2021 Georgia Code
Title 24 - Evidence
Chapter 8 - Hearsay
Article 1 - General Provisions
§ 24-8-801. Definitions

As used in this chapter, the term:

1. "Statement" means:
   1. An oral or written assertion; or
   2. Nonverbal conduct of a person, if it is intended by the person as an assertion.
2. "Declarant" means a person who makes a statement.
3. "Hearsay" means a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.
4. "Hearsay" shall be subject to the following exclusions and conditions:
   1. Prior statement by witness.
      1. An out-of-court statement shall not be hearsay if the declarant testifies at the trial or hearing, is subject to cross-examination concerning the statement, and the statement is admissible as a prior inconsistent statement or a prior consistent statement under Code Section 24-6-613 or is otherwise admissible under this chapter.
      2. If a hearsay statement is admitted and the declarant does not testify at the trial or hearing, other out-of-court statements of the declarant shall be admissible for the limited use of impeaching or rehabilitating the credibility of the declarant, and not as substantive evidence, if the other statements qualify as prior inconsistent statements or prior consistent statements under Code Section 24-6-613.
      3. A statement shall not be hearsay if the declarant testifies at the trial or hearing and is subject to cross-examination concerning the statement, and the statement is one of identification of a person made after perceiving the person; and
   2. Admissions by party-opponent. Admissions shall not be excluded by the hearsay rule. An admission is a statement offered against a party which is:
      1. The party's own statement, in either an individual or representative capacity;
      2. A statement of which the party has manifested an adoption or belief in its truth;
      3. A statement by a person authorized by the party to make a statement concerning the subject;
      4. A statement by the party's agent or employee, but not including any agent of the state in a criminal proceeding, concerning a matter within the scope of the agency or employment, made during the existence of the relationship; or
      5. A statement by a coconspirator of a party during the course and in furtherance of the conspiracy, including a statement made during the concealment phase of a conspiracy. A conspiracy need not be charged in order to make a statement admissible under this subparagraph.

         The contents of the statement shall be considered but shall not alone be sufficient to establish the declarant's authority under subparagraph (C) of this paragraph, the agency or employment relationship and scope thereof under subparagraph (D) of this paragraph, or the existence of the conspiracy and the participation therein of the declarant and the party against whom the statement is offered under subparagraph (E) of this paragraph.

5. "Public office" means:
   1. Every state department, agency, board, bureau, commission, division, public corporation, and authority;
   2. Every county, municipal corporation, school district, or other political subdivision of this state;
   3. Every department, agency, board, bureau, commission, authority, or similar body of each such county, municipal corporation, or other political subdivision of this state; and
   4. Every city, county, regional, or other authority established pursuant to the laws of this state.
6. "Public official" means an elected or appointed official.
7. "Public record" means information that is inscribed on a tangible medium or that is stored in an electronic or other medium and is retrievable in perceivable form and created in the course of the operation of a public office.

(Code 1981, §24-8-801, enacted by Ga. L. 2011, p. 99, § 2/HB 24.)

- Failure to deny averments in pleading as constituting admission, § 9-11-8(d).

Definitions that apply to this article; exclusions from hearsay, Fed. R. Evid. 801.

