All relevant evidence shall be admissible, except as limited by constitutional requirements or as otherwise provided by law or by other rules, as prescribed pursuant to constitutional or statutory authority, applicable in the court in which the matter is pending. Evidence which is not relevant shall not be admissible.
(Code 1981, §24-4-402, enacted by Ga. L. 2011, p. 99, § 2/HB 24.)
Cross references.- General admissibility of relevant evidence, Fed. R. Evid. 402.
Editor's notes.- In light of the reenactment of this Title, effective January 1, 2013, the reader is advised to consult the annotations following Code Sections 24-4-401 and 24-4-403, which may also be applicable to this Code section.
Law reviews.- For annual survey on evidence law, see 70 Mercer L. Rev. 97 (2018).
JUDICIAL DECISIONSANALYSIS
General Consideration
Editor's notes.
- In light of the similarity of the statutory provisions, decisions under former Civil Code 1910, § 5744, former Code 1933, § 38-201, and former O.C.G.A. § 24-2-1 are included in the annotations for this Code section.
Irrelevant evidence is inadmissible.
- Evidence which does not in any reasonable degree tend to establish the probability of the issues of fact in controversy is irrelevant and inadmissible. Horne v. State, 125 Ga. App. 40, 186 S.E.2d 542 (1971) (decided under former Code 1933, § 38-201).
Most acceptable test for relevancy is whether the evidence offered renders the desired inference more probable than it would be without the evidence. Southern Ry. v. Lawson, 256 Ga. 798, 353 S.E.2d 491 (1987) (decided under former O.C.G.A. § 24-2-1).
Evidence of defendants' financial worth.
- In a premises liability suit, the trial court erred by excluding evidence of the defendants' security expenditures by failing to determine whether the financial worth of the defendants was relevant to the issue since the plaintiffs contended that such evidence would show that the defendants' increased security expenditures constituted only a small percentage of the defendants' security budget. Cham v. ECI Mgmt. Corp., 353 Ga. App. 162, 836 S.E.2d 555 (2019).
Even when irrelevant evidence is admitted over timely objection, it affords no cause for a new trial, unless the nature of the evidence is such as reasonably to prejudice the rights of the objecting party. Continental Trust Co. v. Bank of Harrison, 36 Ga. App. 149, 136 S.E. 319 (1926) (decided under former Civil Code 1910, § 5744).
It is not reversible error to admit evidence that is merely irrelevant and immaterial. Mickle v. Moore, 188 Ga. 444, 4 S.E.2d 217 (1939) (decided under former Code 1933, § 38-201); Henderson v. State, 153 Ga. App. 801, 266 S.E.2d 522 (1980);(decided under former Code 1933, § 38-201).
Evidence of silence or failure to report crime evaluated on case by case basis.
- Judicially created rule excluding all comment upon a defendant's silence or failure to come forward to report a crime as more prejudicial than probative, Mallory v. State, 261 Ga. 625, 409 S.E.2d 839 (1991), was abrogated by Georgia's new Evidence Code; now such silence or failure to come forward must be evaluated on a case-by-case basis under O.C.G.A. § 24-4-403. State v. Orr, 350 Ga. App. 474, 829 S.E.2d 632 (2019).
Evidence of gang activity relevant.
- Evidence that the defendant was with two other gang members at the scene of a shooting was relevant to the material issue of the defendant's association with a criminal street gang; thus, the trial court did not abuse the court's discretion in admitting that evidence. Lang v. State, 344 Ga. App. 623, 812 S.E.2d 16 (2018).
When the defendant was convicted of possession of a firearm by a convicted felon and participation in criminal gang activity, the trial court did not err in admitting evidence that a police investigator, who was qualified as a gang expert, had seized a "book of knowledge" from the house of another gang member as the evidence was relevant to a material issue in the case because a conviction required that there be some nexus between the enumerated act and an intent to further street gang activity; and, based on the book and other information, gang members were required to possess firearms. Lang v. State, 344 Ga. App. 623, 812 S.E.2d 16 (2018).
Harmless error as to victim's gang membership.
