CopyCited 47 times | Published | Supreme Court of Georgia | May 17, 2022 | 313 Ga. 771
...ultimate issue to be decided by the trier of fact,” except for “an
opinion or inference as to whether the accused did or did not have
the mental state or condition constituting an element of the crime
12
charged or of a defense thereto,” OCGA §
24-7-704, an issue that
Detective Cleland did not address....
CopyCited 29 times | Published | Supreme Court of Georgia | Dec 14, 2021
...We therefore conclude that
Appellant failed to show deficient performance under Strickland,
and this ineffective assistance claim also fails.
Finally, Appellant argues trial counsel was ineffective when he
failed to object when Dr. Gay testified as to the ultimate issue of
intent in violation of OCGA §
24-7-704 (b), which states:
No expert witness testifying with respect to the
mental state or condition of an accused in a criminal
26
proceeding shall state an opinion or inference as to...
...experiencing PTSD symptoms?
DR. GAY: I would say that would be inconsistent.
And that kind of goes back to premeditation and
intent.
Assuming without deciding that Dr. Gay testified on the
ultimate issue of intent in violation of OCGA §
24-7-704 (b) and that
trial counsel was constitutionally deficient for failing to object to this
portion of Dr....
CopyCited 28 times | Published | Supreme Court of Georgia | Oct 21, 2019
...Code in which the parties cited no case law interpreting that Code or the
15
applied to Appellant’s 2015 trial, lay opinion testimony is not
objectionable simply because it addresses an ultimate issue. See
OCGA §
24-7-704 (a) (explaining that, subject to an exception not
relevant here, “testimony in the form of an opinion or inference
otherwise admissible shall not be objectionable because it embraces
an ultimate issue to be decided by the trier of fact”); Grier v....
...State,
299 Ga. 180, 192 (787 SE2d 221)
(2016). We are disappointed that Appellant’s counsel from the Appellate
Division of the Georgia Public Defender Council, despite her regular practice
before this Court, failed to heed this admonition.
7 OCGA §
24-7-704 (a) materially tracks its counterpart in the Federal
Rules of Evidence; we therefore look to the decisions of the federal appellate
courts, particularly the Eleventh Circuit, for guidance in applying this
provision....
...tnesses, and his
testimony about those inferences was helpful to determine who shot
Brady. See OCGA §
24-7-701 (a).8 See also Grier,
305 Ga. at 885.
Thus, the testimony about which Appellant complains was
admissible under OCGA §§
24-7-701 and
24-7-704, and trial
counsel’s eliciting this testimony was not deficient in that respect.
Moreover, as the trial court correctly concluded in its order
denying Appellant’s motion for new trial, his counsel elicited the
detective’s te...
CopyCited 23 times | Published | Supreme Court of Georgia | Feb 10, 2020 | 307 Ga. 889
...And, if Morgan’s mental illness had
rendered her unable to determine right from wrong in the past, then
the jury could reasonably infer that her mental illness rendered her
unable to determine right from wrong when she drowned her
children. Morgan argued that OCGA §
24-7-704 (b) (“Rule 704 (b)”),
which prohibits certain opinion testimony concerning a criminal
defendant’s mental state when that mental state constitutes “an
element of the crime charged or of a defense thereto,” did not bar the
adm...
CopyCited 19 times | Published | Supreme Court of Georgia | Feb 21, 2023 | 315 Ga. 630
...rather than an
opinion on the ultimate issue of whether [Taylor] committed the
offense.” In the alternative, the trial court ruled that the
investigator’s “remark was not barred even if it touched on the
ultimate issue in the case” under OCGA §
24-7-704 (a).
(b) “Under Georgia’s Evidence Code, a lay witness ‘may not
testify to a matter unless evidence is introduced sufficient to support
a finding that the witness has personal knowledge of such matter.
Evidence to prove per...
...bing”).
In addition, except for certain expert testimony, “testimony in the
form of an opinion or inference otherwise admissible shall not be
objectionable because it embraces an ultimate issue to be decided by
the trier of fact.” See OCGA §
24-7-704 (“Rule 704”)....
