2021 Georgia Code
Title 24 - Evidence
Chapter 8 - Hearsay
Article 1 - General Provisions
§ 24-8-807. Residual Exception

A statement not specifically covered by any law but having equivalent circumstantial guarantees of trustworthiness shall not be excluded by the hearsay rule, if the court determines that:

1. The statement is offered as evidence of a material fact;
2. The statement is more probative on the point for which it is offered than any other evidence which the proponent can procure through reasonable efforts; and
3. The general purposes of the rules of evidence and the interests of justice will best be served by admission of the statement into evidence.

   However, a statement may not be admitted under this Code section unless the proponent of it makes known to the adverse party, sufficiently in advance of the trial or hearing to provide the adverse party with a fair opportunity to prepare to meet it, the proponent's intention to offer the statement and the particulars of it, including the name and address of the declarant.

(Code 1981, §24-8-807, enacted by Ga. L. 2011, p. 99, § 2/HB 24.)

- Residual exception, Fed. R. Evid. 807.

JUDICIAL DECISIONS

Editor's notes.

- In light of the reenactment of this Title, effective January 1, 2013, the reader is advised to consult the annotations following Code Section24-8-804 for notes on admissibility of statements by unavailable or deceased declarants. 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.

- Trial court did not properly apply O.C.G.A. § 24-8-807 because in analyzing whether a witness's statement to police had sufficient guarantees of trustworthiness the court primarily relied on cases decided under the former evidence code, which was no longer applicable. State v. Holmes, 304 Ga. 524, 820 S.E.2d 26 (2018).

- Under former O.C.G.A. § 24-3-1, hearsay evidence was admitted in specified cases from necessity. There were three prerequisites for admission of hearsay because of necessity: (1) necessity; (2) particularized guarantees of trustworthiness; and (3) the evidence must be relevant to a material fact and more probative on that material fact than other evidence that may be procured or offered. Booth v. State, 264 Ga. App. 393, 590 S.E.2d 789 (2003) (decided under former O.C.G.A. § 24-3-1).

Trial counsel was not ineffective for failing to object to the admission of the victim's hearsay statements to the extent that the statements expressed the victim's opinions regarding the defendant's racial and cultural bias because trial counsel's vigorous efforts to exclude the totality of the victim's hearsay statements as ineligible for admission under the necessity exception were successful in large measure and greatly narrowed the scope of the hearsay evidence that was ultimately admitted; and the defendant could not establish prejudice from that testimony as it was cumulative of other evidence the state adduced regarding the defendant's racial and cultural bias, including, but not limited to, the damning testimony by the jailhouse informant. Rai v. State, 297 Ga. 472, 775 S.E.2d 129 (2015)(decided under former O.C.G.A. § 24-3-1(b)).

Victim's aunt, grandmother, and sister were allowed to testify about the defendant's disapproval of the relationship of the victim and the defendant's son based on racial and cultural differences, and the fact that the victim and the defendant's son moved to Atlanta to get away from the defendant and the defendant's family because the victim was unavailable to testify; the nature and extent of the defendant's negativity toward the victim, the defendant's daughter-in-law, were essential to explaining the defendant's motivation in orchestrating the victim's murder; and the statements bore sufficient indicia of trustworthiness, in that the statements were made to family members who each shared a close and confidential relationship with the victim. Rai v. State, 297 Ga. 472, 775 S.E.2d 129 (2015)(decided under former O.C.G.A. § 24-3-1(b)).

The two underlying reasons for any exception to the hearsay rule are a necessity for the exception and a circumstantial guaranty of the trustworthiness of the offered evidence which is that there must be something present which the law considers a substitute for the oath of the declarant and the declarant's cross-examination by the party against whom the hearsay is offered. Gale v. State, 138 Ga. App. 261, 226 S.E.2d 264 (1976); Irby v. Brooks, 246 Ga. 794, 273 S.E.2d 183 (1980), overruled on other grounds, Swain v. Citizens & S. Bank, 258 Ga. 547, 372 S.E.2d 423 (1988) (decided under former Code 1933, § 38-801).

- To meet the necessity exception, the state had to show that the declarant was unavailable to testify and that it made reasonable efforts to locate the declarant and secure the declarant's presence. Holmes v. State, 271 Ga. 138, 516 S.E.2d 61 (1999) (decided under former O.C.G.A. § 24-3-1).

Trial court did not abuse the court's discretion in deeming a witness to be unavailable when the evidence showed that investigators for both the state and a codefendant could not locate the witness after diligent and extensive efforts conducted over a month and a half before trial. Holmes v. State, 271 Ga. 138, 516 S.E.2d 61 (1999) (decided under former O.C.G.A. § 24-3-1).

In a malice murder prosecution, statements made by the victim in the months before death were admissible under the necessity exception to hearsay as the statements were made to investigating police officers shortly after the events involving defendant and the victim. Peterson v. State, 274 Ga. 165, 549 S.E.2d 387 (2001) (decided under former O.C.G.A. § 24-3-1).

Trial court properly excluded a statement by the injured passenger because the statement was an unsworn statement given to an insurance agent and constituted hearsay and did not fall under an exception since the passenger's state of mind was not at issue, the statement did not meet the foundational requirements for a regularly conducted activity, was not a public record, and did not fall under the residual exception. Maloof v. MARTA, 330 Ga. App. 763, 769 S.E.2d 174 (2015).

