Make your own free website on Tripod.com

Evidence

Standard Of Proof Hearsay
Witnesses Circumstantial Evidence
Documents The Absence Or Lack Of Evidence

Employer-SOS Home





 

 

 

 


 

Hearsay (add new simpler version of hears in sep page)
 

Notarized affidavits are still hearsay and they will not be considered as evidence. They cannot substitute for the witness testifying under oath at the hearing.

See Hearsay Website (In Plain English)

 

 

Definition
Exceptions

Hearsay is an out of court statement which can either be oral (by conversation in person or over the phone) or written in the form of a document or letter. Hearsay is basically second-hand information from someone who did not actually observe the incidents described or hear the statements that are related.

In Georgia, a prior out of court statement by a witness who will testify at trial is admissible because the declarant will be available to be cross-examined about this statement. Shelton v. Long, 177 Ga. App. 534 (1986).

As a general rule, hearsay is not admissible and no document containing hearsay statements may be admitted into evidence, nor can any witness repeat a previous hearsay statement while on the stand. However, there are numerous exceptions to this rule. O.C.G.A. § 24-3-1.

24-3-1.
   
  (a) Hearsay evidence is that which does not derive its value solely
  from the credit of the witness but rests mainly on the veracity and
  competency of other persons.
   
  (b) Hearsay evidence is admitted only in specified cases from
  necessity.
 

 This is an incomplete listing of the exceptions;

  1. Business Records:  the Business Records Exception of O.C.G.A. § 24-3-14 "if the court finds that they were prepared in the ordinary course of the agency's business, at or near the time of the events or transactions described." Milich, § 19.19. Documents under the business records exception are normally inadmissible if they are prepared in anticipation of litigation (such as a DFCS report on an alleged case of deprivation). However, public records under this exception are admissible even if they are prepared in anticipation of litigation so long as the public authority has no stake or role in the controversy. Paul S. Milich, Courtroom Handbook on Georgia Evidence, p. 51.


any business record admitted may not contain statements that are opinions or conclusions. These issues raise the possibility that parts of your case file may be admissible in court while other parts are not. Portions of a document containing opinion statements may have to be blacked out before the document is submitted to the court. However, if these private citizen comments are made by parties to the proceeding, then they might come in anyway under the Admissions exception. Depending on what is being introduced at trial from your case file, the item might be admissible under this exception. Milich, §19.19.

 

Medical Diagnosis

 24-3-4.
   
  Statements made for purposes of medical diagnosis or treatment and
  describing medical history, or past or present symptoms, pain, or
  sensations, or the inception or general character of the cause or
  external source thereof insofar as reasonably pertinent to diagnosis
  or treatment shall be admissible in evidence.
 

Certified Copies

 24-3-17.
   
  (a) A certified copy of any record of the Department of Public
  Safety or comparable agency in any other state is admissible in any
  judicial proceedings or administrative hearing in the same manner as
  the original of the record.
   
  (b) Any court may receive and use as evidence in any case
  information otherwise admissible from the records of the Department
  of Public Safety obtained from any terminal lawfully connected to
  the Georgia Crime Information Center without the need for additional
  certification of those records.
 

Sworn Testimony From Prior Proceeding

First, testimony from a prior proceeding is generally not admissible unless the witness is unavailable to testify in the subsequent proceeding. Here, there was no showing of unavailability. 227 Ga. App. 324, 326,  489 S.E.2d 48, 50 (1997). Second, prior testimony is generally admissible only if the party against whom the testimony is being offered had an opportunity to cross-examine the witness at the prior proceeding.

Best Evidence Rule

Georgia's best evidence rule provides that "a writing sought to be proved shall be produced, unless its absence shall be satisfactorily accounted for."(288) If a contract has been reduced to writing then the "writing is the best evidence of the same."(289) In General Insurance Services, Inc. v. Marcola,(290) defendant contended the trial court improperly permitted plaintiff to testify about the terms of the parties' written contract. However, plaintiff first testified that, despite her repeated requests, she was never provided with a copy of the contract. One of the defendants, plaintiff further said, told her that the contract was lost. Another witness, apparently an agent of defendants, confirmed that the parties had a written agreement.(291) The court acknowledged that the best evidence of the parties' contract would be the contract itself.(292) However, a party may rely on other evidence of a contract if the party can satisfactorily account for its absence.(293) Further, pursuant to O.C.G.A. section 24-5-2, secondary evidence is admissible if "the primary evidence for some sufficient cause is not accessible to the diligence of the party."(294) Under the circumstances, the court of appeals held that plaintiff had made a sufficient showing to allow the trial court to permit the plaintiff to testify about the terms of the contract.(295)

