CopyCited 90 times | Published | Supreme Court of Georgia | Jul 5, 2016 | 788 S.E.2d 433
...discretion to allow the prosecutor to ask a few questions to try to establish the
relevance of the tattoos, although this also risked eliciting improper evidence
and the overruling of the objection should then have been made conditional.
See OCGA §
24-1-104 (b)....
CopyCited 52 times | Published | Supreme Court of Georgia | Feb 19, 2018
...acy included the declarant and the defendant against whom the statement is offered, and the statement was made during the course and in furtherance of the conspiracy. See United States v. Hasner,
340 F.3d 1261, 1274 (11th Cir. 2003)6 ; see also OCGA §
24-1-104 (a) (in determining whether evidence is admissible, courts are to resolve question under preponderance of evidence standard); Davis v....
...The trial court had to make a determination about the admissibility of the evidence before the conclusion of the trial and had to decide the factual question of whether the statements were made during the course of a conspiracy under a preponderance of the evidence standard. See OCGA §
24-1-104 (a) (preliminary questions regarding the admissibility of evidence are to be resolved under a preponderance of the evidence standard)....
CopyCited 49 times | Published | Supreme Court of Georgia | Feb 19, 2018
...against whom the statement
is offered, and the statement was made during the course and in furtherance of
the conspiracy. See United States v. Hasner, 340 F3d 1261, 1274 (11th Cir.
16
2003);6 see also OCGA §
24-1-104 (a) (in determining whether evidence is
admissible, courts are to resolve question under preponderance of evidence
standard); Davis v....
CopyCited 48 times | Published | Supreme Court of Georgia | Jun 29, 2020 | 309 Ga. 295
...“[O]ther acts evidence may be admitted if the court
concludes that the evidence is sufficient for the jury to find by a
preponderance of the evidence that the other act was committed.”
Bradshaw v. State,
296 Ga. 650, 656 n.4 (769 SE2d 892) (2015). See
also OCGA §
24-1-104 (b) (“When the relevancy of evidence depends
upon the fulfillment of a condition of fact, the court shall admit it
upon, or subject to, the introduction of evidence sufficient to support
a finding of the fulfillment of the condition....
CopyCited 27 times | Published | Supreme Court of Georgia | Jun 21, 2021 | 312 Ga. 174
...crime at the time of the prior act, what standard of proof applies,
and upon whom that burden of proof falls. Such preliminary
20
questions concerning the admissibility of evidence, however, are
governed by OCGA §
24-1-104 (“Rule 104”).
Rule 104 provides, in pertinent part:
(a) Preliminary questions concerning the ....
...23
right from wrong, then the court “shall admit” the evidence for the
jury’s consideration “upon, or subject to, the introduction of evidence
sufficient to support a finding of the fulfillment of the condition.”
OCGA §
24-1-104 (b).
Thus, the trial court was not required to conclude that Wilson
had the legal capacity to commit a crime before admitting the
evidence; rather, the function of the trial court was to determine
whether the State had presented...
CopyCited 20 times | Published | Supreme Court of Georgia | Nov 4, 2019
CopyCited 18 times | Published | Supreme Court of Georgia | Jun 20, 2016 | 787 S.E.2d 700
...Zlatogur, 271 F3d 1025, 1028-1029 (11th Cir. 2001); Brittain v. State, 329 Ga.
App. 689, 693-697 (766 SE2d 106) (2014). Because the evidence was sufficient
to satisfy the preponderance of the evidence standard, we find no error. See
generally OCGA §
24-1-104 (a) (“Preliminary questions shall be resolved by a
preponderance of the evidence standard.”)
Relying upon OCGA §
24-8-807, appellant asserts that it was incumbent
upon the trial court to find that the diary entry was more pr...
CopyCited 12 times | Published | Supreme Court of Georgia | Feb 5, 2018
...es of probativeness and
necessity.” Tanner v. State, supra,
301 Ga. at 855. See also Smart v. State,
299 Ga. 414 (3) (788 SE2d 442) (2016). Whether there are exceptional
4
Therefore, we are not invoking plain error review as provided in OCGA §
24-1-104 (d).
8
guarantees of trustworthiness is a determination that focuses on the declarant
and the circumstances under which the declarant made the statement to the
witness....
CopyCited 10 times | Published | Supreme Court of Georgia | Feb 5, 2018
...State, supra,
289 Ga. at 859,
717 S.E.2d 179. Since the instant trial occurred after January 1, 2013, the admission of the evidence must be examined under the new Evidence Code.
Therefore, we are not invoking plain error review as provided in OCGA §
24-1-104 (d).
Thus, appellant's arguments that the statement lacked guarantees of trustworthiness because Skeens had never met appellant, Skeens had not seen appellant on the date of the incident, and Skeens had only spoken briefly to Miranda abo...
CopyCited 9 times | Published | Supreme Court of Georgia | May 18, 2020 | 308 Ga. 797
...proffered testimony regarding Appellant’s alibi if he invoked his
right against self-incrimination when asked about the gun he sold
to Appellant. Gray’s proffered testimony was properly excluded.
(c) Next, Appellant argues that under OCGA §
24-1-104 (a),
the State “should” have filed a pretrial motion for a preliminary
ruling on the admissibility of Gray’s testimony. OCGA §
24-1-104 (a)
lays out the general standard for trial court rulings on
“[p]reliminary questions concerning the qualification of a person to
be a witness, the existence of a privilege, or the admissibility of
evidence[,]” but it does not req...
...motion for rulings on preliminary questions; the only requirement
that may be pertinent here is that hearings on preliminary matters
of this sort “shall be conducted out of the hearing of the jury when
the interests of justice require[.]” OCGA §
24-1-104 (c)....
