residual hearsay exception in Georgia

2026This Court reviews a trial court’s Rule 807 admis- sibility ruling for an abuse of discretion, and we are “‘particularly hesitant to overturn a trial court’s admissibility ruling under the residual hearsay exception absent a definite and firm conviction 4 Before that ruling, Snow’s trial counsel had also asked for another continuance, this time to speak with a friend of Snow and Allen about Agee’s allegations, but after ruling that Agee’s testimony was admissible under Rule 807, the trial court also denied trial counsel’s newest continuance request be- cause counsel now had the medical records

2021We disagree. 31 We first note that the General Assembly designed the residual hearsay exception embodied in Rule 807 “‘to be used very rarely, and only in exceptional circumstances.’” Jacobs, 303 Ga. at 249 (2) (quoting Rivers v. United States, 777 F3d 1306, 1312 (II) (11th Cir. 2015)).

2026This Court reviews a trial court’s Rule 807 admis- sibility ruling for an abuse of discretion, and we are “‘particularly hesitant to overturn a trial court’s admissibility ruling under the residual hearsay exception absent a definite and firm conviction 4 Before that ruling, Snow’s trial counsel had also asked for another continuance, this time to speak with a friend of Snow and Allen about Agee’s allegations, but after ruling that Agee’s testimony was admissible under Rule 807, the trial court also denied trial counsel’s newest continuance request be- cause counsel now had the medical records

2025And “we are particularly hesitant to 5 overturn a trial court’s admissibility ruling under the residual hearsay exception absent a definite and firm conviction that the court made a clear error of judgment in the conclusion it reached based upon a weighing of the relevant factors.” Thompson v. State, 302 Ga. 533, 544 (2017) (cleaned up).

2021The above factors support the trial court’s conclusion, and we are “particularly hesitant to overturn a trial court’s admissibility ruling under the residual hearsay exception absent a definite and firm conviction that the court made a clear error of judgment in the conclusion it reached based upon a weighing of the relevant factors.” Davenport v. State, 309 Ga. 385, 390 (3) (846 SE2d 83) (2020) (citation and punctuation omitted).

2021The above factors support the trial court’s conclusion, and we are “particularly hesitant to overturn a trial court’s admissibility ruling under the residual hearsay exception absent a definite and firm conviction that the court made a clear error of judgment in the conclusion it reached based upon a weighing of the relevant factors.” Davenport v. State, 309 Ga. 385, 390 (3) (846 SE2d 83) (2020) (citation and punctuation omitted).

2026We are “particularly hesitant to overturn a trial court’s admissibility ruling under the residual hearsay exception absent a definite and firm conviction that the court made a clear error of judgment in the conclusion it reached based upon a weighing of the relevant factors.” State v. Holmes, 304 Ga. 524, 529 (2018).

2022But we note that “[t]his Court is particularly hesitant to overturn a trial court’s admissibility ruling under the residual hearsay exception absent a definite and firm conviction that the court made a clear error of judgment in the conclusion it reached based upon a weighing of the relevant factors.” Id. (citation and punctuation omitted). (a) The six witnesses about whom Appellant complains gave the following testimony at trial. 7 Appellant also raises a claim of ineffective assistance of counsel based on this objection, as discussed in Division 4 (a) below. 10 First, Rodney Rivers testified

2019In Jacobs , we explained that statements admitted pursuant to the residual hearsay exception are "considered sufficiently trustworthy not because of the credibility of the witness reporting them in court, but because of the circumstances under which they were originally made ." (Emphasis supplied.) Id. at 249 (2), 811 S.E.2d 372 (citing Smart v. State , 299 Ga. 414 , 421-422 (3), 788 S.E.2d 442 (2016) ).

2019In Jacobs , we explained that statements admitted pursuant to the residual hearsay exception are "considered sufficiently trustworthy not because of the credibility of the witness reporting them in court, but because of the circumstances under which they were originally made ." (Emphasis supplied.) Id. at 249 (2), 811 S.E.2d 372 (citing Smart v. State , 299 Ga. 414 , 421-422 (3), 788 S.E.2d 442 (2016) ).

