O.C.G.A. § 24-7-704 (2019)

Annotations

Cross references. Opinion on an ultimate issue, Fed. R. Evid. 704.

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

JUDICIAL DECISIONS Testimony regarding whether injuries were accidental admissible. - In the defendants’ murder trial in which the defendants claimed a shooting was accidental as the parties struggled, because the medical examiner’s testimony that the victim’s injuries were inconsistent with an accidental shooting did not opine as to the defendants’ mental intent for any crime or defense, there was no violation of O.C.G.A. § 24-7-704, and because the examiner’s opinion was based on the examiner’s specialized knowledge and training, O.C.G.A. § 24-7-707, any objection would have been meritless. Eller v. State, 303 Ga. 373, 811 S.E.2d 299, 2018 Ga. LEXIS 130 (2018), overruled in part, Lester v. State, 310 Ga. 81, 849 S.E.2d 425, 2020 Ga. LEXIS 738 (2020) (decided under former O.C.G.A. § 24-7-707). Officer’s testimony about field sobriety tests. - Trial counsel was not ineffective in failing to object to testimony of the officer about field sobriety tests that allegedly went to the ultimate issue and invaded the province of the jury because the defendant could not show the outcome would have been different had counsel objected since the evidence of guilt was strong, the officer did not misstate the law, and the jurors were properly instructed on what evidence they could consider. Swanson v. State, 366 Ga. App. 584, 884 S.E.2d 1, 2023 Ga. App. LEXIS 46 (2023). Lay testimony on ultimate issue grounds no longer generally prohibited. - There was no error in the trial court’s admission of the complained-of statement of one of the female accomplice’s recorded interview with the police

because the officer’s statement regarding a party to a crime did not constitute ultimate issue opinion testimony; and, even if the statement did, the current Evidence Code - unlike the former Code - did not generally prohibit lay witness testimony on ultimate issue grounds. Butler v. State, 310 Ga. 892, 855 S.E.2d 551, 2021 Ga. LEXIS 75 (2021). Lay witnesses’ testimony that defendant had murdered victims. - At the defendant’s murder trial, the witnesses’ opinion testimony that the defendant killed the victims was rationally based on the witnesses’ perception and helpful to understanding the witnesses’ testimony and, therefore, admissible under O.C.G.A. § 24-7-701; even if the witnesses’ opinion addressed an ultimate issue, the testimony was not objectionable under O.C.G.A. § 24-7-704(a). One witness saw the defendant with the victims shortly before the victims were killed, and the defendant told the other that the defendant had “offed them boys.” Grier v. State, 305 Ga. 882, 828 S.E.2d 304, 2019 Ga. LEXIS 324 (2019). Lay testimony on why defendant’s charges upgraded. - To the extent the trial court concluded that the investigator’s testimony was proper lay testimony because it was based on personal knowledge about why the defendant’s charges were upgraded, the Georgia Supreme Court saw no abuse of discretion in the trial court denying the defendant’s motion for mistrial on that basis. Taylor v. State, 315 Ga. 630, 884 S.E.2d 346, 2023 Ga. LEXIS 42 (2023). Testimony on nature of victim’s injuries. - Although the defendant argued

that the testimonies of the experts at a minimum injected the impermissible inference that the defendant caused the 18-month-old child’s injuries intentionally, that was simply not the case because the expert’s testimony concerned the nature of the injuries inflicted on the victim, not the mental state of the defendant; whether the accused committed an intentional act to harm the victim is a different question than whether someone likely committed an intentional act to harm the victim. Wade v. State, 304 Ga. 5, 815 S.E.2d 875, 2018 Ga. LEXIS 445 (2018). Fire marshall’s testimony regarding arson. - After being qualified as an expert witness, the fire marshal’s testimony that the fire at the victims’ residence was intentionally set did not invade the province of the jury in deciding whether the defendant had committed arson because the testimony did not address other elements of the crime of arson or directly implicate the defendant as the perpetrator of that crime; and the conclusion that the fire was intentionally set was not one jurors would ordinarily be able to draw for themselves. Saffold v. State, 298 Ga. 643, 784 S.E.2d 365, 2016 Ga. LEXIS 236 (2016). Detective’s testimony regarding venue and shooting. - Detective’s answers to the defendant’s questions regarding the surveillance recording of the shooting did not violate the ultimate issue rule, and the defendant could not show harm because evidence of the defendant’s guilt was compelling; and the defendant could not show that the complained-of comments likely affected the outcome of the defendant’s trial as, although it might have been improper for the detective to share the detective’s subjective belief that the defendant was the shooter seen on the surveillance recording with the jury explicitly, that the detective believed the defendant was the shooter seen on the surveillance recording would have come as no surprise to the jury. Thompson v. State, 304 Ga. 146, 816 S.E.2d 646, 2018 Ga. LEXIS 459 (2018). Detective testifying as lay witness. - Even though a detective’s comments during a video interview touched on the ultimate issues of the case, whether the