Unlike most best evidence rules, Georgia's rule applies only to "writing[s]."(296) During the survey period, the court of appeals held that the best evidence rule does not apply to tape recordings(297) and currency.(298)

Statements Made for Medical Diagnosis

The court of appeals decision in Barone v. Law(295) may expand significantly the use of certified copies of medical records. On the other hand, the decision may raise more questions than it answers. In Barone the trial court refused to allow defendant to use certified copies of plaintiff's medical records to contradict her trial testimony that she had never had prior back, neck, or leg pain. The medical records contained medical histories apparently obtained from plaintiff that established an extensive history of back, neck, and leg pain. On appeal defendant contended that the records were admissible for both impeachment and substantive purposes.(296) The court of appeals agreed that the records potentially were admissible and, thus, reversed.(297)

The court first noted that plaintiff's statements to her medical providers were not hearsay because they were made for purposes of medical diagnosis for treatment and described her medical history.(298) Because plaintiff's statements were not hearsay, they were admissible pursuant to O.C.G.A. section 24-9-82, which provides that a "`witness may be impeached by disproving the facts testified to by him.'"(299) In addition, citing Gibbons v. State,(300) the court noted that the statements may have been admissible as prior inconsistent statements.(301)


Witnesses (Testimony may sometimes be from just one person)

·    Person Familiar with the rules or policies (usually the HR manager).

·    Person who directly warned, counseled or fired the employee.  

·    All person(s) who saw or heard  events related to the
quit or
discharge. (Otherwise it’s hearsay and inadmissible).

·    All person(s) referred to in statements made to the claims examiner, the claimant's appeal, their separation response and other correspondence. To rebut the claimant's testimony, you'll want to know who heard or saw things relevant to his defense. This is critical to avoid hearsay issues where the witnesses aren't there to defend themselves against what the claimant is saying.  Each side has the right to review the file, which should be at the career center where the presiding hearing officer is located. Before the case is set for a hearing provide the Appeals Division with blackout dates for when these witnesses will not be available. See Postponements. See Having Some Witnesses In Person and Others By Phone

·    All person(s) who the claimant may say got their message, received their letter or email, etc. For example, in a no call no show, the claimant will often say "I called in to x or y" or I emailed or sent a fax in to p or q"  Usually this will be the supervisor, office manager, store manager or team leader. Be ready with these witnesses and tell the hearing officer in advance that depending on the claimant's testimony, they may be needed on rebuttal.

·    All person(s) who heard the claimant admit to the wrongdoing

Note:   Have another witness with you whenever an employee is warned or counseled on an important matter.  This is especially important in misconduct cases, which is where the claimant will often admit to wrongdoing in front of the employer. 

An admission by the opposing party is direct evidence and can be used to prove your case at the hearing. For example, in cases involving theft, drugs, alcohol or assault, have at least 2 people present during the exit interview or discharge.

Sometimes an admission is all the direct evidence you'll have. That's why it's essential to have at least two people to hear it. Employers who forgets to bring in two people at the discharge will pay for it later at the hearing.  For at the hearing, the claimant may deny everything.  And the last thing you need is a swearing match between the claimant and your sole witness who heard it all.  Often in these situations, the hearing officer will  find for the claimant and  the employer will lose the case. So yes, the extra witness can make a difference!

See Presenting Photographs
See Presenting Videotape Evidence
See Presenting Audio Tape Evidence
See Witnesses Who Cannot Be Present For The Hearing
See
Hearsay
See
Circumstantial Evidence
See
Subpoenas
See
Most Common Mistakes At The Hearing  

The Unemployment Handbook
Cost control procedures and what to do at the hearing. Produced by Sheakley Uniservice, a well known employer UI Tax representative.