2022We have previously upheld the introduction of out of court statements under the residual hearsay exception where the trial court determined that the statements were trustworthy because of the unavailable declarant’s “close relationship” with the witness, see Rawls v. State, 310 Ga. 209, 214- 215 (3) (a) (i) (850 SE2d 90) (2020), because the unavailable declarant had “no reason to concoct . . . a story,” see Tyner v. State, 305 Ga. 326, 330 (2) (825 SE2d 129) (2019), and because the unavailable declarant made consistent statements to multiple witnesses, see Lopez v. State, 311 Ga. 269, 274 (2)

2022We have previously upheld the introduction of out of court statements under the residual hearsay exception where the trial court determined that the statements were trustworthy because of the unavailable declarant’s “close relationship” with the witness, see Rawls v. State, 310 Ga. 209, 214- 215 (3) (a) (i) (850 SE2d 90) (2020), because the unavailable declarant had “no reason to concoct . . . a story,” see Tyner v. State, 305 Ga. 326, 330 (2) (825 SE2d 129) (2019), and because the unavailable declarant made consistent statements to multiple witnesses, see Lopez v. State, 311 Ga. 269, 274 (2)

2022We have previously upheld the introduction of out of court statements under the residual hearsay exception where the trial court determined that the statements were trustworthy because of the unavailable declarant’s “close relationship” with the witness, see Rawls v. State, 310 Ga. 209, 214- 215 (3) (a) (i) (850 SE2d 90) (2020), because the unavailable declarant had “no reason to concoct . . . a story,” see Tyner v. State, 305 Ga. 326, 330 (2) (825 SE2d 129) (2019), and because the unavailable declarant made consistent statements to multiple witnesses, see Lopez v. State, 311 Ga. 269, 274 (2)

2022We have previously upheld the introduction of out of court statements under the residual hearsay exception where the trial court determined that the statements were trustworthy because of the unavailable declarant’s “close relationship” with the witness, see Rawls v. State, 310 Ga. 209 , 214- 215 (3) (a) (i) ( 850 SE2d 90 ) (2020), because the unavailable declarant had “no reason to concoct . . . a story,” see Tyner v. State, 305 Ga. 326, 330 (2) ( 825 SE2d 129 ) (2019), and because the unavailable declarant made consistent statements to multiple witnesses, see Lopez v. State, 311 Ga. 269, 274

2021We disagree. 31 We first note that the General Assembly designed the residual hearsay exception embodied in Rule 807 “‘to be used very rarely, and only in exceptional circumstances.’” Jacobs, 303 Ga. at 249 (2) (quoting Rivers v. United States, 777 F3d 1306, 1312 (II) (11th Cir. 2015)).

2021We first note that the General Assembly designed the residual hearsay exception embodied in Rule 807 “‘to be used very rarely, and only in exceptional circumstances.’” Jacobs, 303 Ga. at 249 (2) (quoting Rivers v. United States, 777 F3d 1306, 1312 (II) (11th Cir. 2015)).

2026See State v. Hamilton, 308 Ga. 116, 126 (4)(b) ( 839 SE2d 560 ) 9 (2020) (“[A]vailability re-enters the analysis of whether or not to admit statements into evidence because of the requirement that the proponent use reasonable efforts to procure the most probative evidence on the points sought to be proved.”) (citation modified).

2026See State v. Hamilton, 308 Ga. 116, 126 (4)(b) ( 839 SE2d 560 ) 9 (2020) (“[A]vailability re-enters the analysis of whether or not to admit statements into evidence because of the requirement that the proponent use reasonable efforts to procure the most probative evidence on the points sought to be proved.”) (citation modified).

