2020 Georgia Code
Title 24 - Evidence
Chapter 8 - Hearsay
Article 1 - General Provisions
§ 24-8-802. Hearsay Rule

Hearsay shall not be admissible except as provided by this article; provided, however, that if a party does not properly object to hearsay, the objection shall be deemed waived, and the hearsay evidence shall be legal evidence and admissible.

(Code 1981, §24-8-802, enacted by Ga. L. 2011, p. 99, § 2/HB 24.)

- The rule against hearsay, Fed. R. Evid. 802.

- For article, "Dancing with the Big Boys: Georgia Adopts (most of) the Federal Rules of Evidence," see 63 Mercer L. Rev. 1 (2011).

ANALYSIS

• General Consideration
• Application
• Objections

General Consideration

Editor's notes.

- In light of the similarity of the statutory provisions, decisions under former Code 1933, § 38-301, and former O.C.G.A. § 24-3-1 are included in the annotations for this Code section. The reader is advised to also consult the annotations following Code Section24-8-801, which may also be applicable to this Code section.

- Chief reasons for the exclusion of hearsay evidence are the want of a sanction of an oath, and of any opportunity to cross-examine the witness. Foster v. Brooks, 6 Ga. 287 (1849) (decided under former law); Bennett v. State, 49 Ga. App. 804, 176 S.E. 148 (1934); Peacon v. Peacon, 197 Ga. 748, 30 S.E.2d 640 (1944) (decided under former Code 1933, § 38-301);(decided under former Code 1933, § 38-301).

There is a distinction between illegal testimony and secondary evidence in that hearsay testimony (illegal testimony) has no probative force whatsoever, and its only effect is to prejudice the minds of the jury against the party against whom such hearsay evidence is introduced, while the only objection to secondary evidence is that it is received without first laying the preliminary foundation; such evidence stands on a different footing, and if admitted without objection it is nevertheless competent, for by allowing such evidence without objecting at the time it is sought to be introduced the party waives the party's right to have the best evidence of such fact sought to be proved, and cannot subsequently insist that the court should withdraw such secondary evidence from the consideration of the jury. Rushin v. State, 63 Ga. App. 646, 11 S.E.2d 844 (1940) (decided under former Code 1933, § 38-301).

Hearsay testimony is wholly without probative value, and its introduction without objection does not give it any weight or force whatever in establishing a fact. Higgins v. Trentham, 186 Ga. 264, 197 S.E. 862 (1938) (decided under former Code 1933, § 38-301); Crawley v. Selby, 208 Ga. 503, 67 S.E.2d 775 (1951); Collins v. State, 146 Ga. App. 857, 247 S.E.2d 602 (1978) (decided under former Code 1933, § 38-301); Finch v. Caldwell, 155 Ga. App. 813, 273 S.E.2d 216 (1980);(decided under former Code 1933, § 38-301);(decided under former Code 1933, § 38-301).

Any error in admitting a hearsay statement was harmless by defendant's subsequently being called as a witness. Hufstetler v. State, 171 Ga. App. 106, 319 S.E.2d 869 (1984) (decided under former O.C.G.A. § 24-3-1).

Assuming that the trial court erred in excluding a witness's testimony that the witness observed an interaction between the defendant and the victim's mother, there was no ground for reversal because any such error was harmless; aside from the fact that the meaning of the mother's response was unclear, other evidence was presented that on a prior occasion the mother had harmed the victim. Amador v. State, 310 Ga. App. 280, 713 S.E.2d 423 (2011) (decided under former O.C.G.A. § 24-3-1).

- Testimony was inadmissible hearsay because the former police detective did not actually test the blood but was simply repeating information the detective read in the lab report, and while the court may have abused the court's discretion by allowing the detective to testify as to the results of the blood test, any error was harmless given the overwhelming evidence of defendant's guilt. Green v. State, 249 Ga. App. 546, 547 S.E.2d 569 (2001) (decided under former O.C.G.A. § 24-3-1).

Trial court erred in admitting testimony of a police officer about what the murder victim told the officer shortly after defendant shot into the bedroom in which the victim was sleeping, which was one of defendant's prior bad acts that the state tried to get admitted under the necessity exception to the hearsay rule. Such testimonial hearsay in a criminal prosecution was admissible when the declarant was unavailable only if the defendant had a prior opportunity to cross-examine the declarant about the hearsay statement, and defendant had no such opportunity, but because the statement did not contribute to defendant's conviction, admission of it was harmless error. Moody v. State, 277 Ga. 676, 594 S.E.2d 350 (2004) (decided under former O.C.G.A. § 24-3-1).

- If there was no request to charge the purpose for which testimony could be considered under former O.C.G.A. § 24-3-2 (see now O.C.G.A. §§ 24-8-801 and24-8-802), failure to so instruct the jury did not constitute reversible error. Payne v. State, 163 Ga. App. 276, 293 S.E.2d 483 (1982) (decided under former O.C.G.A. § 24-3-1).

Defendant failed to preserve for review the argument that the trial court erred in allowing a witness to testify about the victim's statement because although the codefendant's counsel vigorously opposed the state's request to elicit the hearsay statements, the defendant's counsel failed to object, join in the codefendant's objection, or argue in any way regarding the issue. Mathis v. State, 291 Ga. 268, 728 S.E.2d 661 (2012) (decided under former O.C.G.A. § 24-3-1).

