Hearsay is that which does not derive its value solely from the credit of the witness who is testifying, but rests mainly on the truthfulness and competency of other persons. O.C.G.A. § 24-3-1; Hammock v. State, 311 Ga. App. 344 (2011); O.C.G.A. §§ 24-8- 801- 24-8-825.
Hearsay generally relates to an out of court statement by someone other than the witness. McClain v. State, 311 Ga. App. 750 (2011); Blunt v. State, 275 Ga. App. 409 (2005). The jury is asked to assume that the out of court person who made the statement was not lying or mistaken when the statement was made. Hammock v. State, 311 Ga. App. 344 (2011); Diaz v. State, 275 Ga. App. 557
(2005).
When a witness testifies to what he told another person, it is not hearsay. English v. State, 288 Ga. App. 436 (2007). Also, anything seen or heard by the witness in the presence of the defendant is admissible and does not constitute hearsay. Lewis v. State, 311 Ga. App. 54 (2011). Further, what the defendant said is not considered hearsay and is admissible in the prosecution's case through the testimony of anyone who heard the statement. Dukes v. State, 290 Ga. 486 (2012); Austin v. State, 286 Ga. App. 149 (2007).
Subject to certain exceptions, hearsay testimony is not admissible during a criminal trial. Further, hearsay has no probative value, and even its introduction without objection does not give it any weight or force whatsoever in establishing a fact. Cabrera v. State, 303 Ga. App. 646 (2010). This rule will be changed by the new evidence code. Hearsay that is not objected to will be considered legal evidence. O.C.G.A. § 24-8-802.
There are several exceptions to the rule against hearsay that arise frequently during a criminal trial. When the person who made the statement testifies at trial and is subject to cross-examination, the witness' out of court statements to others can be admitted. Veasey v. State, 311 Ga. App. 762 (2011). The witness testifying satisfies the concerns of the hearsay rule. State v. Woods, 311 Ga. App. 577 (2011); Conley v. State, 257 Ga. App. 563 (2002).
Admissions
Admissions shall not be excluded by the hearsay rule. Lyons v. State, 309 Ga. 15 ; OCGA § 24-8-801 (d) (2) (A) An admission is a statement offered against a party which is: . . . The party's own statement, in either an individual or representative capacity. Additionally, this was a statement against interest which was not excluded by the hearsay rule. See OCGA § 24-8-804 (b) (3); Clements v. State, S23A0857 (December 19, 2023).
Business records
Business records may be admissible during a trial even though they contain hearsay information. O.C.G.A. § 24-3-14; O.C.G.A. § 24-8-803. Further,
the witness testifying about the business records does not have to be the custodian of those records. Hurst v. State, 285 Ga. 294 (2009).
In order to introduce a writing under the business records exception to the hearsay rule, a witness must indicate that he is aware of the method of keeping the documents. It is not required that the witness made the records or kept them under his supervision or control. Instead, the witness must be able to testify that the record was made (1) in the regular course of business, and (2) at the time of the event or within a reasonable time of the event. The witness' lack of personal knowledge regarding how the records were created does not render them inadmissible, but merely affects the weight given to the evidence. Hite v. State, 315 Ga. App. 221 (2012); In the Interest of Hudson, 300 Ga. App. 340 (2009); McKinley v. State, 303 Ga. App. 203 (2010).
Those portions of business records which contain conclusions, opinions, estimates and impressions of third parties who are not present are no admissible under the business records exception to the hearsay rule. Forrester v. State, 315 Ga. App. 1 (2012); Malcolm v. State, 263 Ga. 369 (1993).
Child Hearsay
A statement made by a child under the age of 14 years describing any act of sexual contact or physical abuse performed with or on the child by another or performed with or on another in the presence of the child is admissible in evidence by the testimony of the person or persons to whom made if the child is available to testify in the proceedings and the judge finds that the circumstances of the statement provide sufficient indicia of reliability. Bunn v. State, S11G0682; O.C.G.A. § 24-3-16; O.C.G.A. § 24-8- 820. The child hearsay statute allows testimony even if the hearsay may be bolstering. Ledford v. State, 313 Ga. App. 389 (2011).
The Child Hearsay Statute can violate a defendant's right to confrontation because it fails to put the burden on the prosecution to put the child victim on the witness stand to confront the defendant. The Confrontation Clause concerns can be satisfied by the prosecution giving reasonable pretrial notice of its intent to use child hearsay statements during trial, thus giving the defendant an opportunity to object on Confrontation Clause grounds. If the defendant objects on Confrontation Clause grounds, the State must present the child victim at trial. If the defense fails to object, the State can introduce the statement subject to the judge determining that the circumstances of the statement provide sufficient indicia of reliability. The judge should take reasonable steps to determine if the defendant is waiving any Confrontation Clause objection. Hatley
v. State, 290 Ga. 480 (2012).
Co-conspirator Statements
After the fact of a conspiracy is proved, the declarations by any one of the conspirators during the pendency of the criminal project, including the concealment phase, shall be admissible against all.