2022We have previously upheld the introduction of out of court statements under the residual hearsay exception where the trial court determined that the statements were trustworthy because of the unavailable declarant’s “close relationship” with the witness, see Rawls v. State, 310 Ga. 209, 214- 215 (3) (a) (i) (850 SE2d 90) (2020), because the unavailable declarant had “no reason to concoct . . . a story,” see Tyner v. State, 305 Ga. 326, 330 (2) (825 SE2d 129) (2019), and because the unavailable declarant made consistent statements to multiple witnesses, see Lopez v. State, 311 Ga. 269, 274 (2)

2022We have previously upheld the introduction of out of court statements under the residual hearsay exception where the trial court determined that the statements were trustworthy because of the unavailable declarant’s “close relationship” with the witness, see Rawls v. State, 310 Ga. 209 , 214- 215 (3) (a) (i) ( 850 SE2d 90 ) (2020), because the unavailable declarant had “no reason to concoct . . . a story,” see Tyner v. State, 305 Ga. 326, 330 (2) ( 825 SE2d 129 ) (2019), and because the unavailable declarant made consistent statements to multiple witnesses, see Lopez v. State, 311 Ga. 269, 274

2019In Jacobs , we explained that statements admitted pursuant to the residual hearsay exception are "considered sufficiently trustworthy not because of the credibility of the witness reporting them in court, but because of the circumstances under which they were originally made ." (Emphasis supplied.) Id. at 249 (2), 811 S.E.2d 372 (citing Smart v. State , 299 Ga. 414 , 421-422 (3), 788 S.E.2d 442 (2016) ).

2018See Jacobs v. State , supra, 303 Ga. at 249 (2), 811 S.E.2d 372 .

2025“A trial court should consider the totality of the circumstances in determining whether to admit evidence pursuant to OCGA § 24-8-807.” Reyes v. State, 309 Ga. 660, 668 (2) (b) ( 847 SE2d 194 ) (2020).

2025“A trial court should consider the totality of the circumstances in determining whether to admit evidence pursuant to OCGA § 24-8-807.” Reyes v. State, 309 Ga. 660, 668 (2) (b) ( 847 SE2d 194 ) (2020).

2025See, e.g., Kirkland v. State, 318 Ga. 639, 655 (2024) (no clear and obvious error to admit un-objected-to hearsay because the jury was properly instructed that they could consider the hearsay state- ment only against the declarant); Merritt v. State, 311 Ga. 875, 887 (2021) (no clear and obvious error to admit un-objected-to hearsay because the trial court could conclude that the statements had suf- ficient guarantees of trustworthiness to satisfy the residual hearsay exception under OCGA § 24-8-807); Varner v. State, 306 Ga. 726 , 731–32 (2019) (no clear and obvious error to admit un-objected

2025See, e.g., Kirkland v. State, 318 Ga. 639, 655 (2024) (no clear and obvious error to admit un-objected-to hearsay because the jury was properly instructed that they could consider the hearsay state- ment only against the declarant); Merritt v. State, 311 Ga. 875, 887 (2021) (no clear and obvious error to admit un-objected-to hearsay because the trial court could conclude that the statements had suf- ficient guarantees of trustworthiness to satisfy the residual hearsay exception under OCGA § 24-8-807); Varner v. State, 306 Ga. 726 , 731–32 (2019) (no clear and obvious error to admit un-objected

2023See Atkins v. State, 310 Ga. 246, 249-252 (2) (850 SE2d 103) (2020) (considering on appeal whether the trial court had abused its discretion in concluding that hearsay statements were inadmissible under both the excited-utterance exception and the residual-hearsay exception, where the defendant had argued both exceptions “[i]n the alternative”). 15 impressions and excited utterances are properly before this Court.

2023See Atkins v. State, 310 Ga. 246, 249-252 (2) (850 SE2d 103) (2020) (considering on appeal whether the trial court had abused its discretion in concluding that hearsay statements were inadmissible under both the excited-utterance exception and the residual-hearsay exception, where the defendant had argued both exceptions “[i]n the alternative”). 15 impressions and excited utterances are properly before this Court.