- For article discussing exceptions to the hearsay rule and advocating elimination of the res gestae exception, see 5 Mercer L. Rev. 257 (1954). For article, "Evidence from Computers," see 8 Ga. L. Rev. 562 (1974). For article, "An Analysis of Georgia's Proposed Rules of Evidence," see 26 Ga. St. B.J. 173 (1990). For article, "The New 'Necessity Exception' to the Hearsay Rule in Georgia: A New Rule of Inclusion?," see 16 Ga. St. U.L. Rev. 573 (2000). For article, "Evidence," see 53 Mercer L. Rev. 281 (2001). For article, "Wills, Trusts & Administration of Estates," see 53 Mercer L. Rev. 499 (2001). For annual survey on evidence, see 65 Mercer L. Rev. 125 (2013). For annual survey on criminal law, see 70 Mercer L. Rev. 63 (2018). For article, "Parallel Proceedings,” see 25 Ga. St. B.J. 20 (Feb. 2020). For note, "Lilly v. Virginia: Answering the Williamson Question - Is the Statement Against Penal Interest Exception 'Firmly Rooted' Under Confrontation Clause Analysis?," see 51 Mercer L. Rev. 1343 (2000). For comment on Brewer v. Henson, 96 Ga. App. 501, 100 S.E.2d 661 (1957), holding that statements made by patient to physician which are not equivalent to spontaneous and voluntary expressions of present pain and suffering are not admissible as evidence, see 21 Ga. B.J. 97 (1958). For comment on Moore v. Atlanta Transit Sys., 105 Ga. App. 70, 123 S.E.2d 693 (1961), see 14 Mercer L. Rev. 445 (1963). For comment as to admissibility of evidence of a criminal conviction in a civil action arising out of the same factual situation, in light of Hurtt v. Stirone, 416 Pa. 493, 206 A.2d 624 (1965), see 16 Mercer L. Rev. 464 (1965). For comment on Dutton v. Evans, 400 U.S. 74, 91 S. Ct. 210, 27 L. Ed. 2d 213 (1970), and Georgia's coconspirator exception to the hearsay rule, see 22 Mercer L. Rev. 791 (1971). For comment on Argonaut Ins. Co. v. Allen, 123 Ga. App. 741, 182 S.E.2d 508 (1971), upholding admission of psychiatric opinion based on subjective declarations of patient, see 8 Ga. St. B.J. 554 (1972). For comment, "24-3-2: Evidence to Explain Conduct and Ascertain Motive Gets Disciplined," see 36 Mercer L. Rev. 733 (1985).

ANALYSIS

• General Consideration
• Admissibility
• Admissions and Confessions
• a. In General
• b. Admissions
• c. Confessions
• d. Guilty Pleas
• e. Instructions
• a. In General
• b. Parties
• c. Defendants in Execution in Claim Cases
• d. Examples
• a. In General
• b. Circumstances Requiring Response
• c. Procedural Considerations
• d. Illustrations and Applications
• a. In General
• b. Proving Agency
• Declarations of Conspirators
• a. In General
• b. Proof of Conspiracy
• a. In General
• b. Termination of Conspiracy
• a. Order of Proof
• b. Duty of Jury
• c. Instructions
• Inadmissible Hearsay

OPINIONS OF THE ATTORNEY GENERAL

Editor's notes.

- In light of the similarity of the statutory provisions, opinions under former Code 1933, § 38-301 are included in the annotations for this Code section.

- Although computer print-out sheets are generally classified as hearsay and to be admissible into evidence, computer print-outs must fall within an exception to the well-known hearsay rule, subject to the discretion of the court, computer print-out sheets or records stored in an electronic computer may be admissible into evidence when such are permanent records made in the regular course of business. 1973 Op. Att'y Gen. No. 73-91 (decided under former Code 1933, § 38-301).

RESEARCH REFERENCES

Am. Jur. 2d.

- 3 Am. Jur. 2d, Agency, § 347. 29 Am. Jur. 2d, Evidence, §§ 668, 671. 29A Am. Jur. 2d, Evidence, §§ 715 et seq., 767, 769, 770, 814, 819 et seq., 828, 871 et seq.

- 3 C.J.S., Agency, § 550 et seq. 31A C.J.S., Evidence, §§ 282 et seq., 376 et seq., 405 et seq., 439 et seq., 476.

- Competency of agent, with whom transaction by person since deceased was had, to testify adversely to estate, 21 A.L.R. 928; 54 A.L.R. 264.

Confession by one who has been subjected to or threatened with physical suffering, 24 A.L.R. 703.

Character and sufficiency of evidence to show that letter was mailed, 25 A.L.R. 9; 86 A.L.R. 541.

Admissibility in favor of writer of unanswered letter not part of mutual correspondence, 55 A.L.R. 460.

Extrajudicial admissions by principal as evidence against surety, 60 A.L.R. 1500.

Evidence as to threats made to keep witness away from criminal trial, 62 A.L.R. 136.

Admissibility of secondary evidence of incriminating document in possession of defendant, 67 A.L.R. 77.

Admissibility of declarations by one involved in an accident in relation to his employment by or agency for other person, 67 A.L.R. 170; 150 A.L.R. 623.

Concession, admission, or statement by defendant's attorney in criminal case as obviating necessity of introducing evidence on the point, 70 A.L.R. 94.