Cited in Cisneros v. State, 334 Ga. App. 659, 780 S.E.2d 360 (2015), aff'd, 792 S.E.2d 326 (Ga. 2016); Mashburn Constr., L.P. v. CharterBank, 340 Ga. App. 580, 798 S.E.2d 251 (2017); Gordon v. Dennis, 347 Ga. App. 110, 817 S.E.2d 561 (2018); Williams v. Durden, 347 Ga. App. 363, 819 S.E.2d 524 (2018); Lalonde v. Taylor English Duma, LLP, 349 Ga. App. 853, 825 S.E.2d 237 (2019); Mason v. State, 353 Ga. App. 404, 837 S.E.2d 711 (2020); Morgan v. State, 307 Ga. 889, 838 S.E.2d 878 (2020).

Application

1. Admissible Hearsay

Indicia of reliability required for admissibility are that the statements be nonnarrative, that the declarant is shown by the evidence to know whereof the declarant speaks, that the witness is not apt to be proceeding on faulty recollection, and that the circumstances show that the declarant had no apparent reason to lie to the witness; it is not required that all of the indicia be present for the statement to be admissible. Timberlake v. State, 158 Ga. App. 125, 279 S.E.2d 283 (1981) (decided under former O.C.G.A. § 24-3-1).

- Statement which is a spontaneous reaction to a startling event is admissible hearsay testimony. House v. State, 252 Ga. 409, 314 S.E.2d 195 (1984) (decided under former O.C.G.A. § 24-3-1); Daker v. State, 243 Ga. App. 848, 533 S.E.2d 393 (2000), cert. denied, 534 U.S. 1093, 122 S. Ct. 838, 151 L. Ed. 2d 717 (2002); 534 U.S. 1093, 122 S. Ct. 838, 151 L. Ed. 2d 717 (2002), cert. denied,(decided under former O.C.G.A. § 24-3-1).

Trial court did not abuse the court's discretion by admitting statements that the victim allegedly made to the victim's niece, who discovered the victim on the morning after the beating, as exceptions to the rule against hearsay as present sense impressions, excited utterances, and to impeach the niece's trial testimony as, under the totality of the circumstances, the victim was still suffering under the stress of the all-night beating such that the victim's statements were admissible. Robbins v. State, 300 Ga. 387, 793 S.E.2d 62 (2016).

Hearsay evidence is admissible for impeachment, though inadmissible for other purposes. Seaboard Coast Line R.R. v. Smalley, 127 Ga. App. 652, 194 S.E.2d 612 (1972) (decided under former Code 1933, § 38-301).

Hearsay testimony is admissible to prove the location of a county line. Poulos v. State, 49 Ga. App. 20, 174 S.E. 253 (1934) (decided under former Code 1933, § 38-301).

Market price can be shown by hearsay. McKenzie v. Perdue, 67 Ga. App. 202, 19 S.E.2d 765, rev'd on other grounds, 194 Ga. 356, 21 S.E.2d 705 (1942) (decided under former Code 1933, § 38-301).

- Double hearsay was properly admitted about what a witness heard an individual say because the individual's credibility had been placed at issue by way of an attack on the witness's motive. Dillard v. State, 272 Ga. App. 523, 612 S.E.2d 804 (2005) (decided under former O.C.G.A. § 24-3-1).

- Given that the right of confrontation was a trial right, there was no reason to apply that right to a transfer hearing involving a juvenile; therefore, hearsay evidence was admissible at such hearings. In the Interest of T. F., 295 Ga. App. 417, 671 S.E.2d 887 (2008) (decided under former O.C.G.A. § 24-3-1).

2. Hearsay Found

Opinion as to reason for death.

- In an action seeking to prevent a husband from receiving benefits under his wife's life insurance policy and from inheriting her estate on grounds that he allegedly killed his wife, the detective's testimony that an IRS agent said that in the agent's opinion her death was related to a federal tax fraud investigation and attorney's testimony that the IRS agent told the detective that the federal government was concerned that her death was linked to the investigation, were inadmissible hearsay. A memorandum in which the detective wrote that IRS agents stated it was their opinion that she died as a result of a conspiracy involving two corporations was also hearsay. Krause v. Vance, 207 Ga. App. 615, 428 S.E.2d 595 (1993) (decided under former O.C.G.A. § 24-3-1).

- Trial court erred in admitting the testimony of a witness who stated that after the shooting and while talking to police officers investigating the crimes, the witness heard a member of the crowd which had gathered around the victim's residence yell at the witness to tell police that defendant was the shooter. Lindsey v. State, 271 Ga. 657, 522 S.E.2d 459 (1999) (decided under former O.C.G.A. § 24-3-1).

While the trial court erred in admitting hearsay testimony regarding: (1) "leaders of the community" informing police that defendant had been selling drugs; (2) people fearing defendant and being unwilling to cooperate with police; (3) police using a drug dog to search defendant's car based on information they received about defendant transporting drugs; and (4) one of the confidential informants being unable to testify due to the informant's being sick on the day of trial, this error was harmless in light of the overwhelming evidence of defendant's guilt. Banks v. State, 270 Ga. App. 221, 606 S.E.2d 34 (2004) (decided under former O.C.G.A. § 24-3-1).

- In a prosecution for simple battery, the testimony of the investigating officer as to a statement by one codefendant was not admissible when two additional adult eyewitnesses were present at the defendants' home on the night of the incident. Harrison v. State, 238 Ga. App. 485, 518 S.E.2d 755 (1999) (decided under former O.C.G.A. § 24-3-1).

In a juvenile's adjudication as delinquent for theft by taking the juvenile's sister's car, although the juvenile admitted taking the car, the state failed to prove venue and failed to prove that the taking was unlawful as required by O.C.G.A. § 16-8-2. The officer's testimony that the sister said the taking was without the sister's permission was inadmissible hearsay and was insufficient to support the adjudication even though the evidence was admitted without objection. In the Interest of E.C., 311 Ga. App. 549, 716 S.E.2d 601 (2011) (decided under former O.C.G.A. § 24-3-1).