CopyCited 17 times | Published | Supreme Court of Georgia | Sep 8, 2020 | 309 Ga. 785
...an most of
the day before his death. See Grier v. State,
305 Ga. 882, 885-86 (2)
(a) (828 SE2d 304) (2019) (witness’s opinion testimony admissible
where it is rationally based on his perception and helpful to
understanding his testimony); OCGA §
24-7-704 (a) (“Except as
provided in subsection (b) of this Code section, testimony in the form
of an opinion or inference otherwise admissible shall not be
objectionable because it embraces an ultimate issue to be decided by
the trier of fact.”)....
CopyCited 14 times | Published | Supreme Court of Georgia | Sep 8, 2020 | 309 Ga. 814
...Putting aside that whether Lewis was an
accomplice was not actually the ultimate issue in the case, and that
the detective did not testify directly on the accomplice issue, this
Court has repeatedly held — as the State points out — that the
current Evidence Code, specifically OCGA §
24-7-704 (a), “‘abolished
the prohibition on (lay) opinion testimony concerning the ultimate
issue in a case.’” Mack v....
...607, 609 (832 SE2d 415)
(2019) (citation omitted). See also Thornton,
307 Ga. at 127-128. The
current Evidence Code took effect more than five years before
Appellant’s second trial. Accordingly, even if the detective’s
testimony touched on the ultimate issue, OCGA §
24-7-704 (a) “does
not bar the admission of his comments.” Mack, 306 Ga....
CopyCited 14 times | Published | Supreme Court of Georgia | Sep 8, 2020 | 309 Ga. 729
...Evans’s testimony improperly address an ultimate
issue. Generally, “testimony in the form of an opinion or inference
otherwise admissible shall not be objectionable because it embraces
an ultimate issue to be decided by the trier of fact.” OCGA
24-7-704
(a). The exception to the rule is set forth in OCGA §
24-7-704 (b):
2 We note:
Although Georgia's new Evidence Code is applicable to the
trial of this case, the evidentiary requirements relating to the
admissibility of expert opinion testimony in a criminal case under...
...Dr.
Evans’s testimony encompassed the intentional and aggressive
nature of the bite marks but did not identify Robinson as having
inflicted them. Her testimony was not improper. See id. at 10-11
(4) (physician’s testimony that injuries to the victim were
“nonaccidental” was not inadmissible under OCGA §
24-7-704 (b)).
Judgment affirmed in part and vacated in part....
CopyCited 11 times | Published | Supreme Court of Georgia | Mar 1, 2021 | 310 Ga. 892
...17
not amount to improper opinion testimony). And, even if they did,
the current Evidence Code — unlike the former Code — does not
generally prohibit lay witness testimony on “ultimate issue”
grounds. See OCGA §
24-7-704 (a); Mack v. State,
306 Ga. 607, 610
(2) (832 SE2d 415) (2019) (even if detective’s comments “touched on
the ultimate issue in the case,” they were not subject to exclusion
under OCGA §
24-7-704 (a))....
CopyCited 11 times | Published | Supreme Court of Georgia | Sep 8, 2020 | 309 Ga. 736
...Here, the testimony in question was unsolicited by the State, which
had merely asked if Parker was experiencing psychosis at the time
3 The District Attorney, but not the Attorney General, argues that the
testimony was admissible. We note that OCGA §
24-7-704 (b), which is similar
to a federal rule of evidence, see Fed....
CopyCited 9 times | Published | Supreme Court of Georgia | Aug 5, 2019
...person that had the – was in control of the drugs, the
person that was going to be selling the actual drugs.
Morton contends that Sergeant Brandle’s testimony improperly
invaded the province of the jury as to Morton’s drug charges in
violation of OCGA §
24-7-704 (b),2 and also contends that Sergeant
2 No expert witness testifying with respect to the mental state or
condition of an accused in a criminal proceeding shall state an opinion or
inference as to whether the accuse...
...See Gates v. State,
298 Ga. 324 (3) (781 SE2d 772) (2016) (holding that the Kelly plain
error test for alleged instructional errors also applies to evidentiary
errors under OCGA
24-1-103 (d)). We find no plain error.
With regard to Morton’s OCGA §
24-7-704 (b) claim, and
pretermitting the question of whether Sergeant Brandle actually
opined as to Morton’s mental state on the drug charges, Morton
cannot show plain error....
CopyCited 8 times | Published | Supreme Court of Georgia | Aug 19, 2019
...He shot him
in the face and at five feet away or six feet away. [Gesturing] That’s
how I would shoot you in the face, not like this. Not like that. Not
like this. I shoot you in the face.”