O.C.G.A. § 24-3-5; O.C.G.A. § 24-8-801. Co-conspirator statements may only be used to admit statements against a conspirator and are not a means by which a defendant/conspirator may introduce exculpatory evidence. Dennis v. State, 303 Ga. App. 457 (2010); Dunbar v. State, 205 Ga. App. 867 (1992). For example, the defendant cannot introduce evidence that the alleged co-conspirator told another person that the defendant was not involved in the crime.
The State is not required to prove the existence of the conspiracy before the statement can be admitted. The judge can permit the State to admit the statement so long as the State proves during the trial the existence of the conspiracy. Foster v. State, 290 Ga. 599 (2012); Purvis v. State, 273 Ga. 898 (2001).
The guilty plea of a co-defendant is not admissible at a defendant's trial. Robinson v. State, 312 Ga. App. 110 (2011); Pickney v. State, 236 Ga.
App. 74 (1999).
O.C.G.A. § 24-3-2 is authority for admitting recordings of phone calls between witnesses, co- conspirators, informers, and/or third parties that were made after the crimes at issue and at the direction of law enforcement officers, even when one of the parties to the conversation did not testify at trial. Redinburg v. State, 315 Ga. App. 413 (2012); Bundrage v. State, 265 Ga. 813 (1995).
Declarations Against Title
Declarations by a person in possession of property in disparagement of his own title shall be admissible in evidence in favor of anyone and against privies of the declarant. O.C.G.A. § 24-3-7.
Dying Declarations
Declarations by any person in the process of death, who is conscious of his condition, as to the cause of his death and the person who killed him, shall be admissible in evidence in a prosecution for the homicide. O.C.G.A. § 24-8-804 (b). The testimony introduced as a dying declaration does not have to contain a statement by the deceased to the effect that he is conscious of his impending death at the time the declaration is made. It may be inferred from the nature of the wounds and other circumstances. Wiggins v. State, S14A0853.
Former Testimony
The testimony of a witness since deceased, disqualified, or inaccessible for any cause which was given under oath at a previous trial upon substantially the same issue and between substantially the same parties may be proved by anyone who heard it and who professes to remember the substance of the entire testimony as to the particular matter about which he testifies. O.C.G.A. § 24-3-10; O.C.G.A. § 24-8-804 (b).
The party seeking to admit the former testimony must show that he used due diligence in trying to locate the witness and subpoena the witness to court. Hill v. State, 291 Ga. 160 (2012); Thomas v. State, 290 Ga. 653 (2012); Dillingham v. State, 275 Ga. 665
(2002).
The certificate or attestation of the court reporter shall give sufficient validity or authenticity to a copy of a transcript for it to be admitted into evidence.
O.C.G.A. § 24-5-31; Grovner v. State, 317 Ga. App. 623 (2012).
Medical Diagnosis
Statements made for purposes of medical diagnosis or treatment describing medical history or past or present symptoms, pain, or sensations, or the inception or general character of the cause or external source thereof insofar as reasonably pertinent to diagnosis or treatment shall be admissible in evidence. O.C.G.A. § 24-3-4; O.C.G.A. § 24-8-803.
Necessity
The necessity exception to the hearsay rule allows the admission of evidence that is otherwise hearsay upon a showing of necessity and particularized guarantees of trustworthiness. Chapel v. State, 270 Ga. 151 (1998).
O.C.G.A. § 24-3-1 (b) provides that hearsay evidence is admissible in "specified cases from necessity." Hearsay is admissible under the necessity exception if: (1) the declarant of the statement is unavailable; (2) the declarant's statement is relevant and more probative of a material fact than other evidence that may be obtained and offered; and (3) the statement exhibits specific indicia of reliability. McNaughton v. State, 290 Ga. 894 (2012); Gibson v. State, 290 Ga. 6 (2011); Miller v. State, 289 Ga. 854 (2011); Butler v. State, 290 Ga. 425 (2012; O.C.G.A.
§ 24-8-807.
Offered to Explain Conduct
When, in a legal investigation, information, conversations, letters and replies, and similar evidence are facts to explain conduct and ascertain motives, they shall be admitted in evidence not as hearsay but as original evidence. O.C.G.A. § 24-3-2. Statements offered to explain the conduct of a police officer are hearsay and generally may not be used as criminal evidence of a defendant's guilt. White v. State, 273 Ga. 787 (2001); Germany v. State, 235 Ga. 836 (1977). Only in rare instances will the conduct of an investigating officer need to be explained. Foster v. State, 314 Ga. App. 642 (2012); Williams v. State, 312 Ga. App. 693 (2011); Reeves v. State, 288 Ga. 545 (2011). Smoot v. State, 316 Ga. App. 102 (2012). Testimony about what an officer learned during an investigation is not hearsay if the officer does not repeat the statement of an out-of-court declarant. Bearden v. State, 316 Ga. App. 721 (2012); Smith v. State, 274 Ga. App. 852 (2005).
Res Gestae
Declarations accompanying an act, or so nearly connected therewith in time as to be free from all suspicion of device or afterthought, shall be admissible in evidence as part of the res gestae. O.C.G.A. § 24-3-3; Bonilla v. State, 289 Ga. 862
(2011).