shooting was an accident, the trial court did not err in refusing to redact the comments because O.C.G.A. § 24-7-704(a) did not bar the admission of the comments even if the comments touched on the ultimate issue because the detective was testifying as a lay witness. Mack v. State, 306 Ga. 607, 832 S.E.2d 415, 2019 Ga. LEXIS 518 (2019). Trial court did not commit plain error in allowing a police officer to testify that the shooting of the victim was not in selfdefense because the officer testified as a lay witness rather than an expert and could draw on his professional experiences to guide his opinion without being treated as an expert. Taylor v. State, 365 Ga. App. 30, 877 S.E.2d 286, 2022 Ga. App. LEXIS 374 (2022). Detective’s testimony that witness was not an accomplice. - Trial court did not err by allowing a detective to testify that the witness was not an accomplice to the crime because O.C.G.A. § 247-704 abolished the prohibition on lay opinion testimony concerning the ultimate issue in a case. Fisher v. State, 309 Ga. 814, 848 S.E.2d 434, 2020 Ga. LEXIS 604 (2020). Expert testimony on malingering during police interview did not go to ultimate issue. - Trial court did not err by allowing the state’s expert to testify that the defendant was malingering during the defendant’s police interview and that the defendant’s relationship with the victim was mutually abusive and dysfunctional because it was not impermissible state of mind testimony going to the ultimate issue, as the testimony did not implicate the defendant’s mental state at the time the defendant used the knife against the victim. McCalop v. State, No. S23A0210, 2023 Ga. LEXIS 84 (Ga. May 2, 2023). Psychologist opinion testimony on ultimate issue properly admitted. - In a case terminating the mother’s parental rights, the clinical psychologist’s testimony regarding the psychologist’s bonding evaluation on the child was properly admitted because the psychologist, who was tendered as an expert on child psychology and attachment and bonding without objection, explained that the psy-

chologist formed the psychologist’s opinions based on an interview, observation, and testing; the psychologist testified that the methods the psychologist used and the information the psychologist gathered were of the type regularly used by others in the psychologist’s profession; and the psychologist’s opinion was not objectionable on the grounds that the opinion embraced an ultimate issue to be decided by the trier of fact. In the Interest of R. S. T., 345 Ga. App. 300, 812 S.E.2d 614, 2018 Ga. App. LEXIS 208 (2018). Psychologist’s opinion testimony on defendant’s past sanity properly excluded. - Any error in the exclusion of a psychologist’s statement of opinion was not error because any error was harmless and would not warrant reversal as the psychologist’s statement was from two years prior to the commission of the murders of the defendant’s two infant daughters; and it was a statement of opinion that the defendant did, in fact, know right from wrong when the defendant was discharged from the hospital; thus, any inference the jury might have drawn from the psychologist’s statement of opinion concerning the defendant’s past sanity would have been of marginal help to the defense on the issue of whether the defendant was insane at the time of the crimes charged. Morgan v. State, 307 Ga. 889, 838 S.E.2d 878, 2020 Ga. LEXIS 102 (2020). Expert’s testimony on mental state and culpability unsolicited. - Defendant’s motion for mistrial was properly denied because the testimony of the trial court’s expert witness on the defendant’s mental state and culpability was unsolicited by the state, which had merely asked if the defendant was experiencing psychosis at the time of the shooting; the expert’s remark was cut off promptly, and the trial court instructed the jury to disregard the remark; and the trial court instructed the jury, as the defendant requested, that the expert should not have testified as to

whether the defendant was criminally responsible at the time of the shooting, and the defendant raised no objection to any of the language used by the trial court. Parker v. State, 309 Ga. 736, 848 S.E.2d 117, 2020 Ga. LEXIS 600 (2020). Psychologist’s testimony on whether defendant knew right from wrong. - Trial court did not commit plain error by allowing a psychologist’s testimony because the defendant failed to make an affirmative showing that a different outcome would have occurred in light of the presumption of sanity as the admissible evidence showed the defendant could distinguish right from wrong at the relevant time and the defendant failed to draw any connection between the defendant’s mental illness and an (asserted) inability to distinguish right from wrong. Croyle v. State, 360 Ga. App. 157, 860 S.E.2d 844, 2021 Ga. App. LEXIS 314 (2021). Limitation on doctor’s testimony proper. - Trial court did not abuse the court’s discretion by limiting a doctor’s testimony because the court allowed the expert to testify at length about the forensic interview and what the expert opined were problems with the process, as well as why certain outcries were more likely to be the result of a scripted response. What the trial court prohibited was the expert’s testimony about the contents of the police reports, which was a proper limitation. Hambrick v. State, 353 Ga. App. 666, 839 S.E.2d 664, 2020 Ga. App. LEXIS 31 (2020), cert. denied, No. S20C0935, 2020 Ga. LEXIS 806 (Ga. Sept. 28, 2020). Doctor’s testimony did not encompass who inflicted injury. - Since the doctor’s testimony encompassed the intentional and aggressive nature of the bite marks to the child victim but did not identify the defendant as having inflicted the bites, the doctor’s testimony was not improper. Robinson v. State, 309 Ga. 729, 848 S.E.2d 441, 2020 Ga. LEXIS 603 (2020).