CopyCited 7 times | Published | Supreme Court of Georgia | Feb 20, 2024
...See Westbrook v. State,
308 Ga. 92, 100-101
(839 SE2d 620) (2020) (rejecting, under plain error review,
argument that audio-recording of jail call was not properly
authenticated where the State presented similar testimony as to the
recording process); OCGA §
24-1-104 (a) (“Preliminary questions
shall be resolved by a preponderance of the evidence standard.”)....
CopyCited 7 times | Published | Supreme Court of Georgia | Feb 20, 2024 | 318 Ga. 639
...259, 266 (2) (b) (818 SE2d 552) (2018)
(there was no clear error, and thus no plain error, where defendant
argued that evidence was inadmissible on a ground that would have
required extension of established precedent).
5. Kirkland also argues that the trial court was required under
OCGA §
24-1-104 (a) and (c) to hold a hearing related to the
admissibility of Ogletree’s statements to Escobar and that the court
erred by failing to do so. We disagree.
“OCGA §
24-1-104 (a) lays out the general standard for trial
court rulings on preliminary questions concerning the qualification
40
of a person to be a witness, the existence of a privilege, or the
admissibility of evidence[.]” Hampton v....
...Escobar’s testimony on that subject was admitted at trial. There is no
indication, however, that Kirkland sought a preliminary ruling on the
admissibility of any other aspect of Escobar’s expected testimony, which, of
course, he would have been authorized to do pursuant to OCGA §
24-1-104 (a).
41
instruction stating that other-act evidence could be used to attack
Ogletree’s credibility and nothing else....
CopyCited 6 times | Published | Supreme Court of Georgia | Apr 16, 2018
...and (3) that the wrongdoing did procure the unavailability.
United States v. Scott, 284 F3d 758, 762 (7th Cir. 2002). In this case, all three
factors were shown by a preponderance of the evidence. First, Hendrix sent
4
See also OCGA §
24-1-104 (a) (“Preliminary questions concerning ....
CopyCited 5 times | Published | Supreme Court of Georgia | Apr 16, 2018
CopyCited 4 times | Published | Supreme Court of Georgia | Mar 5, 2018
...standard, a trial court does not abuse its discretion in allowing the unavailable
victim’s statements to be admissible at trial against the party who caused the
victim’s absence. See Hickman v. State,
299 Ga. 267 (4) (787 SE2d 700)
(2016). See also OCGA §
24-1-104 (a) (“Preliminary questions concerning ....
CopyCited 4 times | Published | Supreme Court of Georgia | Mar 5, 2018
...ard, a trial court does not abuse its discretion in allowing the unavailable victim's statements to be admissible at trial against the party who caused the victim's absence. See Hickman v. State,
299 Ga. 267 (4),
787 S.E.2d 700 (2016). See also OCGA §
24-1-104 (a) ("Preliminary questions concerning ......
CopyCited 3 times | Published | Supreme Court of Georgia | Mar 4, 2025
...siloed context of its analysis to the fact that this enumeration was
chronologically the last one to be addressed. The record reflects that the CVS
evidence was generally admitted by the trial court for any purpose, rather than
on a limited basis, see OCGA §§
24-1-104 and
24-1-105, and that the only
request to limit the admissibility of the CVS evidence was from the State and
later withdrawn....
CopyCited 2 times | Published | Supreme Court of Georgia | Sep 17, 2024 | 319 Ga. 803
...ger
applies, the trial court still has a gatekeeping role under the 2013
Evidence Code in addressing preliminary questions about what
evidence reaches the jury. See Wilson v. State,
312 Ga. 174, 184 (1)
(c) (860 SE2d 485) (2021) (discussing OCGA §
24-1-104 (“Rule 104”)).
A fundamental question is relevancy, because relevant evidence is
admissible, unless a specific exception applies, and irrelevant
evidence is inadmissible....
Published | Supreme Court of Georgia | Feb 20, 2024 | 319 Ga. 803
...See Westbrook v. State,
308 Ga. 92, 100-101
(839 SE2d 620) (2020) (rejecting, under plain error review,
argument that audio recording of jail call was not properly
authenticated where the State presented similar testimony as to the
recording process); OCGA §
24-1-104 (a) (“Preliminary questions
shall be resolved by a preponderance of the evidence standard.”)....
CopyPublished | Supreme Court of Georgia | Jun 16, 2020 | 309 Ga. 95
...§
24-8-804 (b) (1) was an abuse of discretion.6 We disagree.
Other than the rules of privilege, the usual rules of evidence do
not apply to the resolution of “[p]reliminary questions
concerning . . . the admissibility of evidence[.]” OCGA §
24-1-104 (a).
See also OCGA §
24-1-2 (c) (1) (“The rules of evidence, except those
with respect to privileges, shall not apply [to] ....
...had an opportunity and similar motive to develop the testimony by
direct, cross, or redirect examination.”
6 We note that Scott does not claim that the substance of the evidence
about the Screven County robbery was inadmissible under OCGA §
24-4-404
(b).
issue is to be determined by the court under [OCGA §]
24-1-104[.]”).
Whether the Screven County victim was unavailable presented a
question of fact to be determined by the trial court as preliminary to
the admissibility of her prior testimony under OCGA §
24-8-804 (b)
(1), and there was no error in its consideration of the physician’s
letter in resolving that question....
...The prosecuting attorney represented to the trial court that he had
verified with the office of the physician that the letter was authentic,
and more importantly, Scott’s lawyer represented to the trial court
7 The relevant provisions of OCGA §§
24-1-2 (c) (1) and
24-1-104 (a) are
derived from (and closely resemble) Federal Rule of Evidence 104 (a)....
