2016).

- First defendant's phone records were properly authenticated after a gang expert testified to reviewing the cell phone records, that the subscriber address on the account matched an address listed for the first defendant on documents related to a prior arrest and on the first defendant's driver's license, that text messages from the cell phone number used Bloods slang and terminology, and that the number communicated with the phone numbers of the second defendant and accomplices. Nicholson v. State, 307 Ga. 466, 837 S.E.2d 362 (2019).

Authentication by Nonexpert Witnesses

In general.

- A nonexpert witness may identify the handwriting of a particular individual (as the witness would identify the individual personally), provided the witness knows the handwriting or is so familiar with the handwriting that the witness would recognize the handwriting, but such witness may not testify as to the identity of handwriting if the witness's opinion is founded solely on a comparison of a handwriting brought into court and proved to be genuine with the handwriting in question. Copeland v. State, 66 Ga. App. 142, 17 S.E.2d 288 (1941), for comment, see 4 Ga. B.J. 53 (1942) (decided under former Code 1933, § 38-709).

- Anyone familiar with the handwriting of another may offer opinion testimony as to its authenticity based on that person's knowledge and belief. Bates v. State, 18 Ga. App. 718, 90 S.E. 481 (1916) (decided under former Civil Code 1910, § 5835); Waddell v. Watkins Medical Co., 25 Ga. App. 657, 104 S.E. 250 (1920); Haygood v. Clark Co., 27 Ga. App. 101, 107 S.E. 379 (1921) (decided under former Civil Code 1910, § 5835); Copeland v. State, 66 Ga. App. 142, 17 S.E.2d 288 (1941); Gaulding v. Courts, 90 Ga. App. 472, 83 S.E.2d 288 (1954) (decided under former Civil Code 1910, § 5835); Wooten v. Life Ins. Co., 93 Ga. App. 665, 92 S.E.2d 567 (1956); Kinney v. Youngblood, 216 Ga. 354, 116 S.E.2d 608 (1960) (decided under former Code 1933, § 38-708);(decided under former Code 1933, § 38-708);(decided under former Code 1933, § 38-708);(decided under former Code 1933, § 38-708).

Nonexpert witness may identify the handwriting of a particular individual (as the witness would identify the individual personally), provided the witness knows the handwriting or is so familiar with the handwriting that the witness would recognize the handwriting. Quick v. State, 256 Ga. 780, 353 S.E.2d 497 (1987) (decided under former O.C.G.A. § 24-7-6); Summerour v. State, 211 Ga. App. 65, 438 S.E.2d 176 (1993);(decided under former O.C.G.A. § 24-7-6).

Although the witnesses to a will were deceased, the lawyer who prepared the will and the lawyer's paralegal were not permitted to testify that the signature on the will was the decedent's because the lawyer and paralegal did not demonstrate a familiarity with the decedent's signature. Ammons v. Clouds, 295 Ga. 225, 758 S.E.2d 282 (2014).

- Former O.C.G.A. § 24-7-6 did not exclude opinion testimony on the authenticity of a signature when direct evidence of execution was available. Ham v. Ham, 257 Ga. App. 415, 571 S.E.2d 441 (2002) (decided under former O.C.G.A. § 24-7-6).

Nonexpert witness must have reasons for recognizing the writing in question. Bruce v. Crews, 39 Ga. 544, 99 Am. Dec. 467 (1869) (decided under former Code 1868, § 3786); Wimbish v. State, 89 Ga. 294, 15 S.E. 325 (1892); Haygood v. Clark Co., 27 Ga. App. 101, 107 S.E. 379 (1921) (decided under former Code 1882, § 3839);(decided under former Civil Code 1910, § 5835).

- Nonexpert witness could not testify as to the identity of handwriting if the witness's opinion was based solely on comparison with handwriting proved to be genuine. Copeland v. State, 66 Ga. App. 142, 17 S.E.2d 288 (1941), for comment, see 4 Ga. B.J. 53 (1942) (decided under former Code 1933, § 38-708).

