2021 Georgia Code
Title 24 - Evidence
Chapter 14 - Proof Generally
Article 3 - Particular Matters of Proof
§ 24-14-40. Evidence of Identity; Burden in Civil Proceedings

1. Concordance of name alone is some evidence of identity. Residence, vocation, ownership of property, and other like facts may be proved. Reasonable certainty shall be all that is be required.
2. In civil proceedings, parties shall generally be relieved from the onus of proving identity, as it is a fact generally more easily disproved than established.

(Code 1981, §24-14-40, enacted by Ga. L. 2011, p. 99, § 2/HB 24.)

- DNA sampling, collection, and analysis, § 35-3-160.

- For article, "DNA Fingerprinting: A Scientific Perspective," see 42 Mercer L. Rev. 1099 (1991).

JUDICIAL DECISIONS

Editor's notes.

- In light of the similarity of the statutory provisions, decisions under former Civil Code 1910, § 5765, former Code 1933, § 38-304, and former O.C.G.A. § 24-4-40 are included in the annotations for this Code section.

- Requiring a suspect in a criminal case to verbalize specified words for identification purposes, whether or not the words used were the same as those allegedly used during the commission of the offense, did not violate an accused's privilege against self-incrimination accorded the accused by the United States Constitution and the state statutes and Constitution. Tate v. State, 153 Ga. App. 508, 265 S.E.2d 818 (1980) (decided under former Code 1933, § 38-304).

Identification testimony admissible when it was relevant and supported by facts. Clark v. State, 153 Ga. App. 829, 266 S.E.2d 577 (1980) (decided under former Code 1933, § 38-304).

- Question of identity was one for the jury. Calhoun v. Herrin, 125 Ga. App. 518, 188 S.E.2d 273 (1972) (decided under former Code 1933, § 38-304).

Identity of names was generally prima facie evidence of identity of persons. Hardrick v. State, 96 Ga. App. 670, 101 S.E.2d 99 (1957) (decided under former Code 1933, § 38-304).

Concordance of name was sufficient to show that the defendant and the individual previously convicted were the same person, in the absence of any denial by the defendant and no proof to the contrary. Hammond v. State, 139 Ga. App. 820, 229 S.E.2d 685 (1976) (decided under former Code 1933, § 38-304).

In the absence of a denial by the defendant that the defendant was the perpetrator of a previous crime and any proof to the contrary, a concordance of name was sufficient to show that the defendant and the individual previously convicted were the same person. Lewis v. State, 234 Ga. App. 873, 508 S.E.2d 218 (1998) (decided under former O.C.G.A. § 24-4-40).

Under former O.C.G.A. § 24-4-40(a), if a defendant had the same name as is specified in a certified copy of a conviction, the concordance of name alone was some evidence of identity; without evidence to the contrary, the concordance of name established the previous conviction. Additionally, defendant stated the sentence set forth in the final disposition and acknowledged that defendant served the sentence. Patterson v. State, 259 Ga. App. 630, 577 S.E.2d 850 (2003) (decided under former O.C.G.A. § 24-4-40).

Trial court did not err in admitting similar transaction evidence because the prior armed robbery victim's identification of the defendant as one of the robbers was based on an investigating officer's personal knowledge; a second police officer's testimony that the officer had arrested a man with the same name as the defendant with a date of birth of February 23, 1984, was sufficient circumstantial evidence that the defendant committed a motor vehicle theft in 1998. Smith v. State, 304 Ga. App. 708, 699 S.E.2d 742 (2010), overruled on other grounds, Reed v. State, 291 Ga. 10, 727 S.E.2d 112 (2012) (decided under former O.C.G.A. § 24-4-40).

- Witness could testify as to the identity of another person by showing that the other person had assumed and adopted the name in question. Hardrick v. State, 96 Ga. App. 670, 101 S.E.2d 99 (1957) (decided under former Code 1933, § 38-304).

- If a witness mentioned the name of a person, it would be referred to the person in the case of that name, rather than to some outsider. Swift v. Oglesby & Smith, 8 Ga. App. 540, 70 S.E. 97 (1911) (decided under former Civil Code 1910, § 5765).

If pretrial showup may have been unnecessarily suggestive, the criteria to determine whether there was a substantial likelihood of irreparable misidentification are: (1) opportunity to view the defendant at the scene; (2) witness's degree of attention; (3) accuracy of prior description; (4) level of certainty demonstrated at confrontation; and (5) time lapse. Tate v. State, 153 Ga. App. 508, 265 S.E.2d 818 (1980) (decided under former Code 1933, § 38-304); Smith v. State, 160 Ga. App. 60, 286 S.E.2d 45 (1981);(decided under former Code 1933, § 38-304).

- In determining whether the eyewitness testimony following a preindictment investigative lineup should be admitted, each case must have been considered on its own facts and a two-prong test must have been applied: (1) whether the photographic display was impermissibly suggestive, and, if it was, the court must consider (2) whether there was a substantial likelihood of irreparable misidentification. Cheeves v. State, 157 Ga. App. 566, 278 S.E.2d 148 (1981) (decided under former O.C.G.A. § 24-4-40).

In considering whether lineup was impermissibly suggestive, evil to be avoided was likelihood of misidentification of an accused. James v. State, 157 Ga. App. 645, 278 S.E.2d 187 (1981) (decided under former O.C.G.A. § 24-4-40).

Reliability of any identification procedure requires determination of whether it was in any way tainted by illegal pretrial showup or lineup or by use of photographs; in such situations the court should consider the totality of the circumstances and determine first if the procedures were impermissibly suggestive, and, if so, did that procedure give rise to a substantial likelihood of irreparable misidentification. Miller v. State, 158 Ga. App. 21, 279 S.E.2d 289 (1981) (decided under former O.C.G.A. § 24-4-40).