This case is governed by the new Evidence Code, so OCGA §
24-7-704 governs the admission of opinion testimony of both lay and
5
expert witnesses. In the case of lay witness testimony, “an opinion
or inference otherwise admissible shall not be objectionable because
it embraces an ultimate issue[.]” OCGA §
24-7-704 (a); see also Grier
v....
...ion omitted));
Thompson v. State,
304 Ga. 146, 153 (9) (816 SE2d 646) (2018) (a
detective’s opinion testimony indicating she believed appellant to be
the shooter “did not violate the ultimate issue rule in the new
Evidence Code”); cf. OCGA §
24-7-704 (b) (prohibiting expert
testimony on certain “ultimate issues” reserved “for the trier of fact
alone”)....
CopyCited 8 times | Published | Supreme Court of Georgia | Aug 5, 2019
...rson that had the - was in control of the drugs, the person that was going to be selling the actual drugs.
Morton contends that Sergeant Brandle's testimony improperly invaded the province of the jury as to Morton's drug charges in violation of OCGA §
24-7-704 (b),2 and also contends that Sergeant Brandle testified to matters not outside the ken of the jury....
...See Gates v. State ,
298 Ga. 324 (3),
781 S.E.2d 772 (2016) (holding that the Kelly plain error test for alleged instructional errors also applies to evidentiary errors under OCGA §
24-1-103 (d) ). We find no plain error.
With regard to Morton's OCGA §
24-7-704 (b) claim, and pretermitting the question of whether Sergeant Brandle actually opined as to Morton's mental state on the drug charges, Morton cannot show plain error....
CopyCited 4 times | Published | Supreme Court of Georgia | May 29, 2024 | 319 Ga. 149
...Q: In your experience, is a statement like that consistent with
self defense?
A: No.
14
defense.
This testimony of Detective Smith was permissible under
OCGA §
24-7-701 (a)4 and OCGA §
24-7-704 (a).5 Relying on these
Code provisions, we have held that as a general matter a lay witness
may offer opinion testimony based on experience even if the
testimony touches upon an ultimate issue to be decided by the jury.
See Grier v....
...882, 884-86 (2) (a) (828 SE2d 304) (2019)
(witnesses’ opinion that defendant “must have been the one to kill
the victims” was not inadmissible for “invad[ing] the jury’s province
and comment[ing] upon the ultimate issue” but was admissible
under OCGA §§
24-7-701 (a) and
24-7-704 (a)); see also Mack v.
4 OCGA §
24-7-701 provides:
If the witness is not testifying as an expert, the witness’s
testimony in the form of opinions or inferences shall be limited to
those opinions or infere...
...testimony or the determination of a fact in issue; and
(3) Not based on scientific, technical, or other
specialized knowledge within the scope of Code Section 24-
7-702 [Expert testimony; qualifications as expert].
5 OCGA §
24-7-704 (a) states: “[T]estimony in the form of an opinion or
inference otherwise admissible shall not be objectionable because it embraces
an ultimate issue to be decided by the trier of fact.”
15
State, 306 Ga....
CopyCited 4 times | Published | Supreme Court of Georgia | May 2, 2023 | 316 Ga. 363
...that McCalop was “malingering” during her interview with police
and that the relationship of McCalop and Martin was “mutually
abusive” and “dysfunctional”—was not impermissible “state of
mind” testimony going to the ultimate issue.
OCGA §
24-7-704 (b) provides:
No expert witness testifying with respect to the mental
state or condition of an accused in a criminal proceeding
2 Rule 703 provides in part:
The facts or data in the particular proceeding upon which...
...Hamel’s testimony
addressed the general condition of McCalop’s and Martin’s
relationship and whether McCalop misled police during her
interview. Thus, the complained-of portions of Dr. Hamel’s
testimony were not impermissible “state of mind” testimony
pursuant to OCGA §
24-7-704 (b).
For these reasons, McCalop has not shown any error in
permitting Dr....