The GA DOL Employer's Handbook (Some On Quit And Discharge and Other Matters)

Back To Top

Witnesses Who Cannot Be Present For A Phone Or In Person Hearing
An Appeals Hearing may be conducted either in person or by phone. An in person hearing usually requires all parties to appear at the location on the notice of hearing.  Upon request, however, a party may be able to get permission for one or more of their witnesses to participate by phone.  To arrange for such, call the Appeals Division as soon as possible.
Try to
postpone the case if permission is denied, or if your witnesses will be unavailable,  If permission is granted, take down the date, time and name of the person you spoke with. Then have them write on Department of Labor Screen AL13 that you were given permission. (AL13 is the official agency screen for notes on an appeals case). Call them the next day and confirm these notes are still on the screen. At times they've been known to disappear.

Back To Top


Subpoenas (DOL Rule 300-2-5)

Why Subpoena?

Serving the Claimant

Valid Methods of Delivery

Proof of Service

Serving the Employer

When Witnesses Do Not Respond

Serving Non Party Witnesses Fees for Appearing

 

Subpoenaing the GDOL For Docs & Witnesses

 
Why Subpoena?

Subpoenas are used to compel a witness to testify or to obtain important documents.  Often these are important when the employer's key witness is no longer with the company.  Sometimes the missing witness is the manager who gave the claimant warnings.  At other times it's the person who  heard or saw events key to the case. Upon request, subpoenas can be freely obtained from the Georgia Department of Labor.

While the subpoena itself is free, it's still up to the employer to have them properly served on the party.  The best and cheapest way is to have your county sheriff serve them.  The cost is nominal (about $50).  Losing a single case can cost the employer up to 8060.  So spend the $50. It's worth it..

Common Use For Subpoenas

bulletTo compel the production of records or documents.
bulletTo get a scared or unwilling witness to testify.
bulletMay protect a witness from being fired or retaliated against by their employer. Useful when witness now works for another company. (The subpoena can show they were not disloyal for testifying or had a valid reason for being absent or late to work).

Attendance Cases
To establish that a doctor's note has been forged, subpoena someone from the doctor's office who either wrote or processed the note. If the claimant alleges he was in the hospital or his car broke down, you could subpoena witnesses and/or documents from the hospital or auto repair shop.

Temp Agencies/Other Places With High Employee Turnover
Get the person who saw what happened or prepared the document,  even if they're no longer employed with the company.


 
How Subpoenas Must Be Delivered (Employer's Responsibility To Deliver)

  1. Subpoenas may be hand delivered personally by someone 18 or over;1 or
  2. Sent by certified or registered mail, or statutory overnight delivery.2
  3. Subpoenas may be ignored if served in any other manner than the above. It makes no difference if the witness actually received it. Subpoenas are invalid when sent by regular first class mail, or when left on someone’s desk or inbox while they’re away.3
     

 Serving the Employer

bulletThe employer witness can be served directly or through the employer’s attorney of record.4
bulletFor records and documents, the record custodian or keeper of such records can also be served.5
bulletSubpoenas must be served on a witness at least 24 hours before the scheduled hearing. 6
 

 Serving Non Party Witnesses, Such As  Ex-Employees, Non Employees, Bystanders, the Claimant’s Friends, etc.)

bulletThese witnesses must be served directly whether through personal service, certified or registered mail, or statutory overnight delivery.7
bulletThe subpoena cannot be left with a spouse, roommate or family member.8
bulletThe subpoena cannot be served on either the claimant’s or the employer’s attorney.9
bulletSubpoenas must be served on a witness at least 24 hours before the scheduled hearing. 10
 

 Serving the Claimant (Very Rare) 

bulletThe claimant can be served directly or through his attorney of record.11
bulletThe claimant cannot be served by leaving a copy of the subpoena with a spouse, roommate or family member.12
bulletSubpoenas must be served on a witness at least 24 hours before the scheduled hearing.13
(The GDOL Appeals handbook advises such to be served at least 48-72 hours in advance)

In rare cases, the employer may want to subpoena the claimant for important records or documents. But since the claimant is bound to show up anyway, subpoenas are almost never necessary for their testimony.
 

Proof Of Service

·        Proof of personal service may be shown by an affidavit of service or other return certificate, or by an endorsement on a copy of the subpoena filed with the court.14

·        For subpoenas sent by mail or overnight delivery, the return receipt shall constitute prima-facie proof of service.15
 

What If The Witness Fails to Respond?

