2021 Georgia Code
Title 24 - Evidence
Chapter 10 - Best Evidence Rule
§ 24-10-1005. Public Records

The contents of a public record, or of a document authorized to be recorded or filed and actually recorded or filed, including data compilations in any form, if otherwise admissible, may be proved by duplicate, certified as correct in accordance with Code Section 24-9-902 or Code Section 24-9-920 or testified to be correct by a witness who has compared it with the original. If a duplicate which complies with this Code section cannot be obtained by the exercise of reasonable diligence, then other evidence of the contents may be given.

(Code 1981, §24-10-1005, enacted by Ga. L. 2011, p. 99, § 2/HB 24.)

- Records, documents, and papers of public officers generally, Ch. 18, T. 50.

Evidentiary value of certified copies of wills proved and recorded in probate court, § 53-3-5.

Use of photostatic copies of wills in lieu of original in judicial proceedings, §§ 53-3-20,53-3-21.

Copies of public records to prove content, Fed. R. Evid. 1005.

- This Code section and Code Section 24-9-902 being so closely allied, and so often construed together by the courts, the notes to one will be found helpful in construing the other.

JUDICIAL DECISIONS

Editor's notes.

- In light of the similarity of the statutory provisions, decisions under former Code 1882, § 3817, former Civil Code 1895, §§ 5167, 5212, former Civil Code 1910, §§ 5753, 5799, former Code 1933, §§ 38-206, 38-602, 38-608, 38-609, Ga. L. 1965, p. 250, § 1, and former O.C.G.A. §§ 24-5-20 and24-5-31 are included in the annotations for this Code section. The reader is also advised to consult the annotations under O.C.G.A. §§ 24-9-920 and24-9-922, for annotations regarding other issues relating to admissibility of public records, including authentication.

- Best evidence rule did not prevent the introduction of certified copies of exhibits, deeds on file in the clerk of court's office, and notes when the contents of the writing were not in issue. DeKalb County v. Townsend Assocs., 243 Ga. 80, 252 S.E.2d 498 (1979) (decided under Ga. L. 1965, p. 250, § 1).

- While the use of original records as evidence was disapproved, yet when an original record had been brought into court and admitted to be such, it was admissible in evidence; and hence the original order of the commissioners calling a road bond election, as well as extracts from the original minute book of the commissioners, being admittedly originals, were not inadmissible, in the instant case, although the better method of proof would have been by properly exemplified copies. Moody v. Board of Comm'rs, 29 Ga. App. 21, 113 S.E. 103 (1922) (decided under former Civil Code 1910, § 5799).

- While the use of the record as evidence was disapproved, yet when an original record was brought into court and admitted to be such, that record was admissible in evidence. A certified copy would not be higher or better evidence than the original. Moody v. Board of Comm'rs, 29 Ga. App. 21, 113 S.E. 103 (1922) (decided under former Civil Code 1910, § 5753); Mason v. State, 197 Ga. App. 534, 398 S.E.2d 822 (1990);(decided under former O.C.G.A. § 24-5-31).

Notwithstanding the statutory rules as to the proof of official and court records by certified or exemplified copies, and as to such exemplifications being primary evidence, it was also the rule that, when the record of a court in which a case was being tried was material evidence in a case it may be proved by the production of the record itself, and a certified copy was not necessary. Woods v. Travelers Ins. Co., 53 Ga. App. 429, 186 S.E. 467 (1936) (decided under former Code 1933, § 38-602); Harrison v. State, 120 Ga. App. 812, 172 S.E.2d 328 (1969);(decided under former Code 1933, § 38-602).

- Original minutes of a superior court were not admissible in the trial of an action in a city court, over the objection that such minutes were not primary evidence. Traylor v. Epps, 11 Ga. App. 497, 75 S.E. 828 (1912) (decided under former Civil Code 1910, § 5753).

City court did not err in excluding from evidence the original papers of foreclosure proceedings in a justice's court. Original records of one court ordinarily were not admissible in evidence in a different court, but certified copies of such papers constitute primary evidence. Hall v. Treadaway, 12 Ga. App. 492, 77 S.E. 878 (1913) (decided under former Civil Code 1910, § 5799).

- Exemplification of an unsigned order of a court for the sale of lands was admissible. Smith & Co. v. Ross, 108 Ga. 198, 33 S.E. 953 (1899) (decided under former Civil Code 1895, § 5167).

- While the trial court erred in giving a prior court order "judicial notice" and binding effect, it was clear that the court could consider a prior court order as evidence. Genins v. Boyd, 166 Ga. App. 843, 305 S.E.2d 391 (1983) (decided under former O.C.G.A. § 24-5-31).

- When a division in kind was made between heirs and distributees of a decedent, a certified copy of the return of the commissioners, and of the order of the court approving the return, were admissible in evidence in an action involving title to the land covered by the award. Bell v. Cone, 208 Ga. 467, 67 S.E.2d 558 (1951) (decided under former Code 1933, § 38-206).

