O.C.G.A. § 24-4-402 (2019)

Annotations

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 follow-

ing 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). For article, “An Overview of Ultimate Issue Evidence,” see 25 Ga. St. B.J. 19 (June 2020).

JUDICIAL DECISIONS ANALYSIS GENERAL CONSIDERATION IRRELEVANT EVIDENCE IN CIVIL CASES

IRRELEVANT EVIDENCE IN CRIMINAL CASES 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 Ga. App. LEXIS 730 (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 Ga. LEXIS 661 (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 Ga. App. LEXIS 611 (2019), cert. denied, No. S20C0600, 2020 Ga. LEXIS 562 (Ga. July 15, 2020), aff’d, 311 Ga. 170, 856 S.E.2d 267, 2021 Ga. LEXIS 85 (2021). 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 Ga. App. LEXIS 833 (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 Ga. LEXIS 573 (1939) (decided under former Code 1933, § 38-201); Henderson v. State, 153 Ga. App. 801, 266 S.E.2d 522, 1980 Ga. App. LEXIS 1987 (1980) (decided under former Code 1933, § 38-201). 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 Ga. App. LEXIS 99 (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 Ga. App. LEXIS 99 (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 Ga. LEXIS 132 (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 Ga. App.

LEXIS 2522 (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 Ga. App. LEXIS 2843 (1981) (decided under former Code 1933, § 38-201). Probative value of jail phone call not outweighed by prejudicial effect. - 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 Ga. LEXIS 977 (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 Ga. App. LEXIS 90 (2019), cert. denied, No. S19C0930, 2019 Ga. LEXIS 780 (Ga. Nov. 4, 2019). Lottery ticket investigator’s statement was relevant. - In a dispute over a $1 million lottery ticket, an investiga-

tor’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 Ga. App. LEXIS 287 (2019), cert. denied, No. S19C1350, 2020 Ga. LEXIS 19 (Ga. Jan. 13, 2020). Irrelevant Evidence in Civil Cases Evidence not relevant. - See Atlantic Coca-Cola Bottling Co. v. Shipp, 170 Ga. 817, 154 S.E. 243, 1930 Ga. LEXIS 247 (1930) (race) (decided under former Civil Code 1910, § 5744); Gaskill v. Brown, 103 Ga. App. 33, 118 S.E.2d 113, 1961 Ga. App. LEXIS 847 (1961) (promissory note) (decided under former Code 1933, § 38-201); Taylor v. Marsh, 107 Ga. App. 575, 130 S.E.2d 770, 1963 Ga. App. LEXIS 912 (1963) (accident) (decided under former Code 1933, § 38-201); DeFreese v. Beasley, 114 Ga. App. 832, 152 S.E.2d 772, 1966 Ga. App. LEXIS 928 (1966) (improperly dispensing dangerous drugs) (decided under former Code 1933, § 38-201); Schaefer v. Mayor of Athens, 120 Ga. App. 301, 170 S.E.2d 339, 1969 Ga. App. LEXIS 751 (1969) (accident) (decided under former Code 1933, § 38-201); Butler v. Garrison, 123 Ga. App. 645, 182 S.E.2d 185, 1971 Ga. App. LEXIS 1330 (1971) (materialman’s dealing with contractor unrelated to case) (decided under former Code 1933, § 38-201); Lane v. Morrison, 124 Ga. App. 316, 183 S.E.2d 533, 1971 Ga. App. LEXIS 910 (1971) (documentary evidence) (decided under former Code 1933, § 38-201); City Council v. Lee, 153 Ga. App. 94, 264 S.E.2d 683, 1980 Ga. App. LEXIS 1692 (1980) (tort action) (decided under former Code 1933, § 38-201); Ideal Pool Corp. v. Champion, 157 Ga. App. 380, 277 S.E.2d 753, 1981 Ga. App. LEXIS 1828 (1981) (insurance) (decided under former Code 1933, § 38-201); Auto Rental & Leasing, Inc. v. Blizzard, 159 Ga. App. 533, 284 S.E.2d 47, 1981 Ga. App. LEXIS 2684 (1981) (net worth) (decided under former Code 1933, § 38-201); Wyatt

Irrelevant Evidence in Civil Cases (Cont’d)

