necessity exception in Georgia

2015The statements in question related to Rai’s disapproval of Ricky and Sparkle’s relationship due to racial and cultural differences; the Rais’ desire to arrange Ricky’s marriage; certain incidents involving Sparkle and Rai; and the fact that Sparkle and Ricky had moved to Atlanta in order “to get away from” the Rais. 2 Under the rules of evidence applicable at the time of Rai’s trial, hearsay statements were admissible under the necessity exception only if such evidence was deemed “ ‘necessary’ ” and the statements bore “ ‘particular guarantees of trustworthiness.’ ” Chapel v. State, 270 Ga. 15

2015The statements in question related to Rai’s disapproval of Ricky and Sparkle’s relationship due to racial and cultural differences; the Rais’ desire to arrange Ricky’s marriage; certain incidents involving Sparkle and Rai; and the fact that Sparkle and Ricky had moved to Atlanta in order “to get away from” the Rais. 2 Under the rules of evidence applicable at the time of Rai’s trial, hearsay statements were admissible under the necessity exception only if such evidence was deemed “ ‘necessary’ ” and the statements bore “ ‘particular guarantees of trustworthiness.’ ” Chapel v. State, 270 Ga. 15

2011Ward v. State, 271 Ga. 648, 650 (2) ( 520 SE2d 205 ) (1999) (where it is shown, under the totality of the circumstances that the statements were made to “one in whom the deceased declarant placed great confidence and to whom [he or] she *573 turned for help with [his or] her problems,” statements are admissible under the necessity exception).

2011Ward v. State, 271 Ga. 648, 650 (2) ( 520 SE2d 205 ) (1999) (where it is shown, under the totality of the circumstances that the statements were made to “one in whom the deceased declarant placed great confidence and to whom [he or] she *573 turned for help with [his or] her problems,” statements are admissible under the necessity exception).

1999Oral argument was heard on February 8, 1999. [2] See OCGA § 24-3-1(b); Drane v. State, 265 Ga. 663, 664 , 461 S.E.2d 224 (1995); Higgs v. State, 256 Ga. 606, 607 , 351 S.E.2d 448 (1987). [3] Drane, supra; Higgs, supra. [4] Higgs, 256 Ga. at 607 , 351 S.E.2d 448 , quoting Chrysler Motors Corp. v. Davis, 226 Ga. 221, 224 , 173 S.E.2d 691 (1970) (emphasis in original). [5] In addition, we have recently emphasized that before hearsay evidence will be admitted under the necessity exception, it must be determined by the trial court that the evidence will be more probative than other admissible evide

1999Oral argument was heard on February 8, 1999. [2] See OCGA § 24-3-1(b); Drane v. State, 265 Ga. 663, 664 , 461 S.E.2d 224 (1995); Higgs v. State, 256 Ga. 606, 607 , 351 S.E.2d 448 (1987). [3] Drane, supra; Higgs, supra. [4] Higgs, 256 Ga. at 607 , 351 S.E.2d 448 , quoting Chrysler Motors Corp. v. Davis, 226 Ga. 221, 224 , 173 S.E.2d 691 (1970) (emphasis in original). [5] In addition, we have recently emphasized that before hearsay evidence will be admitted under the necessity exception, it must be determined by the trial court that the evidence will be more probative than other admissible evide

1999Appellate case law bears out this narrowness of the definition of “unavailability.” See, e.g., Mallory v. State, supra, 261 Ga. 625 (dead witness deemed unavailable for purposes of the necessity exception); Luallen v. State, 266 Ga. 174 (5) ( 465 SE2d 672 ) (1996), overruled on other grounds in Clark v. State, 271 Ga. 6 ( 515 SE2d 155 ) (1999) (witness who invokes marital privilege is unavailable under the necessity exception); Turner v. State, 216 Ga. App. 896 ( 456 SE2d 241 ) (1995) (witness who invokes the privilege against self-incrimination deemed unavailable for necessity exception purpo