In a deprivation proceeding, the trial court properly admitted documents from a parent's criminal case under former O.C.G.A. § 24-5-31. The court found that the documents were attached to a negotiated plea and had been certified. In the Interest of A. R., 296 Ga. App. 62, 673 S.E.2d 586 (2009) (decided under former O.C.G.A. § 24-5-31).

- Plans for family reunification prepared by the county Department of Family and Children Services as copies of records of judicial proceedings were admissible as primary evidence in a proceeding to terminate parental rights. In re C.W.D., 232 Ga. App. 200, 501 S.E.2d 232 (1998) (decided under former O.C.G.A. § 24-5-31).

Exemplified copy of will from the judge's office was presumptive proof that the will was properly probated as otherwise the will could not have been recorded. Davis v. Tyson, 60 Ga. App. 714, 4 S.E.2d 704 (1939) (decided under former Code 1933, § 38-206).

- Highest and best evidence of a writing or of a judicial proceeding, including an indictment and the trial thereupon, were the indictment and the record of the trial. Sikes v. State, 76 Ga. App. 883, 47 S.E.2d 677 (1948) (decided under former Code 1933, § 38-206).

- While the contents of lost papers in a case on file in the clerk's office of the court may be established by copies of the papers as they appear of record in the writ book required to be kept by the clerk of the court, this method of proof was cumulative only; parol evidence was also admissible to establish the contents of the lost papers. Benton v. Maddox, 52 Ga. App. 813, 184 S.E. 788 (1936) (decided under former Code 1933, §§ 38-608 and 38-609).

- On the trial of an issue to establish lost papers in a case on file in the office of the clerk of the court when it appears from parol evidence introduced to establish copies of the lost papers that there was a return of service by the officer, but when from the evidence, which consists of the copies of the proceedings as contained in the writ book on file in the office of the clerk of the court, there appeared no return of service upon the papers, evidence consisting of the records in other cases recorded in the same writ book immediately before and immediately after the record in the present case, in which there appears no record of a return of service, and evidence of the original papers in such cases which contain a return of service, were admissible. Benton v. Maddox, 52 Ga. App. 813, 184 S.E. 788 (1936) (decided under former Code 1933, §§ 38-608 and 38-609).

- Like former O.C.G.A. § 24-7-20 (see now O.C.G.A. § 24-9-902), former O.C.G.A. § 24-5-20 did not address hearsay concerns. Consequently, that Code section did not require the admission of hearsay merely because the hearsay had been recorded in a court record certified by facsimile. McKinley v. State, 303 Ga. App. 203, 692 S.E.2d 787 (2010) (decided under former O.C.G.A. § 24-5-20).

- Bond being an office paper of the court, a certified copy or an exemplification of the bond, was primary evidence. Blount v. Bowne, 82 Ga. 346, 9 S.E. 164 (1889) (decided under former Code 1882, § 3817); Richardson v. Whitworth, 103 Ga. 741, 30 S.E. 573 (1898);(decided under former Civil Code 1895, § 5212).

- Book of minutes of a municipal corporation may be proved to be such by any witness who knows the fact, there being no objection that a certified copy would be the primary evidence. Robinson v. State, 82 Ga. 535, 9 S.E. 528 (1889) (decided under former Code 1882, § 3817).

Original minute book of county commissioners was not primary evidence. Daniel v. State, 114 Ga. 533, 40 S.E. 805 (1902) (decided under former Civil Code 1895, § 5212).

- Exemplification, or certified copy of the plat of homestead and schedule of personalty, certified by the clerk of the superior court of the county when those papers were recorded, was only secondary evidence under former Code 1933, §§ 38-601 and 38-602. Brown v. Driggers, 60 Ga. 114 (1878) (decided under former Code 1873, § 3817).

Original papers were the primary evidence. Pritchett v. Davis, 101 Ga. 236, 28 S.E. 666, 65 Am. St. R. 398 (1897) (decided under former Civil Code 1895, § 5212).

- Lease of a certain railroad being a paper which was required to be kept on file in the proper office of the executive department, a certified copy of the lease was primary evidence. Branan v. Nashville, C. & S. L. Ry., 119 Ga. 738, 46 S.E. 882 (1904) (decided under former Civil Code 1895, § 5212).

- Trial court erred in denying the appellants' motion for summary judgment because the appellees failed to present evidence sufficient to create a jury issue as to whether the appellants had a duty to inspect the exhaust vent since no permits were produced as evidence and the appellants were only required to inspect if a permit was issued. Martin v. Ledbetter, 342 Ga. App. 208, 802 S.E.2d 432 (2017).

- Former law did not apply to search warrants. DePalma v. State, 228 Ga. 272, 185 S.E.2d 53 (1971) (decided under former Code 1933, § 38-602).

- Original triplicate of the schedule of creditors and the creditors' claims, required to be filed by a bankrupt in the court of bankruptcy under the Bankruptcy Act, was an office paper, and a certified copy thereof was primary evidence. Harvard v. Davis, 145 Ga. 580, 89 S.E. 740 (1916) (decided under former Civil Code 1910, § 5799).

