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Legal Memorandum: Violation of the "Continuing Witness Rule"

Issue: Is the ‘continuing witness’ rule violated by admission of medical articles, excerpts, and guidelines and subsequent consideration of these admitted articles by the jury during deliberations?

Area of Law: Litigation & Procedure
Keywords: Continuing witness rule; Violation; Medical articles, excerpts, and guidelines
Jurisdiction: Georgia
Cited Cases: 568 S.E.2d 597
Cited Statutes: None
Date: 03/01/2007

The proscription on a jury’s possession of written testimony does not extend to documents that are themselves relevant and otherwise admitted as original documentary evidence in a case.  Lunsford v. Laboratory Corp. of Am., 256 Ga. App. 432, 568 S.E.2d 597, 600 (2002) (citing Hodson v. Mawson, 227 Ga. App. 490, 489 S.E.2d 855 (1997)).  In Lunsford, a physician’s notes admitted into evidence were found not subject to the “continuing witness” rule.  Similarly, in Hodson, medical records were original evidence and therefore were properly given to the jury; because they were not substitutes for testimony, their submission did not violate the “continuing witness” rule.  As the court in State Farm Mut. Auto. Ins. Co. v. Drury, 222 Ga. App. 196, 474 S.E.2d 64 (1996), concluded, a written report is not the equivalent of written testimony, and therefore is not subject to the “continuing witness” rule.  In Perry v. Clay, 250 Ga. App. 68, 550 S.E.2d 125 (2001), the court held that the “continuing witness” rule did not apply to demonstrative evidence serving only to illustrate the testimony of a witness.         

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