1999Appellate case law bears out this narrowness of the definition of “unavailability.” See, e.g., Mallory v. State, supra, 261 Ga. 625 (dead witness deemed unavailable for purposes of the necessity exception); Luallen v. State, 266 Ga. 174 (5) ( 465 SE2d 672 ) (1996), overruled on other grounds in Clark v. State, 271 Ga. 6 ( 515 SE2d 155 ) (1999) (witness who invokes marital privilege is unavailable under the necessity exception); Turner v. State, 216 Ga. App. 896 ( 456 SE2d 241 ) (1995) (witness who invokes the privilege against self-incrimination deemed unavailable for necessity exception purpo

2009There are two requirements under the necessity exception, “necessity” and “particularized guarantees of trustworthiness.” Azizi v. State, 270 Ga. 709, 711 (2) ( 512 SE2d 622 ) (1999).

2009There are two requirements under the necessity exception, “necessity” and “particularized guarantees of trustworthiness.” Azizi v. State, 270 Ga. 709, 711 (2) ( 512 SE2d 622 ) (1999).

2000The trial court admitted one hearsay statement by the deceased victim where the statement had been made immediately after concluding a telephone call and where the victim appeared “really scared and jolted.” In contrast, the excluded hearsay statement was made after the victim, returning from his lunch break, “just nonchalantly walked in and was talking to [the witness].” The witness further stated during the defense’s proffer that the declarant “didn’t look afraid or nothing.” Application of the necessity exception requires “a circumstantial guaranty of the trustworthiness of the offered evid

2000The trial court admitted one hearsay statement by the deceased victim where the statement had been made immediately after concluding a telephone call and where the victim appeared “really scared and jolted.” In contrast, the excluded hearsay statement was made after the victim, returning from his lunch break, “just nonchalantly walked in and was talking to [the witness].” The witness further stated during the defense’s proffer that the declarant “didn’t look afraid or nothing.” Application of the necessity exception requires “a circumstantial guaranty of the trustworthiness of the offered evid

2020The hearsay statute of the old Evidence Code, former OCGA § 24-3-1, provided: (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. 5 had to establish “a necessity for the evidence, a circumstantial guaranty of the statement’s trustworthiness, and that the hearsay statements [were] more probative and revealing than other available evidence.” Mathis v. State, 291 Ga. 268, 270-271 (3) ( 728 SE2d 661 ) (2012) (citat

2020The hearsay statute of the old Evidence Code, former OCGA § 24-3-1, provided: (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. 5 had to establish “a necessity for the evidence, a circumstantial guaranty of the statement’s trustworthiness, and that the hearsay statements [were] more probative and revealing than other available evidence.” Mathis v. State, 291 Ga. 268, 270-271 (3) ( 728 SE2d 661 ) (2012) (citat

1997“The necessity exception usually applies ‘in cases where the witness may not be compelled to testify. . . .’ [Cit.]” Patterson v. State, 202 Ga. App. at 443 (4); see also Luallen v. State, 266 Ga. 174, 178 ( 465 SE2d 672 ) (1996); Roper v. State, 263 Ga. 201, 202 (2) ( 429 SE2d 668 ) (1993); McKissick v. State, 263 Ga. 188,189 (3) ( 429 SE2d 655 ) (1993); Swain v. C & S Bank of Albany, 258 Ga. 547, 549-550 ( 372 SE2d 423 ) (1988); Jackson v. State, 202 Ga. App. 582, 586 (2) ( 414 SE2d 905 ) (1992); Patterson v. State, 202 Ga. App. at 443-444.

1997“The necessity exception usually applies ‘in cases where the witness may not be compelled to testify. . . .’ [Cit.]” Patterson v. State, 202 Ga. App. at 443 (4); see also Luallen v. State, 266 Ga. 174, 178 ( 465 SE2d 672 ) (1996); Roper v. State, 263 Ga. 201, 202 (2) ( 429 SE2d 668 ) (1993); McKissick v. State, 263 Ga. 188,189 (3) ( 429 SE2d 655 ) (1993); Swain v. C & S Bank of Albany, 258 Ga. 547, 549-550 ( 372 SE2d 423 ) (1988); Jackson v. State, 202 Ga. App. 582, 586 (2) ( 414 SE2d 905 ) (1992); Patterson v. State, 202 Ga. App. at 443-444.

