The Georgia Court of Appeals recently disapproved the pattern charge on preponderance of the evidence, holding that since it was based on the pre-2013 evidence code and referred to the reasonable-doubt standard, the charge was not a correct statement of the law. Specifically, the court held that “we conclude that the trial court’s jury instruction was improper even though it tracked the language of former O.C.G.A. § 24-1-1(5) and Georgia’s current suggested pattern jury instruction.” The case is White v. Stanley, 893 S.E. 2d 466, 471 (2023).
Attorney Tom Giannotti and I found out about the disapproval a few days before we were set to start trial and a few days after the opinion was issued. Fortunately, the Court of Appeals gave some thoughtful suggestions about what the correct charge would be. White discussed and relied upon federal law, which is unsurprising since Georgia’s revised post-2013 evidence code is based on the federal code. Specifically, White quoted the Eleventh Circuit with approval for the proposition that “the burden of showing something by a preponderance of of the evidence simply requires the trier of fact to believe that the existence of a fact is more probable than its nonexistence,” and quoted the Georgia Supreme Court for the proposition that “proof by a preponderance simply requires that the evidence show that something is more likely true than not.”
In case it is helpful, our firm has prepared a special request to charge based on the White court’s holding. It tracks the federal pattern jury instruction on the preponderance of the evidence and cites White. It is available here.