- In a suit for damages sustained in an automobile collision, alleging that the defendant negligently failed to yield the right-of-way at a stop sign, the trial court did not err by admitting evidence of a traffic citation issued against the defendant in conjunction with the accident. The citation noted entry of a guilty plea, but also indicated the defendant was found guilty by the municipal court. Though ambiguous and subject to conflicting interpretations, the citation was relevant if interpreted by the jury as a plea of guilty. Hunter v. Hardnett, 199 Ga. App. 443, 405 S.E.2d 286, cert. denied, 199 Ga. App. 906, 405 S.E.2d 286 (1991) (decided under former O.C.G.A. § 24-5-20).

- Trial court erred in admitting the state's exhibits, which were copies of two traffic citations stamped "FTA," pursuant to former O.C.G.A. § 24-5-20 without any determination that the exhibits fell within an exception to the rule prohibiting the use of hearsay because the state introduced the exhibits to prove the truth of the statement of the unidentified person who stamped "FTA" on the citations that the defendant failed to appear for the defendant's court date, and despite defendant's objection to the documents as hearsay, the state argued only the issue of authentication and never identified any exception to the rule prohibiting hearsay that would authorize admitting the documents; the state failed to lay the required foundation for the application of the business records exception, former O.C.G.A. § 24-3-14(b) (see O.C.G.A. § 24-8-803), because the state did not call any witness to provide the required foundation. McKinley v. State, 303 Ga. App. 203, 692 S.E.2d 787 (2010) (decided under former O.C.G.A. § 24-5-20).

- Since an original record of the trial during which the perjury with which the defendant was charged occurred was unavailable and could not be produced despite the exercise of the state's due diligence, as required by former O.C.G.A. § 24-5-31, the state was authorized to prove the defendant's perjured testimony through witness testimony pursuant to former O.C.G.A. § 24-5-2 (see now O.C.G.A. §§ 24-10-1003 and24-10-1004). Walker v. State, 314 Ga. App. 714, 725 S.E.2d 771 (2012) (decided under former O.C.G.A. § 24-5-31).

- Since the defendant did not tender the copies of the convictions which the defendant desired to have introduced to impeach the witnesses, but only made a proffer of the testimony of the clerk's representative, the state's objection based on the failure to produce the best evidence was properly sustained. The testimony of the deputy clerk as to the content of the records was not only not the best evidence, it was also hearsay. Lipscomb v. State, 194 Ga. App. 657, 391 S.E.2d 773 (1990), overruled on other grounds by Southall v. State, 2017 Ga. LEXIS 33 (Ga. 2017) (decided under former O.C.G.A. § 24-5-31).

Sentencing court improperly considered the defendant's prior state court conviction based on an uncertified copy of the indictment, a document titled "State's Version of the Offense," and a computer print-out showing that a guilty plea had been entered because the state presented only hearsay, rather than competent evidence, showing that the state was unable to obtain a certified copy of the conviction, and there was no evidence regarding whether the state used due diligence to obtain such a copy. Brinkley v. State, 301 Ga. App. 827, 689 S.E.2d 116 (2009) (decided under former O.C.G.A. § 24-5-31).

OPINIONS OF THE ATTORNEY GENERAL

Editor's notes.

- In light of the similarity of the statutory provisions, opinions under former Code 1933, §§ 38-608 and 38-609 are included in the annotations for this Code section.

- Clerk's certification that the indictment was lost wais not sufficient replacement for a certified copy of the actual indictment. 1970 Op. Att'y Gen. No. 70-61 (decided under former Code 1933, §§ 38-608 and 38-609).

RESEARCH REFERENCES

Am. Jur. 2d.

- 29A Am. Jur. 2d, Evidence, §§ 1203, 1229. 42 Am. Jur. 2d, Inspection Laws, § 11.

- 32 C.J.S., Evidence, § 883 et seq. 32A C.J.S., Evidence, §§ 773, 993, 1028, 1037.

- Photostatic or other method of recording instrument, 57 A.L.R. 159.

Necessity and manner of authenticating paper purporting to be act of private corporation, 65 A.L.R. 329.

Sheriff's deed as making a prima facie case for one seeking to recover land thereunder, 108 A.L.R. 667.

Judgment or order in connection with appointment of executor or administrator as res judicata, as law of the case, or as evidence, on questions other than the validity of the appointment, 119 A.L.R. 594.

Admissibility of evidence on question of testamentary capacity or undue influence in a will contest as affected by remoteness, relative to the time when the will was executed, of the facts of events to which the evidence relates, 124 A.L.R. 433.

Photographic representation of writing as primary or secondary evidence, 142 A.L.R. 1270; 76 A.L.R.2d 1356.

Carbon copies of letters or other written instruments as evidence, 65 A.L.R.2d 342.

Admissibility and effect of evidence or comment on party's military service or lack thereof, 9 A.L.R.2d 606.

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

Admissibility, on issue of testamentary capacity, of previously executed wills, 89 A.L.R.2d 177.

Sufficiency of evidence that will was not accessible to testator for destruction, in proceeding to establish lost will, 86 A.L.R.3d 980.