2014In order for hearsay to be admitted under the necessity exception, two requirements must be satisfied: “necessity” and “particularized guarantees of trustworthiness.” [Cits.] “Necessity” is demonstrated when the declarant is deceased, when the statement is shown to be relevant to a material fact, and when the statement is more probative of the material fact than other evidence that may be produced and offered. [Cit.] The requirement of “particularized guarantees of trustworthiness” is satisfied when the declaration is coupled with “circumstances which attribute verity to [the declaration].” [C

2014In order for hearsay to be admitted under the necessity exception, two requirements must be satisfied: “necessity” and “particularized guarantees of trustworthiness.” [Cits.] “Necessity” is demonstrated when the declarant is deceased, when the statement is shown to be relevant to a material fact, and when the statement is more probative of the material fact than other evidence that may be produced and offered. [Cit.] The requirement of “particularized guarantees of trustworthiness” is satisfied when the declaration is coupled with “circumstances which attribute verity to [the declaration].” [C

2021See Jennings v. State, 288 Ga. 120, 121-122 (3) ( 702 SE2d 151 ) (2010).7 7 We note that Young’s trial was not governed by Georgia’s current Evidence Code, which took effect on January 1, 2013.

2021See Jennings v. State, 288 Ga. 120, 121-122 (3) ( 702 SE2d 151 ) (2010).7 7 We note that Young’s trial was not governed by Georgia’s current Evidence Code, which took effect on January 1, 2013.

2018Under our old Evidence Code, see former OCGA § 24-3-1 (b), which is applicable to this case, there are three basic requirements for the admission of hearsay under the necessity exception: (1) the declarant of the statement is "unavailable," (2) the declarant's statement "is relevant to a material fact and ... more probative on that material fact than other evidence that may be procured and offered," and (3) the statement exhibits specific indicia of reliability. **620 Mills v. State , 287 Ga. 828 , 831 (3), 700 S.E.2d 544 (2010) (citations omitted).

2018Under our old Evidence Code, see former OCGA § 24-3-1 (b), which is applicable to this case, there are three basic requirements for the admission of hearsay under the necessity exception: (1) the declarant of the statement is "unavailable," (2) the declarant's statement "is relevant to a material fact and ... more probative on that material fact than other evidence that may be procured and offered," and (3) the statement exhibits specific indicia of reliability. **620 Mills v. State , 287 Ga. 828 , 831 (3), 700 S.E.2d 544 (2010) (citations omitted).

2004This Court concludes, based on the totality of the circumstances, that the admission of the hearsay testimony was proper. 2 In order for hearsay to be admitted under the necessity exception, two requirements must be satisfied: “necessity” and “particularized guarantees of trustworthiness.” Azizi v. State, 270 Ga. 709, 711 ( 512 SE2d 622 ) (1999); McKissick v. State, 263 Ga. 188 ( 429 SE2d 655 ) (1993).

2004This Court concludes, based on the totality of the circumstances, that the admission of the hearsay testimony was proper. 2 In order for hearsay to be admitted under the necessity exception, two requirements must be satisfied: “necessity” and “particularized guarantees of trustworthiness.” Azizi v. State, 270 Ga. 709, 711 ( 512 SE2d 622 ) (1999); McKissick v. State, 263 Ga. 188 ( 429 SE2d 655 ) (1993).