- Trial court was not required to exclude the evidence of the victim's motorcycle gang membership as any error was harmless since the appellant admitted to shooting the victim, who was a stranger to the appellant at that moment in time and the evidence also showed that the victim was unarmed; thus, it was highly probable that the admission of the victim's alleged gang affiliation would not have contributed to the jury's verdict on the murder charge. Kilpatrick v. State, 308 Ga. 194, 839 S.E.2d 551 (2020).
Evidence immaterial.
- If evidence is offered to prove a fact not in issue, the evidence is then properly said to be immaterial. MacNerland v. Johnson, 137 Ga. App. 541, 224 S.E.2d 431 (1976) (decided under former Code 1933, § 38-201).
Immateriality need not require reversal.
- Mere fact that evidence is "immaterial" does not necessarily mean that its admission into evidence constitutes reversible error. Evidence which is immaterial will not always require reversal, since prejudice also must appear. Clarke v. State, 159 Ga. App. 843, 285 S.E.2d 270 (1981) (decided under former Code 1933, § 38-201).
Jail phone call relevant.
- Trial court did not err in admitting an audio recording of a five-minute phone call that the defendant made from jail to a friend because the recording was relevant to show that the defendant made statements that were not consistent with either the defendant's statements at the defendant's second police interview or the defense theory of justification presented at trial; and the derogatory terms used by the defendant during the phone call did not create a risk of unfair prejudice that substantially outweighed the recording's probative value as the words that the defendant used had lost much of their shock value in contemporary culture and were unlikely to induce the jury to return a conviction based on a generalized assessment of character. Smith v. State, 302 Ga. 717, 808 S.E.2d 661 (2017).
Exclusion prohibited establishing possibility of intoxication of driver who abandoned vehicle.
- In a personal injury case, the trial court abused the court's discretion by granting the defendant's motion in limine because the excluded evidence was relevant to the most important issue of the case, whether the defendant parked the vehicle in the middle of the road; thus, the trial court's exclusion precluded the plaintiff from establishing that the defendant may have been intoxicated at the time the vehicle was left and/or from opportunities to impeach the defendant's testimony. Barrett v. Burnette, 348 Ga. App. 838, 824 S.E.2d 701 (2019).
Lottery ticket investigator's statement was relevant.
- In a dispute over a $1 million lottery ticket, an investigator's testimony regarding the investigator's conversations with one claimant, including that the claimant did not remember what gas station the claimant purchased the ticket from and that the claimant claimed to always play the numbers on the ticket, which was a quick pick ticket, was highly relevant to the main issue in the case and was properly allowed. Heard v. Payne, 350 Ga. App. 283, 828 S.E.2d 657 (2019), cert. denied, 2020 Ga. LEXIS 19 (Ga. 2020).
Cited in Appling v. State Farm Fire & Cas. Ins. Co., 348 Ga. App. 369, 823 S.E.2d 61 (2019); Strother v. State, 305 Ga. 838, 828 S.E.2d 327 (2019); Serdula v. State, Ga. App. , 845 S.E.2d 362 (2020); Hill v. State, Ga. , S.E.2d (Sept. 28, 2020).
Irrelevant Evidence in Civil Cases
Evidence not relevant.
- See Atlantic Coca-Cola Bottling Co. v. Shipp, 170 Ga. 817, 154 S.E. 243, answer conformed to, 41 Ga. App. 705, 154 S.E. 385 (1930) (race) (decided under former Civil Code 1910, § 5744); Gaskill v. Brown, 103 Ga. App. 33, 118 S.E.2d 113 (1961) (decided under former Code 1933, § 38-201); Taylor v. Marsh, 107 Ga. App. 575, 130 S.E.2d 770 (1963); DeFreese v. Beasley, 114 Ga. App. 832, 152 S.E.2d 772 (1966) (decided under former Code 1933, § 38-201); Schaefer v. Mayor of Athens, 120 Ga. App. 301, 170 S.E.2d 339 (1969); Butler v. Garrison, 123 Ga. App. 645, 182 S.E.2d 185 (1971) (decided under former Code 1933, § 38-201); Lane v. Morrison, 124 Ga. App. 316, 183 S.E.2d 533 (1971); City Council v. Lee, 153 Ga. App. 94, 264 S.E.2d 683 (1980) (decided under former Code 1933, § 38-201); Ideal Pool Corp. v. Champion, 157 Ga. App. 380, 277 S.E.2d 753 (1981); Auto Rental & Leasing, Inc. v. Blizzard, 159 Ga. App. 533, 284 S.E.2d 47 (1981) (materialman's dealing with contractor unrelated to case) (decided under former Code 1933, § 38-201); Wyatt v. State, 179 Ga. App. 327, 346 S.E.2d 387 (1986) (documentary evidence) (decided under former Code 1933, § 38-201); Craig v. State, 205 Ga. App. 691, 423 S.E.2d 417 (1992);(insurance) (decided under former Code 1933, § 38-201);(net worth) (decided under former Code 1933, § 38-201);(nonsuspension of driver's license in DUI case) (decided under former O.C.G.A. § 24-2-1);(defendant's previous encounters with arresting officers) (decided under former O.C.G.A. § 24-2-1).