The witness can be compelled to attend or held in contempt of court if

bulletThe witness was validly served and
bulletThe witness has testimony or records critical to the case.

If the witness is critical and was validly served, you will need to continue the case and ask management whether new subpoenas should be issued or what to do next. It may require the Legal Department to have the subpoena enforced by Superior Court.

 
Appearance Fees

A witness fee of $10.00 per day shall be paid upon request to a subpoenaed person in attendance; other than an employee of an employer subpoenaed by that employer. The total fee shall not exceed $30.00 and shall be mailed to the address of the subpoenaed witness. In addition, an allowance of $ .20 per mile shall be paid, up to a maximum of $20.00, for attendance of a witness at a hearing. GA Rule 300-2-5-02(3)(c).

Fees Paid By The Georgia State Government
Witnesses subpoenaed pursuant to this article shall be allowed fees at a rate fixed by the Commissioner. Such fees shall be deemed a part of the expense of administering this chapter.  OCGA 34-8-224.

DOL Requirements ( Rule 300-2-5)

(b) Issuance of subpoenas. Subpoenas to compel the attendance of witnesses and the production of records pertinent to any hearing of an appeal shall be issued by the Chief Administrative Hearing Officer upon request therefore from a party of interest. The party requesting said subpoenas must show the necessity therefore and shall have the responsibility of serving said subpoenas.

Subpoenaing The Department

34-8-126.

Information or records deemed private and confidential under this chapter shall be available to parties to judicial or formal administrative proceedings only upon a finding by the presiding officer that the need for the information or records in the proceeding outweighs any reasons for the privacy and confidentiality of the information or records. Information or records deemed private and confidential under this chapter shall not be available in discovery proceedings unless the court in which the action has been filed has made the finding specified above. A judicial or administrative subpoena or order directed to the department must contain this finding. A subpoena for records or information held by the department may be directed to and served upon any employee of the department, but the department may specify by rule or regulation which employee shall produce the records or information in compliance with the subpoena.

Back To Top
 

Case Notes

1. OCGA 24-10-23.

2. OCGA 24-10-23.

3. (Subpoena placed in mail slot invalid and could be ignored) Edenfield v. State, 147 Ga.App. 502, 249  
    SE2d 316 (1978); (Subpoena sent in unstamped envelope through prison mail could be ignored though
    witness received it.) See Heard  v. Hopper, 233 Ga. 617, 618,  212  SE2d 797) (1975).

4. OCGA 24-10-23.

5. Mijajlovic v. State, 179 Ga. App. 506, 347 SE2d 325 (1986).

6. Eubanks v. Brooks, 139 Ga. App. 166, 227 S.E 2d 923 (1976).

7. OCGA 24-10-23.

8. (Subpoena invalid when left with spouse; law does not allow subpoena to be left with person other than
    to whom it is directed) Lake  v. Hamilton Bank Of Dalton,148 Ga. App. 348. 251 S.E.2d 177 (1978)

   (under prior but virtually identical statute)(Partially Overruled on other grounds in Hamilton Capital
   Group, Inc. v. Equifax; 266 Ga. App. 1, 596 SE2d 656 (2004)).

9. (subpoena invalid when the witness was not a party to the case and such was served on  attorney for one
     of the parties)
Haywood v. Aerospec, Inc, 193 Ga. App. 479, 388 S.e.2d 367 (1989).

10. Eubanks v. Brooks, 139 Ga. App. 166, 227 S.E 2d 923 (1976).

11. OCGA 24-10-23.

12. (Subpoena invalid when left with spouse; law does not allow subpoena to be left with person other than

      to whom it is directed) Lake v. Hamilton Bank Of Dalton 148 Ga. App. 348. 251 S.E.2d 177 (1978)
      (under prior but virtually identical statute).