2022We have previously upheld the introduction of out of court statements under the residual hearsay exception where the trial court determined that the statements were trustworthy because of the unavailable declarant’s “close relationship” with the witness, see Rawls v. State, 310 Ga. 209, 214- 215 (3) (a) (i) (850 SE2d 90) (2020), because the unavailable declarant had “no reason to concoct . . . a story,” see Tyner v. State, 305 Ga. 326, 330 (2) (825 SE2d 129) (2019), and because the unavailable declarant made consistent statements to multiple witnesses, see Lopez v. State, 311 Ga. 269, 274 (2)

2022We have previously upheld the introduction of out of court statements under the residual hearsay exception where the trial court determined that the statements were trustworthy because of the unavailable declarant’s “close relationship” with the witness, see Rawls v. State, 310 Ga. 209, 214- 215 (3) (a) (i) (850 SE2d 90) (2020), because the unavailable declarant had “no reason to concoct . . . a story,” see Tyner v. State, 305 Ga. 326, 330 (2) (825 SE2d 129) (2019), and because the unavailable declarant made consistent statements to multiple witnesses, see Lopez v. State, 311 Ga. 269, 274 (2)

2021See Wilson v. State, 301 Ga. 83, 89 (2) (799 SE2d 757) (2017) (statements against interest generally have a sufficient guarantee 20 of trustworthiness to be admissible under Rule 807).

2021See Wilson v. State, 301 Ga. 83, 89 (2) (799 SE2d 757) (2017) (statements against interest generally have a sufficient guarantee 20 of trustworthiness to be admissible under Rule 807).

2021We disagree. (a) In ruling upon Ash’s residual hearsay claim in his motion for new trial, the trial court referred to this Court’s decision in Griffin v. State, 280 Ga. 683, 684 (631 SE2d 671) (2006), which the trial court noted applied the “necessity” exception to the hearsay rule set forth in former OCGA § 24-3-1 (b).

2021We disagree. (a) In ruling upon Ash’s residual hearsay claim in his motion for new trial, the trial court referred to this Court’s decision in Griffin v. State, 280 Ga. 683, 684 (631 SE2d 671) (2006), which the trial court noted applied the “necessity” exception to the hearsay rule set forth in former OCGA § 24-3-1 (b).

2020Miller & Jeffrey Bellin, Federal Practice and Procedure § 7063 (2018 ed.) (citation and punctuation omitted) — the trial court focused its Rule 807 analysis on the probativeness of the prior transcripts relative to whether Hamilton could “offer[ ] any other evidence which” she could “produce through 25 reasonable efforts.” And under the unique circumstances presented in this case, we conclude that the trial court did not abuse its discretion when it concluded that it would be “unreasonable” for Hamilton to “subpoena each of” the “nearly thirty witnesses that testified at [her] trial . . . and

2020“Whether there are exceptional guarantees of trustworthiness is a determination that focuses on the declarant and the circumstances under which the declarant made the statement to the witness.” (Emphasis in original.) Miller v. State, 303 Ga. 1, 5 (2) ( 810 SE2d 123 ) (2018).

2020The trial court sustained the State’s objection to Williams’s statements, based on the lack of evidence about the amount of time that elapsed between the shooting and the statements, which it deemed “a critical component” of the excited utterance exception, and on the lack of “exceptional guarantees of trustworthiness” that are required under the residual hearsay exception. “[A] trial court’s decision whether to admit or exclude evidence will not be disturbed on appeal absent an abuse of discretion.” Lyons v. State, 309 Ga. 15, 21 (4) ( 843 SE2d 825 ) (2020).

2020The trial court sustained the State’s objection to Williams’s statements, based on the lack of evidence about the amount of time that elapsed between the shooting and the statements, which it deemed “a critical component” of the excited utterance exception, and on the lack of “exceptional guarantees of trustworthiness” that are required under the residual hearsay exception. “[A] trial court’s decision whether to admit or exclude evidence will not be disturbed on appeal absent an abuse of discretion.” Lyons v. State, 309 Ga. 15, 21 (4) ( 843 SE2d 825 ) (2020).

2020The residual hearsay exception is “to be used very rarely and only in exceptional circumstances, and only when there exists certain exceptional guarantees of trustworthiness and high degrees of probativeness and necessity.” Tanner v. State, 301 Ga. 852, 855 (1) ( 804 SE2d 377 ) (2017).

2020The residual hearsay exception is “to be used very rarely and only in exceptional circumstances, and only when there exists certain exceptional guarantees of trustworthiness and high degrees of probativeness and necessity.” Tanner v. State, 301 Ga. 852, 855 (1) ( 804 SE2d 377 ) (2017).