Photo array was not impermissibly suggestive because the eyewitnesses testified that the eyewitnesses looked at the lineup outside the presence of each other, read an admonition form before looking at the lineup, and picked out defendant's photograph; furthermore, the officer showing the lineup to the eyewitnesses did not tell the eyewitnesses that the eyewitnesses had picked the "right" photograph. Pace v. State, 272 Ga. App. 16, 611 S.E.2d 694 (2005) (decided under former O.C.G.A. § 24-4-40).

Vocal verification was analogous to visual verification. Wallace v. State, 156 Ga. App. 525, 275 S.E.2d 110 (1980) (decided under former Code 1933, § 38-304).

Photographic array could be suggestive when used close in time to a lineup, but when the record was devoid of specifics which would substantiate a claim of misidentification and the witness was able to identify appellant from the array, the procedure was not impermissibly suggestive. Coleman v. State, 150 Ga. App. 380, 258 S.E.2d 12 (1979) (decided under former Code 1933, § 38-304).

Evidence of other offenses of a similar nature may have been admitted in criminal prosecutions for the purpose of identifying the accused and for the purpose of showing a common motive, plan, scheme, bent of mind, or course of conduct. Laws v. State, 153 Ga. App. 166, 264 S.E.2d 700 (1980) (decided under former Code 1933, § 38-304); Chambers v. State, 154 Ga. App. 620, 269 S.E.2d 42 (1980);(decided under former Code 1933, § 38-304).

- Personal appearance, conversations, account one gave of oneself, one's family connections and associations, were admissible. Mullery v. Hamilton, 71 Ga. 720 (1883) (decided under former law).

- In the instant suit by the beneficiary on a policy insuring the life of one's brother, even if under this rule the burden of providing that the person, bearing the same name as the insured and as to whom proof of death by pleuro-pneumonia was made, was the insured named in the policy, the onus was sufficiently met by the plaintiff's testimony, admitted without objection, that plaintiff's brother, of the name stated in the policy, was a world war veteran, that the Veterans' Bureau in Washington, D.C., informed plaintiff of plaintiff's brother's death, and that upon further inquiry plaintiff found that plaintiff's brother had died in a town in New Jersey, no evidence having been presented by the defendant to dispute such identity, a finding on that question was demanded for the plaintiff. Progressive Life Ins. Co. v. Haygood, 53 Ga. App. 231, 185 S.E. 534 (1936) (decided under former Code 1933, § 38-304).

Sufficient evidence established the juvenile's identity beyond a reasonable doubt because, when the juvenile court called the case for hearing, the judge used the juvenile's full first and last names to identify the case, and announced for the record that the juvenile was present; during the officer's testimony, the officer used the juvenile's surname, to identify the juvenile at the apartment complex who fled when the officer approached, causing the officer to give chase; and the record contained no evidence of any other juvenile with the same last name being at the scene of the July 18 incident or in the courtroom at the time of the hearing. In the Interest of A. A., 334 Ga. App. 37, 778 S.E.2d 28 (2015).

RESEARCH REFERENCES

Am. Jur. 2d.

- 29 Am. Jur. 2d, Evidence, § 576 et seq. 29A Am Jur. 2d, Evidence, §§ 1399, 1400, 1403 et seq.

Lineups and Showups - Admissibility and Effect of Pretrial Identification, 19 POF2d 435.

Foundation for DNA Fingerprint Evidence, 8 POF3d 749.

- 31A C.J.S., Evidence, § 263. 32A C.J.S., Evidence, § 1304, 1305.

- Footprints as evidence, 31 A.L.R. 204; 35 A.L.R.2d 856.

Baptismal certificate or church record as evidence of age, 36 A.L.R. 689.

Admissibility and weight of evidence of resemblance on question of paternity or other relationship, 40 A.L.R. 97; 95 A.L.R. 314.

Admissibility in action for death of statements against interest by decedent, 114 A.L.R. 921.

Blood grouping tests, 163 A.L.R. 939; 46 A.L.R.2d 1000.

Evidence of identity for purposes of statute as to enhanced punishment in case of prior conviction, 11 A.L.R.2d 870.

Admissibility of declaration of persons other than members of family as to pedigree, 15 A.L.R.2d 1412.

Proof of identity of person or thing where object, specimen, or part is taken from a human body, as basis for admission of testimony or report of expert or officer based on such object, specimen, or part, 21 A.L.R.2d 1216.

Fingerprints, palm prints, or bare footprints as evidence, 28 A.L.R.2d 1115.

Identification of accused by his voice, 70 A.L.R.2d 995.

Homicide: identification of victim as person named in indictment or information, 86 A.L.R.2d 722.

What evidence is admissible to identify plaintiff as person defamed, 95 A.L.R.2d 227.

Admissibility of evidence of showup identification as affected by allegedly suggestive showup procedures, 39 A.L.R.3d 791.

Admissibility of evidence of photographic identification as affected by allegedly suggestive identification procedures, 39 A.L.R.3d 1000.

Malicious prosecution: liability for instigation or continuation of prosecution of plaintiff mistakenly identified as person who committed an offense, 66 A.L.R.3d 10.

Emotional manifestations by victim or family of victim during criminal trial as ground for reversal, new trial, or mistrial, 31 A.L.R.4th 229.

Admissibility of bare footprint evidence, 45 A.L.R.4th 1178.

Admissibility in evidence of composite picture or sketch produced by police to identify offender, 23 A.L.R.5th 672.

Admissibility of evidence of voice identification of defendant as affected by allegedly suggestive voice lineup procedures, 55 A.L.R.5th 423.