Admissions of partner as to past transactions or events as evidence against firm or other partner, 73 A.L.R. 447.

Admissibility of statements of alleged agent for the purpose of showing that other party dealt with him as agent and not as principal, as distinguished from the purpose of showing the existence or extent of agency, 80 A.L.R. 604.

Admissibility of inculpatory statements made in the presence of accused, and not denied or contradicted by him, 80 A.L.R. 1235; 115 A.L.R. 1510.

Admissibility of statements or declarations of plaintiff's spouse in an action for alienation of affections for the purpose of showing his or her mental state, 82 A.L.R. 825.

Admissibility of declarations of grantor or transferrer on issue as to whether conveyance or transfer was in fraud of creditors, 83 A.L.R. 1446.

Effect of silence of surety or endorser after knowledge or notice of facts relied upon as releasing him, 101 A.L.R. 1310.

Admissibility of admissions against title to tangible personal property made by one subsequent to executing chattel mortgage thereon, 106 A.L.R. 1296.

Admissibility on issue of negligence or contributory negligence of statements warning one of danger, 125 A.L.R. 645.

Extrajudicial statements by witness who is subject to cross-examination as evidence of facts to which they relate, 133 A.L.R. 1454.

Admissibility of oral or written statement by deceased as to fact or terms of an antenuptial or postnuptial agreement which cannot be found, 140 A.L.R. 1133.

Extrajudicial declarations of agent as admissible in action against principal for personal injuries for purpose of showing knowledge of relevant fact or condition at or prior to time of injury, 141 A.L.R. 704.

Admissibility of evidence of complaint or details of complaint by alleged victim of rape or other similar offense as affected by fact that she is not a witness or is incompetent to testify because of age or other reason, 157 A.L.R. 1359.

Silence upon hearing statement by spouse as evidence of admission in civil case, 158 A.L.R. 465.

Extrajudicial declaration of commission of criminal act as admissible in evidence where declarant is a witness or available to testify, 167 A.L.R. 394.

Binding effect of party's own unfavorable testimony, 169 A.L.R. 798.

Competence, as against principal, of statements by agent to prove scope, as distinguished from fact, of agency, 3 A.L.R.2d 598.

Admissibility of evidence that defendant in negligence action has paid third persons on claims arising from the same transaction or incident as plaintiff's claim, 20 A.L.R.2d 304.

Admissibility, in prosecution for bribery or accepting bribes, of evidence tending to show the commission of other bribery or acceptance of bribe, 20 A.L.R.2d 1012.

Admissibility and probative value of admissions of fault by agent on issue of principal's secondary liability, where both are sued, 27 A.L.R.3d 966.

Admissibility in homicide prosecution for purpose of showing motive of evidence as to insurance policies on life of deceased naming accused as beneficiary, 28 A.L.R.2d 857.

Admissibility, in prosecution for illegal sale of intoxicating liquor, of other sales, 40 A.L.R.2d 817.

Admissibility of records or report of welfare department or agency relating to payment to or financial condition of particular person, 42 A.L.R.2d 752.

Admissibility of advertisements, brochures, catalogs, and the like as containing admissions by a litigant contrary to a position taken by him, 44 A.L.R.2d 1027.

Admissibility of subsequent declarations of settlor to aid interpretation of trust, 51 A.L.R.2d 820.

Admissibility and weight of party's admissions as to tort occurring during his absence, 54 A.L.R.2d 1069.

Admissibility of evidence of reputation or declaration as to matter of public interest, 58 A.L.R.2d 615.

Admissibility of evidence of party's silence, as implied or tacit admission, when a statement is made by another in his presence regarding circumstances of an accident, 70 A.L.R.2d 1099.

Admissibility on behalf of accused in homicide case of evidence that killing was committed at victim's request, 71 A.L.R.2d 617.

Admissibility, on behalf of one of multiple defendants in accident case, of admission against interest made out of plaintiff's presence by another defendant to a fourth person, 73 A.L.R.2d 1180.

Admissibility and weight of surveys or polls of public or consumers' opinion, recognition, preference, or the like, 76 A.L.R.2d 619, 98 A.L.R. Fed. 20.

Admissibility of inculpatory statements made in presence of accused to which he refuses to reply on advice of counsel, 77 A.L.R.2d 463.