Irrelevant Evidence in Criminal Cases

v. State, 179 Ga. App. 327, 346 S.E.2d 387, 1986 Ga. App. LEXIS 1891 (1986) (nonsuspension of driver’s license in DUI case) (decided under former O.C.G.A. § 24-2-1); Craig v. State, 205 Ga. App. 691, 423 S.E.2d 417, 1992 Ga. App. LEXIS 1297 (1992) (driving under the influence of alcohol) (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 Ga. App. LEXIS 117 (2009) (decided under former O.C.G.A. § 24-2-1). Evidence concerning helmet use by rider of motorized skateboard. - In a suit arising from a college student riding a motorized skateboard colliding with a cyclist, getting hurt, and suing the cyclist, the trial court erred by excluding evidence that the skateboarder was not wearing a helmet at the time of the collision as the statutes relied upon by the trial court regulated only bicycles and electric bicycles and did not apply in any way to motorized skateboards. Stockert v. Rogers, 361 Ga. App. 276, 864 S.E.2d 116, 2021 Ga. App. LEXIS 472 (2021). 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 Ga. App. LEXIS 409 (2013).

Evidence not relevant. - See Walker v. State, 86 Ga. App. 875, 72 S.E.2d 774, 1952 Ga. App. LEXIS 1088 (1952) (hog stealing) (decided under former Code 1933, § 38-201); Davis v. State, 115 Ga. App. 338, 154 S.E.2d 462, 1967 Ga. App. LEXIS 1101 (1967) (peeping Tom) (decided under former Code 1933, § 38-201); Brown v. State, 118 Ga. App. 617, 165 S.E.2d 185, 1968 Ga. App. LEXIS 1479 (1968) (use of dynamite) (decided under former Code 1933, § 38-201); Dawson v. State, 120 Ga. App. 242, 170 S.E.2d 45, 1969 Ga. App. LEXIS 725 (1969) (burglary) (decided under former Code 1933, § 38-201); Mikle v. State, 236 Ga. 748, 225 S.E.2d 275, 1976 Ga. LEXIS 1014 (1976) (prior criminal record) (decided under former Code 1933, § 38-201); Strickland v. State, 247 Ga. 219, 275 S.E.2d 29, 1981 Ga. LEXIS 629, cert. denied, 454 U.S. 882, 102 S. Ct. 365, 70 L. Ed. 2d 192 (1981) (murder) (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 Ga. App. LEXIS 871 (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 Ga. App. LEXIS 904 (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 evi-

dence 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 Ga. LEXIS 109 (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 Ga. LEXIS 347 (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 (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 Ga. App. LEXIS 1465 (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 Ga. App. LEXIS 263 (2003), cert. denied, No. S03C1022, 2003 Ga. LEXIS 682 (Ga. July 14, 2003) (decided under former O.C.G.A. § 24-2-1). Images of child pornography. - Trial court did not err in limiting the defendant’s cross-examination of the codefendant 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 Ga. App. LEXIS 69 (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 Ga. App. LEXIS 801 (2003), cert. denied, No. S03C1574, 2003 Ga. LEXIS 913 (Ga. Oct. 20, 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 Ga. LEXIS 999 (2004), overruled on other

Irrelevant Evidence in Criminal Cases (Cont’d) grounds, State v. Lane, 308 Ga. 10, 838 S.E.2d 808, 2020 Ga. LEXIS 98 (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 Ga. LEXIS 999 (2004), overruled on other grounds, State v. Lane, 308 Ga. 10, 838 S.E.2d 808, 2020 Ga. LEXIS 98 (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, 2005 Ga. LEXIS 123 (2005), cert. denied, 546 U.S. 987, 126 S. Ct. 571, 163 L. Ed. 2d 478, 2005 U.S. LEXIS 8017 (2005), superseded by statute as stated in Williams v. Harvey, 311 Ga. 439, 858 S.E.2d 479, 2021 Ga. LEXIS 256 (2021) (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 Ga. App. LEXIS 18 (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 Ga. App. LEXIS 972 (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 Ga. App. LEXIS 1225 (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 Ga. App. LEXIS 37 (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 Ga. App. LEXIS 1181 (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 Ga. LEXIS 449 (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.

Admissibility of rap lyrics or videos in criminal prosecutions, 43 A.L.R.7th Art. 1. Use of tweets as evidence in civil and criminal trials, 25 A.L.R. Fed.3d 5.