Ethnic identity of unknown driver not irrelevant.
- In a wrongful death case where the jury determined that an unknown third driver was 90 percent at fault in causing an accident, it was not error to allow a witness to characterize the third driver as Hispanic. The evidence was relevant to show that the witness was paying sufficient attention and was close enough to the vehicle to identify the driver, and the court would not assume that characterizing someone as Hispanic was prejudicial or that the jurors acted out of prejudice. State Farm v. Nelson, 296 Ga. App. 47, 673 S.E.2d 588 (2009) (decided under former O.C.G.A. § 24-2-1).
Evidence in malicious prosecution case.
- Malicious prosecution case was remanded to the trial court because the trial court, after concluding that plaintiff's past criminal history was relevant, should have thereafter considered whether the plaintiff's prior arrests nevertheless should be excluded because of their inherently prejudicial nature or because those arrests potentially would confuse or mislead the jury. Rivers v. K-Mart Corp., 321 Ga. App. 788, 743 S.E.2d 464 (2013).
Irrelevant Evidence in Criminal Cases
Evidence not relevant.
- See Walker v. State, 86 Ga. App. 875, 72 S.E.2d 774 (1952) (decided under former Code 1933, § 38-201); Davis v. State, 115 Ga. App. 338, 154 S.E.2d 462 (1967); Brown v. State, 118 Ga. App. 617, 165 S.E.2d 185 (1968) (decided under former Code 1933, § 38-201); Dawson v. State, 120 Ga. App. 242, 170 S.E.2d 45 (1969); Mikle v. State, 236 Ga. 748, 225 S.E.2d 275 (1976) (decided under former Code 1933, § 38-201); Strickland v. State, 247 Ga. 219, 275 S.E.2d 29; 454 U.S. 882, 102 S. Ct. 365, 70 L. Ed. 2d 192 (1981) (decided under former Code 1933, § 38-201);(prior criminal record) (decided under former Code 1933, § 38-201);cert. denied,(mental capability of accused to stand trial at a future date) (decided under former Code 1933, § 38-201).
Because the trial court properly found that testimony tending to show that the defendant's daughter possessed the methamphetamine the defendant was charged with possessing was hearsay, and testimony from the defendant's grandson was irrelevant, the defendant's conviction for possession was affirmed on appeal. Corbin v. State, 287 Ga. App. 194, 651 S.E.2d 101 (2007) (decided under former O.C.G.A. § 24-2-1).
Results of drug test irrelevant.
- Trial court did not err in disallowing defendant's testimony as to results of a test for use of illegal drugs. Whether defendant tested negative for drug use at any time is not relevant to, and did not tend to prove or disprove, whether defendant trafficked in or possessed cocaine as charged in the indictment. Montgomery v. State, 204 Ga. App. 534, 420 S.E.2d 67 (1992) (decided under former O.C.G.A. § 24-2-1).
Medical records.
- In a malice murder case, the trial court did not err when the court refused to admit medical records indicating the second victim was diagnosed with homicidal ideations sometime after the stabbing and assault as the evidence was not relevant because the diagnosis of homicidal ideation was made sometime after the criminal offenses in the case; and the diagnosis of homicidal ideation allegedly concerned thoughts the second victim had about the second victim's girlfriend and the second victim's child and not any thoughts the second victim had about the first victim, who had been murdered. Drews v. State, 303 Ga. 441, 810 S.E.2d 502 (2018).