CopyCited 3 times | Published | Supreme Court of Georgia | Apr 30, 2024 | 318 Ga. 868
...onsidered an
expert opinion, not a factual assertion. See, e.g., OCGA §
24-7-701
(a) (3) (a witness may not give an opinion that is “based on scientific,
technical, or other specialized knowledge” unless she is qualified as
an expert); OCGA §
24-7-704 (b) (restricting an “expert witness tes-
tifying with respect to the mental state or condition of an accused in
a criminal proceeding” from opining on whether the defendant had
the required mental state to be guilty of the charged offense); Mid-
dlebrooks v....
CopyCited 3 times | Published | Supreme Court of Georgia | Feb 6, 2024 | 318 Ga. 213
...orded interview between
Appellant and the State’s psychiatrist, Dr. Norman. Appellant first
argues that the evidence should have been excluded because it
violated the trial court’s earlier ruling excluding ultimate-issue
testimony under OCGA §
24-7-704 (b)....
...h symptoms.
They cannot take the additional step to say, and I don’t
believe I saw that from him on this day. They simply could
point out . . . what they believe those things manifest for
him generally. They cannot, pursuant to
24-7-704 (b),[5]
get to the ultimate issue which is his state of mind,
mental state or condition, on the day in question.6
Prior to Dr....
...The State further indicated that it had
redacted two segments of the interview to remove Appellant’s
references to a previous arrest and a previous stay in jail not at issue
here and that the State had presented the redacted version of the
5 OCGA §
24-7-704 (b) provides:
No expert witness testifying with respect to the mental state
or condition of an accused in a criminal proceeding shall state an
opinion or inference as to whether the accused did or did not have
t...
...any questions.” Lastly,
the trial court concluded that the portion of Dr. Norman’s interview
14
to which Appellant objected did not violate the court’s previous
ruling on ultimate-issue testimony under OCGA §
24-7-704 (b),
which precludes experts from stating “an opinion or inference as to
whether the accused did or did not have the mental state or
condition constituting an element . . . of a defense thereto.”
(b) (i) Even assuming that Appellant preserved his objection
under OCGA §
24-7-704 (b) to the admission of Dr....
...ant was] thinking and feeling
around the time that the crime was committed” violated the trial
court’s earlier ruling excluding expert opinion testimony on the
ultimate issue of Appellant’s mental state at the time of the crimes
under OCGA §
24-7-704 (b)....
...Norman’s remarks, however, only addressed the
purpose of the interview and did not constitute an opinion or
inference of any sort — let alone an opinion or inference about
Appellant’s mental state at the time of the crime. Dr. Norman’s
statement therefore did not violate either OCGA §
24-7-704 (b) or
the trial court’s previous ruling pursuant thereto....
Published | Supreme Court of Georgia | Aug 26, 2025 | 318 Ga. 213
...f expertise, and the trial
court overruled the objection.
On appeal, Mack contends that this testimony was admitted in
error and invaded the province of the jury to determine the facts and
the ultimate issue in the case in violation of OCGA §
24-7-704(b).
11
Assuming without deciding that the trial court abused its dis-
cretion in admitting this testimony, any error was harmless....
Published | Supreme Court of Georgia | Dec 14, 2021 | 318 Ga. 213
...We therefore conclude that
Appellant failed to show deficient performance under Strickland,
and this ineffective assistance claim also fails.
Finally, Appellant argues trial counsel was ineffective when he
failed to object when Dr. Gay testified as to the ultimate issue of
intent in violation of OCGA §
24-7-704 (b), which states:
26
No expert witness testifying with respect to the mental
state or condition of an accused in a criminal proceeding
shall state an opinion or inference as to whether...
...experiencing PTSD symptoms?
DR. GAY: I would say that would be inconsistent.
And that kind of goes back to premeditation and
intent.
Assuming without deciding that Dr. Gay testified on the
ultimate issue of intent in violation of OCGA §
24-7-704 (b) and that
trial counsel was constitutionally deficient for failing to object to this
portion of Dr....
CopyPublished | Supreme Court of Georgia | May 20, 2019
...that McDowell knew Grier said he “offed them boys.” “And even
though [their] ‘opinion’ about who killed [the victims] addresse[d] an
ultimate issue in the case, that alone does not make the testimony
objectionable.” Campo, supra, 840 F3d at 1266-1267. See OCGA §
24-7-704 (a) (“Except as provided in subsection (b) of this Code
section, testimony in the form of an opinion or inference otherwise
admissible shall not be objectionable because it embraces an
ultimate issue to be decided by the trier of fact.”)....