13. Eubanks v. Brooks, 139 Ga. App. 166, 227 S.E 2d 923 (1976).

14. OCGA 24-10-23. Statute’s wording varies slightly from above. See
       http://www.dmqlaw.com/CM/Articles/Articles84.asp

15. OCGA 24-10-23.


Documents (See Written Warnings)
All your documents must be sent to the Appeals Division in advance of the hearing. NEVER DEPEND ON THE DOL TO FORWARD THEM FROM YOUR FIRST HEARING WITH THE CLAIMS EXAMINER. ALWAYS SEND THEM AGAIN DIRECTLY TO THE APPEALS DIVISION.

Have all documents with you for your phone or in person hearings. Be sure to provide the claimant with copies before the hearing. If you don't and it's a phone hearing, the document may be excluded from the record.

Usually, you cannot rely on documents without having the author of the documents present to testify about them. Notarized documents and affidavits are still hearsay and almost never admissible.  See Circumstantial Evidence

Exceptions:
You can always use a document that was signed or prepared by the other party or their agent.   This is called an admission. For example, if the claimant says he was fired, you  may submit a signed copy of his resignation letter to show he really quit.

Unsigned documents that contain statements from the other side can always be used to impeach or attack the witness’s credibility. For example: If the claimant testifies that he was never late to work, you can offer the unsigned statements he made to the claims examiner to show to the contrary. (Ask for notes on DOL Screen NM48). Also, you can use your own documents to rebut something already said by the other side. However, if they're hearsay, you can only use them to ask the claimant questions. If the claimant admits to the fact, it's no longer hearsay, but the document itself will not be allowed into evidence.

See Recording The Hearing and Reviewing The File
See
Presenting Photographs
See Presenting Videotape Evidence
See Presenting Audio Tape Evidence
See
Subpoenas
See
Confirming Receipt Of Warnings Sent By Email

See Most Common Mistakes At The Hearing  

The Unemployment Handbook
Cost control procedures and what to do at the hearing. Produced by Sheakley Uniservice, a well known employer UI Tax representative.

The GA DOL Employer's Handbook (Some On Quit And Discharge and Other Matters)
 

Back To Top



Types Of Documents (Properly Documenting)

For A Quit
Any documentation showing the claimant quit for a bad cause, never gave the employer an opportunity to correct the matter or never followed the chain of command. Also submit documents showing how employer responded to the problem (if applicable).

For A Discharge

Documents should show there was a Rule, there was a Warning and there were Write-ups.
An exception exists for severe misconduct where there may be no need for a rule or a warning. i.e. theft, sabotage etc.

bullet

Write-ups or warnings should be prepared at or near the time of occurrence or discovery.

bullet

Warnings should list what occurred and say that future occurrences "may result in disciplinary action up to and including termination."

bullet

At bottom of Doc should be bold conspicuous place For “Employee Comments”. (Refer to it so they know it’s there.  If they do not write anything at the time it was given to them, ask them at the hearing why they left it blank and have a different story now.)  

bullet

Signed document showing claimant received copy of the Employee Handbook.

bullet

Praise Or Other Documents showing employee met the standard after receiving warning or correction. (shows poor performance not due to inability).

See Most Common Mistakes At The Hearing  
See Confirming Receipt Of Warnings Sent By Email

The Unemployment Handbook
Cost control procedures and what to do at the hearing. Produced by Sheakley Uniservice, a well known employer UI Tax representative.

The GA DOL Employer's Handbook (Some On Quit And Discharge and Other Matters)
 

Back To Top
 

Standard Of Proof
There is no "beyond a reasonable doubt"
standard for unemployment hearings.  The standard is simply a preponderance of the evidence, i.e. that  "more likely than not" this is what occurred.  Under the preponderance standard, even the slightest bit of evidence can tip the scales.

OCGA Section 24-1-1(5) defines preponderance of evidence as "that superior weight of the evidence
upon the issues involved, which, while not enough to free the mind wholly from a reasonable doubt, 
is yet sufficient to incline a reasonable and impartial mind to one side of the issue rather than to the other."                          