- Because defendant was provided a full opportunity for confrontation regarding the victim's prior out-of-court statements, the trial court did not err in admitting a police investigator's hearsay evidence. Gartrell v. State, 272 Ga. App. 726, 613 S.E.2d 226 (2005) (decided under former O.C.G.A. § 24-3-1).

- Trial court erred in permitting the detective to testify about what five witnesses told the detective, after the five witnesses testified against defendant, and in then comparing their statements to what defendant had said on the same subject in defendant's statements to police, which demonstrated inconsistencies between defendant's statements and those made by the five witnesses; the statements of the five witnesses were prior consistent statements that were inadmissible hearsay because they were offered solely to bolster their testimony in the eyes of the jury since the veracity of their testimony had not been challenged when they testified earlier in the case before the detective testified. Baugh v. State, 276 Ga. 736, 585 S.E.2d 616 (2003) (decided under former O.C.G.A. § 24-3-1).

Trial court erred in overruling the defendant's hearsay objection because an officer's testimony about what the victim's motel neighbor said to the officer, which came before that witness took the stand, was not a prior consistent statement but was hearsay; however, the error was harmless because any improper bolstering of the victim's neighbor's testimony by the officer's hearsay testimony had no real effect on the defendant's convictions since the victim's neighbor did testify, and that testimony repeated and expanded on the prior statements the officer had recounted. Johnson v. State, 289 Ga. 498, 713 S.E.2d 376 (2011) (decided under former O.C.G.A. § 24-3-1).

- Trial court did not err in excluding a videotape of a statement defendant gave to a detective at the time of 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), overruled on other grounds by State v. Lane, 308 Ga. 10, 838 S.E.2d 808 (2020) (decided under former O.C.G.A. § 24-3-1).

- In a DUI case, it was error for the trial court to overrule the defendant's objection to a police officer's testimony as to what a9-1-1 caller had said to the officer, but the error was harmless; the hearsay was cumulative because the officer's testimony that the defendant was asleep behind the wheel mirrored that of the caller. Hopkins v. State, 283 Ga. App. 654, 642 S.E.2d 356 (2007) (decided under former O.C.G.A. § 24-3-1).

- Partial summary judgment pursuant to O.C.G.A. § 9-11-56 was properly granted to a labor supplier in a construction company's counterclaim alleging tortuous interference with its contractual relations, based on an allegedly illegal lien filed by the supplier against a property, since no factual basis was found for the counterclaim and, accordingly, it was dismissed; it was noted that the affidavit of the administrative manager of the company contained irrelevant matter which was properly excluded under former O.C.G.A. § 24-2-1 (see now O.C.G.A. § 24-4-401), as it related to the supplier's failure to sign a lien waiver and it had no logical bearing to the material fact in issue and, further, it was found to be inadmissible hearsay under former O.C.G.A. § 24-3-1(a) (see now O.C.G.A. §§ 24-8-801 and24-8-802). Langley v. Nat'l Labor Group, Inc., 262 Ga. App. 749, 586 S.E.2d 418 (2003) (decided under former O.C.G.A. § 24-3-1).

Trial court properly struck a paragraph in an estate executrix's affidavit in opposition to the decedent's nephew's motion for summary judgment, arising from an action regarding estate assets and joint venture agreements, as the executrix's assertions regarding a handwritten note by the husband constituted parol evidence which could not be used to alter the meaning of the unambiguous language of the agreements, and necessity was not shown for admission of the hearsay evidence, pursuant to O.C.G.A. §§ 13-2-2(1),24-3-1(b) (see now O.C.G.A. § 24-8-807),24-6-1 (see now O.C.G.A. § 24-3-1), and24-6-2 (see now O.C.G.A. § 24-3-2); accordingly, the handwritten notation that the properties at issue were to be sold for "market value" could not change the contractual language that indicated that the properties would be sold for a predetermined price. Zaglin v. Atlanta Army Navy Store, Inc., 275 Ga. App. 855, 622 S.E.2d 73 (2005) (decided under former O.C.G.A. § 24-3-1).

Trial court did not err in granting a homeowners' association summary judgment on a resident's promissory estoppel claim because the resident failed to come forward with any evidence creating an issue of fact on the resident's claim; the resident stated that a member of the association promised the resident that the association would store the resident's airboat but that claim rested on statements allegedly made to the resident by the member, which were hearsay. Campbell v. Landings Ass'n, 311 Ga. App. 476, 716 S.E.2d 543 (2011) (decided under former O.C.G.A. § 24-3-1).

Trial court did not err in granting a homeowners' association summary judgment on a resident's breach of contract claim because the resident failed to show the elements of an enforceable contract pursuant to O.C.G.A. § 13-3-1; any oral contract between the resident and a member of the association depended upon the statements of the member, who was not deposed and did not offer any affidavit, those statements, therefore, were hearsay proving nothing for the purposes of summary judgment. Campbell v. Landings Ass'n, 311 Ga. App. 476, 716 S.E.2d 543 (2011) (decided under former O.C.G.A. § 24-3-1).

Trial court erred by granting a creditor summary judgment in the creditor's action against a debtor to recover the balance due on a credit card account because the actual amount due the creditor was not sufficiently proved; an employee's statement in an affidavit that the creditor's predecessor indicated to the creditor that the balance was $10,029 was not sufficient to show the actual balance due the creditor because the statement was mere hearsay under former O.C.G.A. § 24-3-1(a) (see now O.C.G.A. §§ 24-8-801 and24-8-802) and not subject to an exception, and the employee's statement that it was the creditor's understanding from the creditor's attorney that no payments had been made since the account was turned over and the principal sum of $10,029 was due was also inadmissible because such hearsay had no probative value whatsoever. Jackson v. Cavalry Portfolio Services, LLC, 314 Ga. App. 175, 723 S.E.2d 475 (2012) (decided under former O.C.G.A. § 24-3-1).