Trial court did not err in allowing a police detective, who gained knowledge of defendant's signature by witnessing the defendant sign the arraignment form, from identifying the signature on an indictment from a prior conviction; the source of the detective's knowledge was a proper question for investigation and went entirely to the credit and weight of the detective's evidence. Williams v. State, 259 Ga. App. 742, 578 S.E.2d 128 (2003) (decided under former O.C.G.A. § 24-7-6).

- Employee's testimony that the employee transmitted a document to a supervisor and received the document back with the supervisor's signature and that the employee recognized the signature as that of the supervisor because the employee was familiar with the signature satisfied the requirements of former O.C.G.A. § 24-7-6. Malin v. Servisco, Inc., 172 Ga. App. 418, 323 S.E.2d 278 (1984) (decided under former O.C.G.A. § 24-7-6).

- Data taken from the defendant's cell phone was properly authenticated as an officer testified that the officer observed another officer recover and download the text messages taken from the phone, which messages were printed out, and which contained the defendant's first name at least twice. Glispie v. State, 335 Ga. App. 177, 779 S.E.2d 767 (2015), aff'd in part and rev'd in part, 300 Ga. 128 793 S.E.2d 381 (Ga. 2016).

Trial court did not err in finding photographs of text messages on a second victim's phone were properly authenticated as a lieutenant testified that the images were fair and accurate representations of what appeared on the second victim's cell phone screen and the second victim testified that the phone number on the screen was the defendant's phone number as confirmed by a text from the defendant saying it was the defendant. Pierce v. State, 302 Ga. 389, 807 S.E.2d 425 (2017).

Text messages found on the defendant's phone were properly authenticated because the state presented ample evidence to authenticate outgoing text messages found on the defendant's phone and to establish that the defendant authored those messages as the state supplied sufficient, nonhearsay evidence via testimony of the detective as to the identity of the source such that a reasonable factfinder could have concluded that the evidence was what it was claimed to be. Johnson v. State, 348 Ga. App. 667, 824 S.E.2d 561 (2019).

- Because the defendant's only objection to the messages on a social media website was that they were prejudicial and not probative, the defendant waived any objection that the messages were not properly authenticated; however, even if the defendant did not waive the authentication objection, the victim's mother properly authenticated the messages as the mother knew the defendant went by the name "Bucky Raw" because the mother had seen videos that the defendant had posted - and in which the defendant appeared - on another website using that alias; and the mother was able to discern the defendant's identity through the conversations the mother had with the defendant on the accounts that the mother and the mother's friend had set up. Cotton v. State, 297 Ga. 257, 773 S.E.2d 242 (2015).

- Trial court did not err by allowing e-mails sent by the defendant to the victim while the defendant was in jail to go out with the jury during deliberations because the state authenticated the e-mails, as the state provided a certificate of authenticity from the jail, the victim acknowledged that the victim had been communicating with the defendant, and the e-mails contained information related to the details of the case. Woodruff v. State, Ga. App. , S.E.2d (Sept. 11, 2020).

- Trial counsel was not ineffective for failing to object to the admission of the video-recorded interview of the defendant's ex-girlfriend as the defendant's statements in that voicemail were admissions of a party opponent; and the defendant did not show that had trial counsel objected to a lack of foundation as to the voicemail instead of to the video interview, such an objection would have been meritorious because the ex-girlfriend testified that the ex-girlfriend had previously been in a relationship with the defendant and that it was the defendant's voice in the voice message. Lyons v. State, Ga. , 843 S.E.2d 825 (2020).

Defendant's voice on a recording was properly authenticated after a witness and a detective both testified that they had listened to the recording that was played for the jury and recognized the defendant's voice on the recording. The witness explained that the witness was familiar with the defendant's voice from working with the defendant, and the detective said that the detective was familiar with the defendant's voice from in-person conversations. Edwards v. State, 308 Ga. 176, 839 S.E.2d 599 (2020).

Authenticity Is Question for Jury

In general.

- It is the duty of the jury to compare the disputed writing with admittedly or proven authentic writings and then determine the authenticity of the disputed writing. Boggus v. State, 34 Ga. 275 (1866) (decided under former Code 1863, § 3763); Bruce v. Crews, 39 Ga. 544, 99 Am. Dec. 467 (1869); Collins v. Glisson, 35 Ga. App. 111, 132 S.E. 114 (1926) (decided under former Code 1868, § 3787); Rogers v. Rogers, 52 Ga. App. 548, 184 S.E. 404 (1936);(decided under former Civil Code 1910, § 5836);(decided under former Code 1933, § 38-709).