Exclusion of evidence regarding lack of history of mental illness.
- Evidence regarding the defendant's lack of history of mental illness was properly excluded because the defendant did not raise any type of mental-health related defense for which evidence of psychological evaluations might have been relevant; the defendant pointed to no legal authority for the proposition that a defendant should be permitted to introduce expert testimony that the defendant had no history of mental illness in order to show that the defendant did not intend to commit a crime; and there was no authority suggesting that evidence of the defendant's lack of mental illness had any tendency to make the existence of any fact that was of consequence to the determination of the action more probable or less probable. Sullivan v. State, 308 Ga. 772, 843 S.E.2d 411 (2020).
Name of bookie irrelevant.
- Even though inquiry concerning a victim's gambling activities in general may have been relevant, the name of the bookie's bookie had no direct or indirect relevancy to defendant's guilt or innocence. Sorrells v. State, 267 Ga. 236, 476 S.E.2d 571 (1996) (decided under former O.C.G.A. § 24-2-1).
Expert's testimony on Intoxilyzer 5000 irrelevant.
- Trial court did not err when it excluded an expert witness's testimony about the Intoxilyzer 5000 and the proper procedures pertaining to refusals of the breath test because the state was simply required to show that the defendant was a less safe driver as a result of alcohol that the defendant had consumed and the expert's testimony about the breath test was irrelevant. Stone v. State, 248 Ga. App. 190, 546 S.E.2d 787 (2000) (decided under former O.C.G.A. § 24-2-1).
Trial court did not abuse the court's discretion in excluding expert evidence defendant sought to introduce that allegedly would have attacked the results of defendant's breath test in defendant's driving while under the influence of alcohol case as the expert evidence was too remote and uncertain to be relevant to the issue for which defendant sought to introduce the evidence, that of whether the breath test machine malfunctioned. Viau v. State, 260 Ga. App. 96, 579 S.E.2d 52 (2003) (decided under former O.C.G.A. § 24-2-1).
Cross examination on child pornography images.
- Trial court did not err in limiting the defendant's cross-examination of the co-defendant as to images of child pornography found on the co-defendant's phone because the trial court permitted the defendant's counsel to question the co-defendant as to whether the co-defendant was testifying against the defendant in an attempt to curry favor with the state immediately after the defendant asked the co-defendant about the images. Johnson v. State, 348 Ga. App. 667, 824 S.E.2d 561 (2019).
Videotape evidence irrelevant and excluded.
- In action alleging obstruction of an officer, the trial court did not err in excluding a videotape of the party from evidence as not relevant because the videotape could not have been used to impeach the deputy's testimony; the videotape did not depict the encounter between the deputy and defendant but only depicted events prior to the deputy's arrival at defendant's home. Schroeder v. State, 261 Ga. App. 879, 583 S.E.2d 922 (2003) (decided under former O.C.G.A. § 24-2-1).
Trial court did not err in excluding a videotape of a statement defendant gave to a detective at the time of the defendant's arrest as the statement was not offered to rebut a charge of recent fabrication, improper influence, or improper motive and was pure hearsay. Watson v. State, 278 Ga. 763, 604 S.E.2d 804 (2004), overruled on other grounds by State v. Lane, 308 Ga. 10, 838 S.E.2d 808 (2020) (decided under former O.C.G.A. § 24-2-1).
Threadbare evidence based on bare suspicion of a third party held inadmissible and excluded.
- Defendant's proffered evidence that a third party told the proffered witness that the third party had killed people before and buried the people in the woods and that the third party then asked the witness if the witness remembered a policeman, who did not work for the city anymore, was properly excluded as it was too threadbare to be admissible and did nothing more than toss a bare suspicion in the direction of a third party. Watson v. State, 278 Ga. 763, 604 S.E.2d 804 (2004), overruled on other grounds by State v. Lane, 308 Ga. 10, 838 S.E.2d 808 (2020) (decided under former O.C.G.A. § 24-2-1).
Questions about drug involvement irrelevant.