1999Cook claimed that Hurt told Agent Mansfield that John Weigand had admitted committing the murders to him, and that Hurt had seen Michele Cartagena’s driver’s license (which was missing from the crime scene) at Weigand’s home. 5 “To qualify as a necessity exception to the hearsay rule, there must be a necessity for the exception and a circumstantial guaranty of the testimony’s trustworthiness.” Perkins v. State, 269 Ga. 791, 795 (4) ( 505 SE2d 16 ) (1998); see also McKissick v. State, 263 Ga. 188, 189 (3) ( 429 SE2d 655 ) (1993).

1999Cook claimed that Hurt told Agent Mansfield that John Weigand had admitted committing the murders to him, and that Hurt had seen Michele Cartagena’s driver’s license (which was missing from the crime scene) at Weigand’s home. 5 “To qualify as a necessity exception to the hearsay rule, there must be a necessity for the exception and a circumstantial guaranty of the testimony’s trustworthiness.” Perkins v. State, 269 Ga. 791, 795 (4) ( 505 SE2d 16 ) (1998); see also McKissick v. State, 263 Ga. 188, 189 (3) ( 429 SE2d 655 ) (1993).

1999In Smith v. State, 266 Ga. 827 (4) ( 470 SE2d 674 ) (1996), we expressly declined to determine whether the inability of law enforcement officers to locate a missing witness made that witness “unavailable” for purposes of the necessity exception to the hearsay rule, and the plurality opinion in the case at bar does not convince me that the exception should be broadened to allow officers to testify to out-of-court statements made by missing witnesses.

1999In Smith v. State, 266 Ga. 827 (4) ( 470 SE2d 674 ) (1996), we expressly declined to determine whether the inability of law enforcement officers to locate a missing witness made that witness “unavailable” for purposes of the necessity exception to the hearsay rule, and the plurality opinion in the case at bar does not convince me that the exception should be broadened to allow officers to testify to out-of-court statements made by missing witnesses.

2013For non-testimonial hearsay evidence to be admissible under the necessity exception, not only must the declarant be unavailable and his statement be relevant to a material fact and be more probative as to that fact than other evidence that may be procured and offered, but the statement also must exhibit “particularized guarantees of trustworthiness.” McNaughton v. State, 290 Ga. 894, 897-898 (3) (b) ( 725 SE2d 590 ) (2012); Evans v. State, 288 Ga. 571, 572 (2) ( 707 SE2d 353 ) (2011).

2013For non-testimonial hearsay evidence to be admissible under the necessity exception, not only must the declarant be unavailable and his statement be relevant to a material fact and be more probative as to that fact than other evidence that may be procured and offered, but the statement also must exhibit “particularized guarantees of trustworthiness.” McNaughton v. State, 290 Ga. 894, 897-898 (3) (b) ( 725 SE2d 590 ) (2012); Evans v. State, 288 Ga. 571, 572 (2) ( 707 SE2d 353 ) (2011).

2005To satisfy the necessity exception, the proponent must show a necessity for the evidence, a circumstantial guaranty of the statement’s trustworthiness, see McPherson v. State, 274 Ga. 444, 450 (10) ( 553 SE2d 569 ) (2001), and that “the hearsay statements are more probative and revealing than other available evidence.” Tuff v. State, 278 Ga. 91, 92-93 (2) ( 597 SE2d 328 ) (2004).

2005To satisfy the necessity exception, the proponent must show a necessity for the evidence, a circumstantial guaranty of the statement’s trustworthiness, see McPherson v. State, 274 Ga. 444, 450 (10) ( 553 SE2d 569 ) (2001), and that “the hearsay statements are more probative and revealing than other available evidence.” Tuff v. State, 278 Ga. 91, 92-93 (2) ( 597 SE2d 328 ) (2004).

2013For non-testimonial hearsay evidence to be admissible under the necessity exception, not only must the declarant be unavailable and his statement be relevant to a material fact and be more probative as to that fact than other evidence that may be procured and offered, but the statement also must exhibit “particularized guarantees of trustworthiness.” McNaughton v. State, 290 Ga. 894, 897-898 (3) (b) ( 725 SE2d 590 ) (2012); Evans v. State, 288 Ga. 571, 572 (2) ( 707 SE2d 353 ) (2011).