- In an insurance case in which a jury found in favor of an insurer, which had denied property insurance coverage after a house fire to two insureds based on suspected arson, for retrial purposes, it was error to allow the insurer to elicit hearsay testimony from one of the insureds on the critical issue of whether the exterior doors of the insureds' home were locked when the firefighters arrived because the testimony was elicited to prove that the exterior doors were locked at the time of the fire. Bantz v. Allstate Ins. Co., 263 Ga. App. 855, 589 S.E.2d 621 (2003) (decided under former O.C.G.A. § 24-3-1).

When an account statement summarized the invoices therein, but also listed a fee for which no supporting business record was presented, that entry was hearsay and could not be considered in determining the amount owed by the defendant. Walter R. Thomas Assocs. v. Media Dynamite, Inc., 284 Ga. App. 413, 643 S.E.2d 883 (2007) (decided under former O.C.G.A. § 24-3-1).

- In a negligence action, based on a husband's visit to the accident scene where the wife was injured, despite having no formal training in accident reconstruction, the husband could testify as to the personal knowledge gained from that excursion; but, an accident reconstruction expert's report, which both parties referred to in the narrative portion of the police report, was inadmissible hearsay under the circumstances presented. Morton v. Horace Mann Ins. Co., 282 Ga. App. 734, 639 S.E.2d 352 (2006), cert. denied, No. S07C0570, 2007 Ga. LEXIS 201 (Ga. 2007) (decided under former O.C.G.A. § 24-3-1).

Summary of a summary of a detailed report regarding a pesticide chemical was hearsay evidence and should not have been admitted in a trial filed by a personal injury plaintiff as portions of a laboratory report that contained the opinions or conclusions of a third party not before the court were inadmissible until a proper foundation was laid from the person who entered such opinions or conclusions and that person had to qualify as an expert and relate the facts upon which the entry was based; hence, the trial court also erred in allowing a defense witness to testify as to the report who was not qualified as an expert by the court. Chancey v. Peachtree Pest Control Co., 288 Ga. App. 767, 655 S.E.2d 228 (2007), cert. denied, No. S08C0642, 2008 Ga. LEXIS 459 (Ga. 2008) (decided under former O.C.G.A. § 24-3-1).

Summary of terminated caseworker's files was hearsay evidence and should not have been introduced into evidence; without the summary, the state lacked clear and convincing evidence to show that parental rights should be terminated. In the Interest of A.A., 252 Ga. App. 167, 555 S.E.2d 827 (2001) (decided under former O.C.G.A. § 24-3-1).

- Because there was no evidence that a principal authorized someone to act as the principal's agent, agency could not have been proven by declarations of the alleged agent, and a summary judgment affidavit describing statements made by a payee's attorney which had allegedly accelerated a note was properly excluded since the only evidence that the attorney was the payee's agent was the affidavit itself. McManus v. Turner, 266 Ga. App. 5, 596 S.E.2d 201 (2004) (decided under former O.C.G.A. § 24-3-1).

- Trial court did not err in granting a property owner's motion in limine to exclude evidence that a father of a record title holder's descendant told the descendant that the father told the owner's brother that the brother could not build a house on property because the evidence was double hearsay and inadmissible. DeFoor v. DeFoor, 290 Ga. 540, 722 S.E.2d 697 (2012) (decided under former O.C.G.A. § 24-3-1).

- Statements to a police officer by the victim in a prosecution for battery which were made three-and-one-half hours after the incident and which bore no mark of spontaneity or other such state of mind, undeniably free of conscious device or afterthought, were not part of the res gestae; as pure hearsay, the statements were inadmissible since the state did not show "necessity," to wit, that the declarant was unavailable and that the state made reasonable efforts to secure the presence of the declarant. Wilbourne v. State, 214 Ga. App. 371, 448 S.E.2d 37 (1994) (decided under former O.C.G.A. § 24-3-1).

- When the defendant did not tender the copies of the convictions which the defendant desired to have introduced to impeach the witnesses, but only made a proffer of the testimony of the clerk's representative, the state's objection based on the failure to produce the best evidence was properly sustained. The testimony of the deputy clerk as to the content of the records was not only not the best evidence, it was also hearsay. Lipscomb v. State, 194 Ga. App. 657, 391 S.E.2d 773 (1990), overruled on other grounds by Southall v. State, 2017 Ga. LEXIS 33 (Ga. 2017) (decided under former O.C.G.A. § 24-3-1).

Even assuming that the trial court erred in refusing to admit an employee of a power company to testify that she saw on her computer screen a particular entry reflecting that a work order had issued for the defendant's address because there had been a disruption in electrical service to the defendant's home the night before the victims were killed and that it had been reported to the power company that the electric meter had been disconnected, it did not constitute reversible error since there was other evidence that the electric meter had been removed from the house the night before the victims were killed, and the power company's data did not identify the persons who had removed the meter. Coleman v. State, 286 Ga. 291, 687 S.E.2d 427 (2009) (decided under former O.C.G.A. § 24-3-1).

- When defendant's statement that plans for dock construction were submitted was based on defendant's own personal knowledge, but defendant's statement regarding approval was hearsay, based on information from a source who told defendant about such approval, the trial court erred in considering this evidence. Clauss v. Plantation Equity Group, Inc., 236 Ga. App. 522, 512 S.E.2d 10 (1999) (decided under former O.C.G.A. § 24-3-1).