- Trial court properly limited defendant's cross-examination of a drug dealer who defendant claimed was the actual shooter who killed the victim by excluding all questions about the drug dealer's involvement in selling drugs as those questions were irrelevant to the murder trial. Lewis v. State, 279 Ga. 69, 608 S.E.2d 602, cert. denied, 546 U.S. 987, 126 S. Ct. 571, 163 L. Ed. 2d 478 (2005) (decided under former O.C.G.A. § 24-2-1).
While a defendant was entitled to introduce relevant and admissible testimony tending to show that another person committed the crime for which the defendant was tried, the trial court did not abuse the court's discretion in excluding evidence that an individual the defendant went to go visit on the night of the arrest was a known drug dealer and had been arrested on drug charges, as there was no evidence tending to connect that person to the marijuana found in the defendant's vehicle; hence, the evidence failed to raise a reasonable inference of the defendant's innocence, and did not directly connect the other person with the corpus delicti, or show that the other person recently committed a crime of the same or similar nature. Gerlock v. State, 283 Ga. App. 229, 641 S.E.2d 240 (2007) (decided under former O.C.G.A. § 24-2-1).
Questions about relationship with nondefendant irrelevant.
- Trial court did not abuse the court's discretion in disallowing a defendant's cross-examination of a victim's mother, about her marriage to the defendant's son as to whether the mother was "debating" with her husband "over someone giving the other person venereal disease," on relevancy grounds as the line of questioning involved the mother's relationship with her husband, rather than with the defendant. Brown v. State, 280 Ga. App. 884, 635 S.E.2d 240 (2006) (decided under former O.C.G.A. § 24-2-1).
Expert on alco-sensor test properly excluded.
- Trial court did not abuse the court's discretion in refusing to admit the testimony of a defendant's expert because the mistake charged to an arresting officer in administering an alco-sensor test too soon after the officer first stopped the defendant would not have affected the test result to which the arresting officer testified since the defendant admitted that defendant had been drinking, and the trial court admitted only the officer's testimony that the alco-sensor produced a positive result. Oliver v. State, 294 Ga. App. 299, 669 S.E.2d 162 (2008) (decided under former O.C.G.A. § 24-2-1).
Admission of challenged evidence deemed harmless error.
- In a prosecution against the defendant for child molestation, enticing a child for indecent purposes, and exhibiting pornography to a minor, even if the appeals court assumed that the word "catheter" should have been redacted from what the defendant apparently conceded was an otherwise relevant list of items found in a search, the trial court's failure to do so was harmless error, because it was highly improbable that such failure contributed to the verdict given the overwhelming evidence of the defendant's guilt. Goldey v. State, 289 Ga. App. 198, 656 S.E.2d 549 (2008) (decided under former O.C.G.A. § 24-2-1).
Evidence of abuse of victim's sibling irrelevant.
- In a child molestation case involving the defendant's child, the trial court properly excluded as irrelevant evidence that the child's stepparent had sexually molested the child's sibling. There was no evidence that the child had been molested by the stepparent or by anyone else besides the defendant, and the defendant did not show how the child might have been affected or improperly influenced by the sibling's allegations. French v. State, 288 Ga. App. 775, 655 S.E.2d 224 (2007) (decided under former O.C.G.A. § 24-2-1).
Evidence regarding victim's use of seatbelt.
- Trial court properly excluded evidence of seatbelt-use because evidence of the victim's failure to wear a seatbelt was irrelevant to causation and inadmissible in a criminal case as it did not tend to make it either more or less probable that an accident caused by the defendant proximately caused the victim's death, in violation of the statutes for homicide by vehicle in the first degree predicated on a hit-and-run offense and for hit and run. State v. Mondor, 306 Ga. 338, 830 S.E.2d 206 (2019).
RESEARCH REFERENCES
ALR.
- Admissibility of evidence of medical defendant's apologetic statements or the like as evidence of negligence, 97 A.L.R.6th 519.
Use of tweets as evidence in civil and criminal trials, 25 A.L.R. Fed. 3d 5 (2017).
Admissibility of rap lyrics or videos in criminal prosecutions, 43 A.L.R.7th Art. 1.