2013For non-testimonial hearsay evidence to be admissible under the necessity exception, not only must the declarant be unavailable and his statement be relevant to a material fact and be more probative as to that fact than other evidence that may be procured and offered, but the statement also must exhibit “particularized guarantees of trustworthiness.” McNaughton v. State, 290 Ga. 894, 897-898 (3) (b) ( 725 SE2d 590 ) (2012); Evans v. State, 288 Ga. 571, 572 (2) ( 707 SE2d 353 ) (2011).

2009“The testimony of third parties about prior difficulties between the defendant and the victim may be admitted into evidence under the necessity exception to the hearsay rule if the testimony is necessary *60 and trustworthy” (Allen v. State, 284 Ga. 310 (2) ( 667 SE2d 54 ) (2008)) and “when the statement is more probative of the material fact than other evidence that may be produced and offered.” Turner v. State, 281 Ga. 647, 650 (3) (a) ( 641 SE2d 527 ) (2007).

2009“The testimony of third parties about prior difficulties between the defendant and the victim may be admitted into evidence under the necessity exception to the hearsay rule if the testimony is necessary *60 and trustworthy” (Allen v. State, 284 Ga. 310 (2) ( 667 SE2d 54 ) (2008)) and “when the statement is more probative of the material fact than other evidence that may be produced and offered.” Turner v. State, 281 Ga. 647, 650 (3) (a) ( 641 SE2d 527 ) (2007).

2018"The trial court's determination as to the applicability of the necessity exception should be affirmed absent an abuse of discretion." Rai v. State , 297 Ga. 472 , 477 (2), 775 S.E.2d 129 (2015).

2018"The trial court's determination as to the applicability of the necessity exception should be affirmed absent an abuse of discretion." Rai v. State , 297 Ga. 472 , 477 (2), 775 S.E.2d 129 (2015).

2013Myers v. State, 275 Ga. 709, 712 (2) ( 572 SE2d 606 ) (2002). (a) Eason’s daughter, Teresa Thompson, testified about her mother’s recent request to borrow money and statements that her mother had made concerning her relationship with Bunnell.

2005Whether testimony was accompanied by particular guarantees of trustworthiness is a matter for the trial court’s discretion, and the trial court’s decision will not be disturbed on appeal unless there is an abuse of discretion. [Cit.] The trial court does not abuse its discretion when it uses the necessity exception to admit hearsay testimony that relates an uncontradicted statement made by the unavailable witness to one in whom the declarant placed great confidence and to whom the declarant turned for help with problems. [Cit.] Id. at 712 (2).

2008The trial court admitted the evidence under the necessity exception to the hearsay doctrine. 3 In order for hearsay to be admitted under the necessity exception, two requirements must be satisfied: “necessity’ and “particularized guarantees of trustworthiness.” [Cits.] “Necessity’ is demonstrated when the declarant is deceased, when the statement is shown to be relevant to a material fact, and when the statement is more probative of the material fact than other evidence that may be produced and offered. [Cit.] The requirement of “particularized guarantees of trustworthiness” is satisfied when

2008The trial court admitted the evidence under the necessity exception to the hearsay doctrine. 3 In order for hearsay to be admitted under the necessity exception, two requirements must be satisfied: “necessity’ and “particularized guarantees of trustworthiness.” [Cits.] “Necessity’ is demonstrated when the declarant is deceased, when the statement is shown to be relevant to a material fact, and when the statement is more probative of the material fact than other evidence that may be produced and offered. [Cit.] The requirement of “particularized guarantees of trustworthiness” is satisfied when

2021See also Brown v. State, 278 Ga. 810, 811 (2) ( 607 SE2d 579 ) (2005) (“The first requirement [of the necessity exception] is satisfied [when] the declarant is deceased.”).

2021See also Brown v. State, 278 Ga. 810, 811 (2) ( 607 SE2d 579 ) (2005) (“The first requirement [of the necessity exception] is satisfied [when] the declarant is deceased.”).