- With respect to a Chapter 11 bankruptcy in which the debtor, a business that served as an intermediary for clients desiring to effect exchanges of real property qualifying for tax-deferred treatment under 26 U.S.C. § 1031, held funds in bank accounts that resulted from certain real estate sales, two real estate exchange investors were not entitled to turnover of proceeds from sales of their real estate, as opposed to having their claims payable on the same basis as the other unpaid exchangers, because the written agreements between the investors and the debtor specifically and unequivocally defined the circumstances under which the debtor acquired cash proceeds and the use and disposition of the proceeds, but did not create an express trust under O.C.G.A. § 53-12-20. The parol evidence rule prevented the investors from trying to establish a trust based on communications that occurred prior to the agreements, which contained merger clauses. McCamy v. Kerr (In re Real Estate Exch. Servs.), Bankr. (Bankr. N.D. Ga. Oct. 9, 2009) (decided under former O.C.G.A. § 24-3-1).

That portion of the birth certificate which relates to the date of birth and the sex of the child, and certain facts concerning the name, race, place of residence, and other facts concerning the child's mother, is not obtained by the physician through hearsay and is clearly admissible. Posey v. State, 46 Ga. App. 290, 167 S.E. 340 (1932) (decided under former Civil Code 1910, § 5762).

- Challenged testimony was not inadmissible hearsay because: (1) neither the identification testimony by the victim, nor a detective regarding the alleged hearsay in obtaining the defendant's name, violated the defendant's rights to confrontation and cross-examination as neither witness actually repeated any alleged hearsay; (2) the evidence did not create a credibility problem that could only be cured by cross-examination, and the state did not offer the evidence to establish the truth of the matter asserted; and (3) the testimony explained why the police included the defendant's photograph in the line-up. Jennings v. State, 285 Ga. App. 774, 648 S.E.2d 105 (2007), cert. denied, No. S07C1576, 2007 Ga. LEXIS 667 (Ga. 2007) (decided under former O.C.G.A. § 24-3-1).

Homeowner countersued a contractor for fraud. Testimony by a subcontractor that the contractor's project supervisor told the subcontractor to increase the bid because the homeowner was "loaded" was not hearsay, because the testimony was not admitted to show the truth of the matters asserted, and the testimony was a circumstance relevant to the fraud claim. Lumpkin v. Deventer N. Am., Inc., 295 Ga. App. 312, 672 S.E.2d 405 (2008) (decided under former O.C.G.A. § 24-3-1).

Locksmith receipt indicating that defendant had a key made for a vehicle was not inadmissible hearsay evidence in the defendant's prosecution for, inter alia, trafficking in cocaine under O.C.G.A. § 16-13-31(a)(1) because the receipt was not offered as proof of what was asserted therein but as evidence that a piece of paper with the defendant's name on it was found in the same residence where cocaine and firearms were located, thereby linking the defendant circumstantially to the residence and the contraband; thus, the receipt was original evidence. Weems v. State, 295 Ga. App. 680, 673 S.E.2d 50 (2009) (decided under former O.C.G.A. § 24-3-1).

As an officer's testimony about a dispatcher's statement that two Hispanic males were involved in a firearm discharge was not offered for the truth of the dispatcher's statement, but to explain the officer's subsequent conduct, the testimony was not hearsay. Herieia v. State, 297 Ga. App. 872, 678 S.E.2d 548 (2009) (decided under former O.C.G.A. § 24-3-1).

Probate court did not abuse the court's discretion by admitting double hearsay from a witness who, when asked what the testator told the witness that the propounder had said about the caveator, responded, "that the caveator had taken his money and went to Florida and was not coming back" because the second level of alleged hearsay, what the propounder said to the testator about the caveator, was not hearsay, since it was not introduced for the truth of the matter asserted but rather for the effect it had on the testator; the caveator's theory of the case was that the statement by the propounder to the testator was not true, and the evidence was introduced to show where the testator got the misinformation. McDaniel v. McDaniel, 288 Ga. 711, 707 S.E.2d 60 (2011) (decided under former O.C.G.A. § 24-3-1).

- Counsel was not ineffective for failing to object to testimony that defendant was told that the declarant "didn't want any guy to take off with [the declarant's] 16-year-old daughter"; the testimony was not hearsay as the testimony was admitted to show that defendant was told that the girls were only 16. Ford v. State, 274 Ga. App. 695, 617 S.E.2d 262 (2005) (decided under former O.C.G.A. § 24-3-1).

Anything seen or heard by a witness in the presence of a defendant is admissible and does not constitute hearsay. Grindle v. State, 151 Ga. App. 164, 259 S.E.2d 166 (1979) (decided under former Code 1933, § 38-301).

- In a burglary case, the trial court did not err in allowing a receipt from one of the burglarized homes to be admitted into evidence and in allowing the occupant of the home to testify about the receipt; the receipt and the testimony were not offered to demonstrate who purchased the item or any of the circumstances surrounding that purchase, but to show that the defendant removed the receipt from the home, and the testimony did not constitute hearsay. Perez v. State, 284 Ga. App. 212, 643 S.E.2d 792 (2007) (decided under former O.C.G.A. § 24-3-1).

- In a dispute over two subdivision lots, the trial court did not err in admitting evidence that was cumulative to properly admitted evidence showing a legal property owner's record title, and the evidence was not hearsay, as alleged by a claimant who sought title to the property by prescription; further, the evidence was relevant to the issue of whether a claimant's adverse possession ripened into title by prescription. Smith v. Stacey, 281 Ga. 601, 642 S.E.2d 28 (2007) (decided under former O.C.G.A. § 24-3-1).