Consideration, in determining facts, of inadmissible hearsay evidence introduced without objection, 79 A.L.R.2d 890.

Admission of liability as affecting admissibility of evidence as to the circumstances of accident on issue of damages in a tort action for personal injury, wrongful death, or property damage, 80 A.L.R.2d 1224.

Nonverbal reaction to accusation, other than silence alone, as constituting adoptive admission under hearsay rule, 87 A.L.R.3d 706.

Admissibility on behalf of accused of evidence of similar acts or transactions tending to rebut fraudulent intent, 90 A.L.R.2d 903.

Admissibility in civil action, apart from res gestae, of lay testimony as to another's expressions of pain, 90 A.L.R.2d 1071.

Admissibility of statements of coconspirators made after termination of conspiracy and outside accused's presence, 4 A.L.R.3d 671.

Impeachment of witness with respect to intoxication, 8 A.L.R.3d 749.

Admissibility in evidence, in automobile negligence action, of charts showing braking distance, reaction times, etc., 9 A.L.R.3d 976.

Propriety of considering hearsay or other incompetent evidence in establishing probable cause for issuance of search warrant, 10 A.L.R.3d 359.

Admissibility of hearsay evidence as to comparable sales of other land as basis for expert's opinion as to land value, 12 A.L.R.3d 1064.

Admissibility of evidence of habit, customary behavior, or reputation as to care of pedestrian on question of his care at time of collision with motor vehicle giving rise to his injury or death, 28 A.L.R.3d 1293.

Grand jury: admission of hearsay evidence incompetent at trial as affecting, in absence of statutory regulation, validity of indictment or conviction, 37 A.L.R.3d 612.

Admissibility of physician's testimony as to patients' statements or declaration, other than res gestae, during medical examination, 37 A.L.R.3d 778.

Necessity and sufficiency of independent evidence of conspiracy to allow admission of extrajudicial statements of coconspirators, 46 A.L.R.3d 1148.

Admissibility of newspaper article as evidence of the truth of the facts stated therein, 55 A.L.R.3d 663.

Sufficiency of identification of participants as prerequisite to admissibility of telephone conversation in evidence, 79 A.L.R.3d 79.

Admissibility of evidence to establish oral antenuptial agreement, 81 A.L.R.3d 453.

Admissibility of hypnotic evidence at criminal trial, 92 A.L.R.3d 442; 77 A.L.R.4th 927.

Admissibility of former testimony of nonparty witness, present in jurisdiction, who refuses to testify at subsequent trial without making claim of privilege, 92 A.L.R.3d 1138.

Evidence: admissibility of memorandum of telephone conversation, 94 A.L.R.3d 975.

Denial of recollection as inconsistent with prior statement so as to render statement admissible, 99 A.L.R.3d 934.

Admissibility of testimony of expert, as to basis of his opinion, to matters otherwise excludible as hearsay--state cases, 89 A.L.R.4th 456.

Admissibility of tape recording or transcript of "911" emergency telephone call, 3 A.L.R.5th 784.

Admissibility in evidence of composite picture or sketch produced by police to identify offender, 23 A.L.R.5th 672.

Sufficiency of hearsay evidence in probation revocation hearings, 21 A.L.R.6th 771.

Construction and application of uniform rule of evidence 803(17), providing hearsay exception for market reports, and commercial publications, 54 A.L.R.6th 593.

What constitutes similar motive for purposes of Rule 804(b)(1) of Federal Rules of Evidence, excepting such testimony from hearsay rule if party against whom such testimony is offered had opportunity and "similar motive" to develop testimony, 138 A.L.R. Fed 367.

When is witness "unavailable" for purposes of admission of evidence under Rule 804 of Federal Rules of Evidence, providing hearsay exception where declarant is unavailable, 174 A.L.R. Fed. 1

Admissibility of party's own statement under Rule 801(d)(2)(a) of the Federal Rules of Evidence, 191 A.L.R. Fed. 27.

Construction and application of Fed. Rules Evid. Rule 804(b)(6), 28 U.S.C.A., hearsay exception based on unavailable witness's wrongfully procured absence, 193 A.L.R. Fed. 703.

Hearsay objections to admission of text messages or testimony thereof, 10 A.L.R.7th 4.