- If any specific instruction was desired as to the jury's duty to compare such writings with the signature on the note alleged to have been forged, a special written request should have been made. McRae v. Wilby, 59 Ga. App. 401, 1 S.E.2d 77 (1939) (decided under former Code 1933, § 38-709).

- Statement that the handwriting was that of a certain person was to be taken not as a conclusion but merely as an opinion the weight of which was a matter entirely for the jury. Borders v. City of Macon, 18 Ga. App. 333, 89 S.E. 451 (1916) (decided under former Civil Code 1910, § 5835); Bates v. State, 18 Ga. App. 718, 90 S.E. 481 (1916); Rogers v. Rogers, 52 Ga. App. 548, 184 S.E. 404 (1936) (decided under former Civil Code 1910, § 5835); Notis v. State, 84 Ga. App. 199, 65 S.E.2d 622 (1951); Gaulding v. Courts, 90 Ga. App. 472, 83 S.E.2d 288 (1954) (decided under former Code 1933, § 38-708);(decided under former Code 1933, § 38-708);(decided under former Code 1933, § 38-708).

RESEARCH REFERENCES

Am. Jur. 2d.

- 29A Am. Jur. 2d, Evidence, §§ 1045, 1209.

- 32 C.J.S., Evidence, §§ 820 et seq., 835 et seq., 891 et seq., 974 et seq.

- Admissibility in evidence, for purpose of comparison, of writing made by accused person at request of public authorities, 1 A.L.R. 1304.

Use of photographs in examination and comparison of handwriting or typewriting, 31 A.L.R. 1431; 17 A.L.R.2d 308.

Admissibility and weight of opinion evidence as to genuineness of signature by mark, 101 A.L.R. 767.

Authorship or authenticity of written or printed matter as inferable without extrinsic proof from name used therein or from its contents or subject matter, 131 A.L.R. 301.

Changes in handwriting as evidence of change in physical or mental condition, 134 A.L.R. 641.

Probative value of opinion testimony of handwriting experts that document is not genuine, opposed to testimony of persons claiming to be attesting witnesses, 154 A.L.R. 649.

Mode and degree of proof required to establish genuineness of handwriting offered as standard or exemplar for comparison with a disputed writing or signature, 41 A.L.R.2d 575.

Admissibility in evidence of enlarged photographs or photostatic copies, 72 A.L.R.2d 308.

Competency, as a standard of comparison to establish genuineness of handwriting, of writings made after controversy arose, 72 A.L.R.2d 1274.

Propriety of jury, or court sitting as trier of facts, making a comparison of a disputed writing with a standard produced in court, without the aid of an expert witness, 80 A.L.R.2d 272.

Proof of authorship or identity of sender of telegram as prerequisite of its admission in evidence, 5 A.L.R.3d 1018.

Unaccepted offer for purchase of real property as evidence of its value, 25 A.L.R.4th 571.

Unaccepted offer to sell or buy comparable real property as evidence of value of property in issue, 25 A.L.R.4th 615.

Unaccepted offer to sell or listing of real property as evidence of its value, 25 A.L.R.4th 983.

Admissibility of evidence as to linguistics of typing style (forensic linguistics) as basis of identification of typist or author, 36 A.L.R.4th 598.

Admissibility in evidence, in civil action, of tachograph or similar paper or tape recording of speed of motor vehicle, railroad locomotive, or the like, 18 A.L.R.6th 613.

Authentication of electronically stored evidence, including text messages and e-mail, 45 A.L.R.4th 602.

Hearsay objections to admission of text messages or testimony thereof, 10 A.L.R.7th 4.

Authentication of text messages, 38 A.L.R.7th Art. 2.

Authentication of social media records and communications, 40 A.L.R.7th Art. 1.

Authentication and admission of foreign business records in federal criminal proceeding pursuant to 18 USCS § 3505. 41 A.L.R. Fed. 2d 537.

Admissibility of handwriting expert's testimony in federal criminal case, 183 A.L.R. Fed. 333.