2005To satisfy the necessity exception, the proponent must show a necessity for the evidence, a circumstantial guaranty of the statement’s trustworthiness, see McPherson v. State, 274 Ga. 444, 450 (10) ( 553 SE2d 569 ) (2001), and that “the hearsay statements are more probative and revealing than other available evidence.” Tuff v. State, 278 Ga. 91, 92-93 (2) ( 597 SE2d 328 ) (2004).

2005To satisfy the necessity exception, the proponent must show a necessity for the evidence, a circumstantial guaranty of the statement’s trustworthiness, see McPherson v. State, 274 Ga. 444, 450 (10) ( 553 SE2d 569 ) (2001), and that “the hearsay statements are more probative and revealing than other available evidence.” Tuff v. State, 278 Ga. 91, 92-93 (2) ( 597 SE2d 328 ) (2004).

2017Co., 176 Ga.App. 158, 159-160 ( 335 SE2d 408 ) (1985) (the necessity exception applies in landlord-tenant cases, but not when the parties have a business owner-customer relationship).

2017Co., 176 Ga.App. 158, 159-160 ( 335 SE2d 408 ) (1985) (the necessity exception applies in landlord-tenant cases, but not when the parties have a business owner-customer relationship).

2017Under Georgia’s former Evidence Code, “[f]or a statement to be admissible under the necessity exception to the rule against hearsay, its proponent must show a necessity for the evidence, a circumstantial guaranty of the statement’s trustworthiness, and that the hearsay statements are more probative and revealing than other available evidence.” (Citation and punctuation omitted.) Davis v. State, 294 Ga. 486, 487 (2) ( 754 SE2d 67 ) (2014); see former OCGA § 24-3-1 (b).

2017Under Georgia’s former Evidence Code, “[f]or a statement to be admissible under the necessity exception to the rule against hearsay, its proponent must show a necessity for the evidence, a circumstantial guaranty of the statement’s trustworthiness, and that the hearsay statements are more probative and revealing than other available evidence.” (Citation and punctuation omitted.) Davis v. State, 294 Ga. 486, 487 (2) ( 754 SE2d 67 ) (2014); see former OCGA § 24-3-1 (b).

2017Co., 205 Ga. App. 448, 451 (4) ( 422 SE2d 305 ) (1992) (declining to extend the necessity rule to employees of a tenant located in the proprietor’s building); Hart v. Brasstown View Estates, 234 Ga.App. 389, 391 ( 506 SE2d 896 ) (1998) (necessity rule does not apply to innkeeper-guest relationship) (physical precedent only); Grier v. Jeffco Mgmt.

2017Co., 205 Ga. App. 448, 451 (4) ( 422 SE2d 305 ) (1992) (declining to extend the necessity rule to employees of a tenant located in the proprietor’s building); Hart v. Brasstown View Estates, 234 Ga.App. 389, 391 ( 506 SE2d 896 ) (1998) (necessity rule does not apply to innkeeper-guest relationship) (physical precedent only); Grier v. Jeffco Mgmt.

1992The necessity exception usually applies “in cases where the witness may not be compelled to testify, as in the case of a wife who cannot be compelled to testify against her husband.” Glisson v. State, 188 Ga. App. 152, 154 (2) ( 372 SE2d 462 ).

1992The necessity exception usually applies “in cases where the witness may not be compelled to testify, as in the case of a wife who cannot be compelled to testify against her husband.” Glisson v. State, 188 Ga. App. 152, 154 (2) ( 372 SE2d 462 ).

2015See Thomas v. State, 274 Ga. 156 (8) ( 549 SE2d 359 ) 3 The necessity exception is now found at OCGA § 24-8-807. 10 (2001).

2015See Thomas v. State, 274 Ga. 156 (8) ( 549 SE2d 359 ) 3 The necessity exception is now found at OCGA § 24-8-807. 10 (2001).