Evidence-photos, videotapes, & audio

[Jim]

TITLE 24. EVIDENCE
CHAPTER 4. PROOF GENERALLY
ARTICLE 3. PARTICULAR MATTERS OF PROOF

O.C.G.A. § 24-4-48 (2008)

§ 24-4-48. Admissibility of photographs, motion pictures, videotapes, and audio recordings


(a) For purposes of this Code section, "unavailability of a witness" includes situations in which the authenticating witness:

(1) Is exempted by ruling of the court on the ground of privilege from testifying concerning the subject matter of the authentication;

(2) Persists in refusing to testify concerning the subject matter of the authentication despite an order of the court to do so;

(3) Testifies to a lack of memory of the subject matter of the authentication;

(4) Is unable to be present or to testify at the hearing because of death or then existing physical or mental illness or infirmity; or

(5) Is absent from the hearing and the proponent of the authentication has been unable to procure the attendance of the authenticating witness by process or other reasonable means.

An authenticating witness is not unavailable as a witness if his or her exemption, refusal, claim of lack of memory, inability, or absence is due to the procurement or wrongdoing of the proponent of an authentication for the purpose of preventing the witness from attending or testifying.

(b) Subject to any other valid objection, photographs, motion pictures, videotapes, and audio recordings shall be admissible in evidence when necessitated by the unavailability of a witness who can provide personal authentication and when the court determines, based on competent evidence presented to the court, that such items tend to show reliably the fact or facts for which the items are offered.

(c) Subject to any other valid objection, photographs, motion pictures, videotapes, and audio recordings produced at a time when the device producing the items was not being operated by an individual person or was not under the personal control or in the presence of an individual operator shall be admissible in evidence when the court determines, based on competent evidence presented to the court, that such items tend to show reliably the fact or facts for which the items are offered, provided that prior to the admission of such evidence the date and time of such photograph, motion picture, or videotape recording shall be contained on such evidence and such date and time shall be shown to have been made contemporaneously with the events depicted in the photograph, videotape, or motion picture.

(d) This Code section shall not be the exclusive method of introduction into evidence of photographs, motion pictures, videotapes, and audio recordings but shall be supplementary to any other statutes and lawful methods existing in this state.

[Jim]

Georgia-Statute allows a party to a communication to record the communication.
Accord Sheppard v. 16-11-66(a)Reid, 402 S.E.2d 793,793-94 (Ga. Ct. App. 1991)
Ga. Code Ann. §§ 16-11-62

Ga. Code Ann. § 16-11-62: Secretly recording or overhearing a conversation held in a private place, whether carried out orally or by wire or electronic means, is criminally punishable as a felony under statutory provisions regarding invasions of privacy. However, the law expressly provides that it does not prohibit a person who is a party to a conversation from recording and does not prohibit recording if one party to the conversation has given prior consent. Ga. Code Ann. § 16-11-66.
Interception of a private cellular telephone conversation without the consent of at least one of the parties is a misdemeanor. Barlow v. Barlow, 526 S.E. 2d 857 (2000).

A civil action for wiretapping offenses is authorized. Tapley v. Collins, 41 F. Supp.2d 1366 (S.D. Ga. 1999), rev'd on other grounds, 211 F.3d 1210 (11th Cir. 2000).

Use of a hidden camera "without the consent of all persons observed, to observe, photograph, or record the activities of another which occur in any private place and out of public view" is illegal. Ga. Code Ann. § 16-11-62(2).

[Jim]

Georgia

Secretly recording or listening to a conversation held in a private place, without the consent of all parties, whether carried out orally or by wire or electronic means, is a felony invasion of privacy under Georgia law. Ga. Code Ann. § 16-11-62.

Violation of the statute carries a penalty of imprisonment for not less than one nor more than five years or a fine not to exceed $10,000.00, or both. Ga. Code Ann. § 16-11-69. However, the law expressly provides that it does not prohibit a person who is a party to a conversation from recording, and allows recording if one party to the conversation has given prior consent. Ga. Code Ann. § 16-11-66. See also Malone v. State, 541 S.E.2d 431 (Ga. Ct. App. 2000).