When a witness testified as to what the witness told another person, the statement was not hearsay. Holloman v. State, 167 Ga. App. 683, 307 S.E.2d 266 (1983) (decided under former O.C.G.A. § 24-3-1).

When facts testified to are proved without contravention by witness whose knowledge of the facts is immediate and personal, this is not hearsay, and the admission of like statements made by another, even if hearsay, does not under these circumstances constitute reversible error. Johnson v. State, 158 Ga. App. 183, 279 S.E.2d 483 (1981) (decided under former O.C.G.A. § 24-3-1).

- Trial court did not admit hearsay testimony by allowing a police officer to testify as to a conversation the officer had with defendant over the phone and to authenticate defendant's voice as being the voice of the person defendant talked to over the phone; voluntary, noncustodial, incriminating statements of defendants are admissible through the testimony of anyone who heard them. Ingram v. State, 268 Ga. App. 149, 601 S.E.2d 736 (2004) (decided under former O.C.G.A. § 24-3-1).

- Testimony by an investigating officer that after confiscating a codefendant's cell phone, the officer used the recently called function and discovered that the phone had been used to call a taxi service just prior to the robbery of a taxi driver was properly admitted as the evidence was not hearsay under former O.C.G.A. § 24-3-1 (see now O.C.G.A. §§ 24-8-801 and24-8-802) because the evidence was based on the officer's own veracity and competence. Troutman v. State, 297 Ga. App. 196, 676 S.E.2d 836 (2009) (decided under former O.C.G.A. § 24-3-1).

- With regard to a defendant's murder conviction, the trial court did not err by overruling a hearsay objection to testimony by a police sergeant regarding investigative work performed on the case since the sergeant participated in the investigation through desk work; using information gained by the police obtained telephone records and subscriber information to identify potential suspects; and testified on the stand to the steps the sergeant personally took that led to the identification of the defendant as a suspect. The testimony of the sergeant was not hearsay as the sergeant did not relay information told by other persons and the testimony was nothing more than a recitation of the sergeant's own actions. Henley v. State, 285 Ga. 500, 678 S.E.2d 884, cert. denied, 558 U.S. 1076, 130 S. Ct. 800, 175 L. Ed. 2d 559 (2009) (decided under former O.C.G.A. § 24-3-1).

- Although defendant contended that the waiver certificate was hearsay under former O.C.G.A. § 24-3-1 (see now O.C.G.A. §§ 24-8-801 and24-8-802) and improperly placed the defendant's character in issue, testimony was considered hearsay only if the witness was testifying to another party's statement in order to prove or demonstrate the truth of that statement; otherwise it was a verbal act and thus original evidence rather than hearsay. Therefore, defendant's hearsay objection was meritless because the investigator wrote the statement as well as read the statement into evidence, and thus, the statement was original evidence. Bynum v. State, 300 Ga. App. 163, 684 S.E.2d 330 (2009), cert. denied, No. S10C0225, 2010 Ga. LEXIS 300 (Ga. 2010) (decided under former O.C.G.A. § 24-3-1).

- Defendant was properly convicted of felony theft by shoplifting because a jury was permitted to consider a security agent's testimony regarding the value of the items stolen since the agent had personal knowledge of the prices of the subject merchandise from a cash register readout. Bell v. State, 262 Ga. App. 788, 586 S.E.2d 455 (2003) (decided under former O.C.G.A. § 24-3-1).

Testimony of investigating officer that "co-indictee's name is Lawrence" was not hearsay, but was a statement of undisputed fact, identifying for the jury that person to whom the officer was then talking. Jackson v. State, 209 Ga. App. 53, 432 S.E.2d 649 (1993) (decided under former O.C.G.A. § 24-3-1).

- In a termination of parental rights case, a parent failed to show that the testimony of the sole witness, a caseworker, was hearsay; although another employee worked on the case before the witness, the witness was the caseworker at the time of the hearing, and the record did not show that the witness lacked personal knowledge of the facts the witness testified to, most of which were memorialized in the trial court's previous orders, which were admitted without objection at the termination hearing. In the Interest of M.D.L., 285 Ga. App. 357, 646 S.E.2d 331 (2007) (decided under former O.C.G.A. § 24-3-1).

- Investigating officer's testimony that the officer investigated defendant based on information the officer received from an unnamed source did not constitute hearsay because the officer did not divulge the content of that information. Jenkins v. State, 268 Ga. 468, 491 S.E.2d 54 (1997), cert. denied, 523 U.S. 1029, 118 S. Ct. 1318, 140 L. Ed. 2d 481 (1998), overruled on other grounds by State v. Lane, 2020 Ga. LEXIS 98 (Ga. 2020) (decided under former O.C.G.A. § 24-3-1).

- Debtor's testimony, standing alone, was insufficient under O.C.G.A. § 24-9-66 to establish the fair and reasonable value of the debtor's car at the time the car was repossessed because the trial court was authorized to conclude that the debtor's "opinion" testimony about the value of the car two years earlier was based entirely upon hearsay and that, absent any evidence to show that the hearsay was reliable, the debtor failed to demonstrate a sufficient foundation for the debtor's conclusions; the debtor had no education or experience in the value of vehicles and the debtor presented no evidence of the price the debtor paid for the car, the condition of the car at the time the car was repossessed, the potential market for such cars, or other relevant factors to be considered in reaching a conclusion about the car's value. Sevostiyanova v. Tempest Recovery Servs., 307 Ga. App. 868, 705 S.E.2d 878 (2011) (decided under former O.C.G.A. § 24-3-1).