DEF8 (The Official Plug in Used by Hearing Officers In Their Decisions)
In determining where the preponderance of evidence lies, the administrative
hearing officer may consider all the facts and circumstances of the case, the witnesses'
manner of testifying, their intelligence, their means and opportunity for knowing the facts to
which they testify, the nature of the facts to which they testify, the probability or
improbability of their testimony
, their interest or want of interest, and their personal credibility
so far as the same may legitimately appear from the hearing.  The Administrative Hearing
Officer may also consider the number of witnesses, although the preponderance is not necessarily
with the greater number.                                                                         

Back To Top

The Absence Or Lack Of  Evidence
At times you can show there was an absence or lack of evidence-evidence that 
would otherwise be there if the claimant were being truthful.  For example, "if the claimant really fell down the stairs
there would have been an accident report, and at the very least, HR would have heard about it." 
or; "If the claimant called in like he says he did, these calls would definitely have been logged in our computer records. Since
we have no record of such, the claimant is not telling the truth. The event never happened.
A lack of evidence has nothing to do with statements made by others. Therefore there should be no problems with
hearsay.  Hearsay usually occurs when you're using what someone else said and they're not testifying at the hearing.
But in this case, you're simply stating that if the event happened, you would have been told about it.
Evidence That Should Have Been There If The Claimant Were Telling The Truth
Examples:
bullet
Call in records to show the claimant was checking with the employer for more work (Temp Agencies).
bullet
Incident reports showing the accident occurred.
bullet
A doctor's note showing an existing medical condition.
bullet
Written proof they had authorization to change time logs (See Time Records)
bullet
Direct Testimony from the HR person/Supervisor/VP etc, stating that if the event happened, they would have 
been notified.. Likewise, if the subordinate normally reports everything to the director, the absence of such, tends
to prove it did not happen. Same goes with business records that log daily events. The employer must show that
such reporting is a normal part of their business practices and that this type of event would
normally have been logged or reported to the testifying witness.
The Absence Of a Denial Can Point To Guilt When An Innocent Person Would Have Spoken
Examples: 
bullet
At the termination interview the claimant is accused of theft but remains silent.
bullet
Claimant never denies wrongdoing until at the hearing.
bullet
Claimant never wrote on his warnings that he disagreed with them.
bullet
Claimant adds new information that he never told the claimant examiner or put on his appeal letter.
bullet
Claimant says nothing when at discharge shown video or tape recording of his wrongdoing.
Closing Statement (Explaining To The Hearing Officer Why The Claimant Is Not Credible)
There is no "beyond a reasonable doubt" standard for unemployment hearings. The standard is simply a 
preponderance of the evidence. That when you weigh the evidence, "more likely than not" this is what happened. And under
this standard, even the slightest bit of evidence can tip the scales.

As you know, the administrative hearing officer may consider all the facts and circumstances of the case.
These include the witnesses' manner of testifying, their means and opportunity for knowing the facts to
which they testify, the nature of the facts to which they testify, and lastly, the probability or
improbability of their testimony.

In essence it's a standard of common sense. A standard that looks into human nature and measures how people 
normally behave. It's also a standard on how businesses normally behave.

So if  a witness behaves unreasonably, or their story demands you accept bizarre assumptions, then it's likely
something is wrong here. 
In the instant case, the claimant's behavior is at odds with what a reasonable person would do in the
same situation. And if you accept his story, you would also have to accept the bizarre assumption that our business
did x, y and z.

Here the claimant said.....

Make a list of all the claimant admitted to, i.e.
irregular actions, admissions with strange
explanations, etc.  Then, with the DEF8 credibility
plug in in mind, see if you can spot any unreasonable
actions or weird behavor that a normal person would
not do.

Further,

The actions of the employer are exactly what was to be expected in the situation.

The employer did x, y and z, and would have certainly done P D and Q if what the claimant testified to had actually happened.

Also, to hold for the claimant one would have to assume...

(The employer lost all the records/all x# of witnesses were lying/The employer was so heartless that
they ignored such an important event etc..)

Based on the improbability of the claimants testimony, and his unreasonable actions, we believe that the superior weight of the evidence rests with the employer.  Therefore we request that benefits be denied.

Recording The Hearing and/or Examining The File (OCGA 34-8-222)
.....The hearing may be recorded by one or both of the interested parties, provided prior written consent is received by the office of administrative appeals from all interested parties.  ...No provision of this Code section shall preclude the Commissioner from making the original documents, papers, and transcripts available for inspection upon written request by any party to the proceedings. Documents, papers, and transcripts shall be available for inspection during normal working hours at the office of the department in Atlanta or at the local office of the department where the original claim for benefits under this law was filed.

Back To Evidence