It is also illegal for any person to divulge or distribute to any unauthorized person or authority the content or substance of any private message, regardless of whether it is intercepted lawfully or unlawfully.

However, the Court of Appeals of Georgia has held that the statute does not prohibit parents from monitoring or intercepting their minor children’s phone conversations for the purpose of ensuring the welfare of the minor child. Bishop v. State, 252 555 S.E.2d 504 (Ga. Ct. App. 2001).

Use of a hidden camera “without the consent of all persons observed, to observe, photograph, or record the activities of another which occur in any private place and out of public view” is illegal as well. Ga. Code Ann. § 16-11-62(2).

[Jim]

GEORGIA CODE
Copyright 2013 by The State of Georgia
All rights reserved.

*** Current Through the 2013 Regular Session ***

TITLE 16. CRIMES AND OFFENSES
CHAPTER 11. OFFENSES AGAINST PUBLIC ORDER AND SAFETY
ARTICLE 3. INVASIONS OF PRIVACY
PART 1. WIRETAPPING, EAVESDROPPING, SURVEILLANCE, AND RELATED OFFENSES

O.C.G.A. § 16-11-66 (2013)

§ 16-11-66. Interception of wire, oral, or electronic communication by party thereto; consent requirements for recording and divulging conversations to which child under 18 years is a party; parental exception


(a) Nothing in Code Section 16-11-62 shall prohibit a person from intercepting a wire, oral, or electronic communication where such person is a party to the communication or one of the parties to the communication has given prior consent to such interception.

(b) After obtaining the consent required by this subsection, the telephonic conversations or electronic communications to which a child under the age of 18 years is a party may be recorded and divulged, and such recording and dissemination may be done by a private citizen, law enforcement agency, or prosecutor's office. Nothing in this subsection shall be construed to require that the recording device be activated by the child. Consent for the recording or divulging of the conversations of a child under the age of 18 years conducted by telephone or electronic communication shall be given only by order of a judge of a superior court upon written application, as provided in subsection (c) of this Code section, or by a parent or guardian of said child as provided in subsection (d) of this Code section. Said recording shall not be used in any prosecution of the child in any delinquency or criminal proceeding. An application to a judge of the superior court made pursuant to this Code section need not comply with the procedures set out in Code Section 16-11-64.

(c) A judge to whom a written application has been made shall issue the order provided by subsection (b) of this Code section only:

(1) Upon finding probable cause that a crime has been committed;

(2) Upon finding that the child understands that the conversation is to be recorded and that such child agrees to participate; and

(3) Upon determining that participation is not harmful to such child.

A true and correct copy of the recording provided for in subsection (b) of this Code section shall be returned to the superior court judge who issued the order and such copy of the recording shall be kept under seal until further order of the court.

(d) The provisions of this article shall not be construed to prohibit a parent or guardian of a child under 18 years of age, with or without the consent of such minor child, from monitoring or intercepting telephonic conversations of such minor child with another person by use of an extension phone located within the family home, or electronic or other communications of such minor child from within the family home, for the purpose of ensuring the welfare of such minor child. If the parent or guardian has a reasonable or good faith belief that such conversation or communication is evidence of criminal conduct involving such child as a victim or an attempt, conspiracy, or solicitation to involve such child in criminal activity affecting the welfare or best interest of such child, the parent or guardian may disclose the content of such telephonic conversation or electronic communication to the district attorney or a law enforcement officer. A recording or other record of any such conversation or communication made by a parent or guardian in accordance with this subsection that contains evidence of criminal conduct involving such child as a victim or an attempt, conspiracy, or solicitation to involve such child in criminal activity shall be admissible in a judicial proceeding except as otherwise provided in subsection (b) of this Code section.

HISTORY: Ga. L. 1967, p. 844, § 1; Code 1933, § 26-3006, enacted by Ga. L. 1968, p. 1249, § 1; Ga. L. 1993, p. 565, § 1; Ga. L. 1994, p. 97, § 16; Ga. L. 2000, p. 491, § 4.