- Prosecution's questioning of a state's witness, summarizing incriminating testimony of previous state's witnesses for the witness, who was then asked whether that witness had, in fact, heard that testimony, was not objectionable on the ground that it sought to elicit hearsay, where the previous witnesses' testimony was offered under oath and was subject to cross-examination. King v. State, 185 Ga. App. 698, 365 S.E.2d 852, cert. denied, 185 Ga. App. 910, 365 S.E.2d 852 (1988) (decided under former O.C.G.A. § 24-3-1).

- When defendant in a prosecution for rape and aggravated sodomy pled guilty to a prior charge of aggravated sexual assault, admission of a transcript of the prior victim's testimony given at a hearing to compel the witness to testify was proper under the necessity exception to hearsay evidence. McBee v. State, 228 Ga. App. 16, 491 S.E.2d 97 (1997) (decided under former O.C.G.A. § 24-3-1).

Deposition testimony of driver and passenger involved in traffic accident was not hearsay in a suit wherein occupants of another vehicle sought damages from the driver of a truck parked in the emergency lane of a highway. Reid v. Midwest Transp., 270 Ga. App. 557, 607 S.E.2d 170 (2004) (decided under former O.C.G.A. § 24-3-1).

An official publication of the New York Stock Exchange, purporting to show the monthly average prices of cotton, which was introduced without objection in a hearing before an auditor and acted on by the auditor and the parties as if the quotations were correct, cannot, on a hearing by the judge of exceptions of fact to the auditor's report, be excluded on the ground that it was hearsay evidence. McKenzie v. Perdue, 67 Ga. App. 202, 19 S.E.2d 765, rev'd on other grounds, 194 Ga. 356, 21 S.E.2d 705 (1942) (decided under former Code 1933, § 38-301).

- Because the veracity of a witness's trial testimony was placed in issue, the witness's prior testimony was properly admitted as a prior consistent statement. Jackson v. State, 271 Ga. App. 278, 609 S.E.2d 207 (2005) (decided under former O.C.G.A. § 24-3-1).

Victim's statement to a doctor was properly admitted as a prior consistent statement as the victim testified at trial and was cross-examined by the defendant; the defendant had asserted in opening statement and the defendant implied during cross-examination that because the victim's parent would have been upset if the parent believed the victim were having consensual sex, the victim falsely testified that the defendant forced the victim to engage in sex, which testimony was designed to preserve the victim's relationship with the parent, and to continue the victim's receipt of food and shelter from the parent. Smith v. State, 282 Ga. App. 339, 638 S.E.2d 791 (2006) (decided under former O.C.G.A. § 24-3-1).

When a victim testified that the victim could not remember all of the details of a robbery, which occurred six years before the trial, it was not error to introduce the victim's prior consistent statement. The victim was a forgetful witness who testified at trial and who was cross-examined by the defendant. Williams v. State, 291 Ga. App. 279, 661 S.E.2d 658 (2008) (decided under former O.C.G.A. § 24-3-1).

After the victim's mother testified that the defendant admitted to the mother that the defendant molested the victim, the trial court did not err in allowing an investigator to testify that the mother had told the investigator the same thing because the mother testified at trial and was cross-examined, and the defendant placed the mother's veracity in issue during cross-examination by attempting to show that the mother had an improper motive for testifying against the defendant, a motive that developed after the mother made the prior consistent statement to the investigator. Davis v. State, 303 Ga. App. 799, 694 S.E.2d 381 (2010) (decided under former O.C.G.A. § 24-3-1).

Admission of an investigator's summary of a victim's prior consistent statement was not reversible error because the record contained other unchallenged testimony by witnesses other than the victim conveying the content of the victim's prior statement and that the victim's prior statement was consistent with the victim's trial testimony; it was not likely that the subsequent admission of the victim's statement itself contributed to the guilty verdict, and by the time the statement was read, any bolstering effect of the repetitive nature of the prior statement had occurred without objection. Arnold v. State, 305 Ga. App. 45, 699 S.E.2d 77 (2010) (decided under former O.C.G.A. § 24-3-1).

Trial court did not err by admitting prior consistent statements of the victim and the defendant's son in videotaped interviews that also included comments by the interviewer because nothing in the record demonstrated that the portion of the videotape that the trial court ruled would not be presented for the jury was played for the jury, and the defendant's counsel made no objection after the videotape was played. Wade v. State, 305 Ga. App. 382, 700 S.E.2d 827 (2010), cert. denied, 131 S. Ct. 3066, 180 L. Ed. 2d 893 (2011) (decided under former O.C.G.A. § 24-3-1).

- To the extent that In re C.G., 261 Ga. App. 814 (2003) finds that a surveillance videotape merely depicting nonverbal conduct constitutes a hearsay statement, it is hereby disapproved. Hammock v. State, 311 Ga. App. 344, 715 S.E.2d 709 (2011) (decided under former O.C.G.A. § 24-3-1).

Testimony concerning a surveillance videotape was not hearsay because the witnesses did not offer any testimony about what someone else said or wrote outside of court, but rather, the witnesses testified about the witnesses' personal observations of the conduct that appeared on the videotape; because the testimony did not ask the jury to assume the truth of out-of-court statements made by others, and instead, the value of the testimony rested on the witnesses' own veracity and competence, the testimony was not hearsay. Hammock v. State, 311 Ga. App. 344, 715 S.E.2d 709 (2011) (decided under former O.C.G.A. § 24-3-1).

- In a prosecution for armed robbery and related offenses, the trial court properly allowed hearsay evidence of identification. It was not error to allow a police officer to testify as to who the victims identified in the photo arrays as a law enforcement officer could testify to a pre-trial identification if the person who actually made the identification testified at trial and was subject to cross-examination. Monfort v. State, 281 Ga. App. 29, 635 S.E.2d 336 (2006) (decided under former O.C.G.A. § 24-3-1).

- Because the informant's recorded statements provided context for the defendant's portion of the telephone conversation, the informant's statements were not hearsay as the statements entailed admissions of a party opponent, and the Confrontation Clause did not bar the use of testimonial statements for purposes other than establishing the truth of the matter asserted, the trial court did not err in admitting the recording. Jones v. State, 339 Ga. App. 95, 791 S.E.2d 625 (2016).

- In a trial for theft by taking, it was error to preclude a witness from giving testimony that potentially would have corroborated the defendant's explanation for the defendant's possession of a stolen trailer on the ground that the testimony was hearsay under former O.C.G.A. § 24-3-1(a) (see now O.C.G.A. §§ 24-8-801 and24-8-802). The value of the evidence rested upon the veracity of the witness, not the veracity of the person referred to by the witness; furthermore, the error was not harmless, as the unsatisfactoriness of the defendant's explanation for possessing the trailer was central to the conviction. Boivin v. State, 298 Ga. App. 411, 680 S.E.2d 415 (2009) (decided under former O.C.G.A. § 24-3-1).

Trial court did not err in refusing to grant a mistrial on the ground that an eyewitness's testimony was based on hearsay because to the extent the testimony exposed prior difficulties between the codefendants and the victim, the testimony was cumulative of other testimony that the defendant and the codefendant threatened the victim the day before the shooting; the other evidence implicating the defendant in the shooting made it highly probable that the hearsay testimony did not contribute to the verdict. Mathis v. State, 291 Ga. 268, 728 S.E.2d 661 (2012) (decided under former O.C.G.A. § 24-3-1).

4. Examples Not Within Rule

Ownership of clothing.

- If a person testifies that certain articles of clothing exhibited to the person are similar to those worn by a suspect in a murder case, whom the accused is attempting to identify as the guilty party, it is proper to exclude hearsay testimony identifying the ownership of the clothing as being that of the suspect; this evidence does not come within the exception to the hearsay evidence rule. Bryant v. State, 197 Ga. 641, 30 S.E.2d 259 (1944) (decided under former Code 1933, § 38-301).

Objections

1. Specificity of Objections

General rule requires that an objection to testimony point out in detail why the testimony is subject to the objection made. Jones v. State, 154 Ga. App. 806, 270 S.E.2d 201 (1980) (decided under former Code 1933, § 38-301).

- When an objection is made to evidence as a whole or en bloc, a part of which is not subject to the objection, the entire general objection fails. Jones v. State, 154 Ga. App. 806, 270 S.E.2d 201 (1980) (decided under former Code 1933, § 38-301).

2. Admission over Objection

Illegal admission over objection requires new trial.

- If, by the introduction of hearsay evidence, it is probable that the jury might have been led to believe that the jury could consider it as sufficient to establish the fact stated, then if that fact be material, and timely objection be urged, a new trial should result. Glisson v. State, 57 Ga. App. 169, 194 S.E. 877 (1938) (decided under former Code 1933, § 38-301).

Illegal admission over proper objection of hearsay evidence not embraced within any of the exceptions, relating to a vital issue, as to which the other evidence is in conflict, which admission is prejudicial to the losing party, is cause for a new trial. Fuller v. State, 196 Ga. 237, 26 S.E.2d 281 (1943) (decided under former Code 1933, § 38-301).

Inadmissible hearsay which is received over objection does not require a new trial if it appears that the evidence could not have affected the verdict because other evidence by a witness with immediate and personal knowledge is sufficient to establish the fact in question. Glass v. State, 235 Ga. 17, 218 S.E.2d 776 (1975) (decided under former Code 1933, § 38-301).

- With regard to a defendant's convictions for malice murder and other crimes, the trial court did not err in admitting hearsay testimony of a witness who testified about prior difficulties between the defendant and the victim, over the hearsay objection of trial counsel, under the necessity exception to the hearsay rule; considering the totality of the circumstances, the trial court did not abuse the court's discretion in permitting the testimony under the necessity exception since the witness in question testified that the victim and the witness were roommates for a while, were teammates on a college track team, and had become close enough in the course of their friendship to have shared intimate details of their lives and relationships, including the witness's observations of bruises on the victim, which the victim told the witness were inflicted by the defendant. Culmer v. State, 282 Ga. 330, 647 S.E.2d 30 (2007) (decided under former O.C.G.A. § 24-3-1).

- In a plumbing company's action to recover for septic services performed, the company failed to object to the homeowners' affidavits supporting the homeowners' defense of fraud by the company and, therefore, the company waived any objection to any alleged hearsay under O.C.G.A. § 24-8-802. Shuford v. Aames Plumbing & Heating, Inc., 327 Ga. App. 844, 761 S.E.2d 395 (2014).

Under the new rules of evidence, an objection to hearsay evidence not raised at the summary judgment stage until a party's brief on appeal is not the required contemporaneous objection. Patterson v. Kevon, LLC, 304 Ga. 232, 818 S.E.2d 575 (2018).

- In a dispute between the buyer and seller of a gas station, the seller failed to preserve the seller's argument regarding alleged hearsay evidence by failing to object at trial. The court rejected the seller's contention that the old evidence code applied because the document in question was generated in 2012, and the trial occurred in 2018. Spirits, Inc. v. Patel, 350 Ga. App. 153, 828 S.E.2d 381 (2019).

RESEARCH REFERENCES

ALR.

- Admissibility of testimony concerning extrajudicial statements made to, or in presence of, witness through interpreter - state cases, 97 A.L.R.6th 567.

Admissibility of testimony concerning extrajudicial statements made to, or in presence of, witness through an interpreter - federal cases, 91 A.L.R. Fed. 2d 187.