- "Necessity" exception to the hearsay rule, set forth in former O.C.G.A. § 24-3-1, applied only when the witness was unavailable, usually because of death or in cases in which the witness could not be compelled to testify, as in the case of a wife who could not be compelled to testify against her husband. Glisson v. State, 188 Ga. App. 152, 372 S.E.2d 462 (1988) (decided under former O.C.G.A. § 24-3-1).

- Necessity exception most commonly applied when the out-of-court declarant was unavailable to testify because of death or the exercise of a privilege not to testify, and the circumstances surrounding the statement provided a guaranty of trustworthiness, not when the declarant was unavailable because the declarant failed to qualify as a competent witness. Shaver v. State, 199 Ga. App. 428, 405 S.E.2d 281, cert. denied, 199 Ga. App. 907, 405 S.E.2d 281 (1991) (decided under former O.C.G.A. § 24-3-1).

- Admitting the victim's hearsay statements pursuant to a residual exception to the hearsay rule was not reversible error because the victim's statements to the victim's mother during the victim's hospitalization were trustworthy given the victim's close relationship with the mother. Tanner v. State, 301 Ga. 852, 804 S.E.2d 377 (2017).

- Death or unavailability of the declarant cannot alone satisfy the necessity component without allowing the exception to swallow the rule; additionally, the proponent of the evidence must show that the statement is relevant to a material fact and that the statement is more probative on that material fact than other evidence that may be procured and offered. Chapel v. State, 270 Ga. 151, 510 S.E.2d 802 (1998) (decided under former O.C.G.A. § 24-3-1).

Testimony by a friend of the victim, that the victim planned to meet with defendant, was not sufficiently trustworthy to be admissible under the "necessity " exception to the hearsay rule in light of the fact that the victim made a contradictory statement to the victim's son as to where the victim was going on the night the victim was killed. State v. Mallory, 261 Ga. 625, 409 S.E.2d 839 (1991), overruled on other grounds by State v. Lane, 2020 Ga. LEXIS 98 (Ga. 2020). But see Clark v. State, 271 Ga. 6, 515 S.E.2d 155 (1999) (decided under former Code 1933, § 38-505).

Requirement of particularized guarantees of trustworthiness has not been met as to witnesses who had known the deceased victim for only a short time before the deceased began confiding in them about the problems in the marriage to defendant. Slakman v. State, 272 Ga. 662, 533 S.E.2d 383 (2000) (decided under former O.C.G.A. § 24-3-1).

Trial court did not err in admitting a friend's testimony as to the statements the murder victim made to the friend about the murder victim's relationship with defendant and the way defendant treated the murder victim since sufficient guarantees of trustworthiness existed to warrant admission of that testimony; the evidence showed that the friend and the murder victim worked together for a year and that the murder victim confided in the friend on a daily basis about the details of the murder victim's relationship with defendant, and, thus, the testimony was admissible under the necessity exception to the rule prohibiting hearsay evidence because the declarant was deceased and the testimony was more probative on the issues of motive and intent than other evidence offered at trial. Brinson v. State, 276 Ga. 671, 581 S.E.2d 548 (2003) (decided under former O.C.G.A. § 24-3-1).

Trial court did not err in admitting the testimony of a long-time friend of the deceased wife about prior difficulties between the deceased wife and defendant as such testimony was admissible under the necessity exception to the hearsay rule; the deceased wife was unavailable, the testimony contained particular guarantees of trustworthiness, and the testimony was relevant to the relationship between the deceased wife and defendant, and was more probative of that than other evidence that could be procured and offered. Rowe v. State, 276 Ga. 800, 582 S.E.2d 119 (2003) (decided under former O.C.G.A. § 24-3-1).

Admission of victim's statement made two months before the victim's death was not error since it was established that the declarant was unavailable due to death; that the declarant's statement regarding gang membership was relevant to a material fact - the motive for the shooting; and that the most probative evidence of the declarant's gang membership was the declarant's admission of that fact. Clark v. State, 271 Ga. 6, 515 S.E.2d 155 (1999) (decided under former O.C.G.A. § 24-3-1).

Although the statements were not dying declarations, statements by the murdered victim to the victim's friends regarding death threats made by the victim's spouse carried sufficient indicia of reliability to be admissible. Morris v. State, 275 Ga. 601, 571 S.E.2d 358 (2002) (decided under former O.C.G.A. § 24-3-1).

Trial court did not err in allowing a deceased witness's sister to testify, pursuant to the necessity exception to the hearsay rule, regarding statements the decedent made to the sister prior to the murder, which implicated the defendant, as the decedent was unavailable, the statements were relevant to show motive, and the statements were trustworthy because the decedent was confiding in the sister regarding a fear of being associated with the robbery defendant committed. Grimes v. State, 280 Ga. 363, 628 S.E.2d 580 (2006) (decided under former O.C.G.A. § 24-3-1).

Admission of statements made by the defendant's cousin prior to the cousin's murder were proper under the necessity exception to the hearsay rule pursuant to former O.C.G.A. § 24-3-1(b) because the statements indicated that the cousin was going to tell the defendant to move out of a shared apartment and the statements were probative on the issues of the defendant's motive and intent; the statements were trustworthy because the statements were made to the cousin's family members, whom the cousin confided in. Jackson v. State, 284 Ga. 826, 672 S.E.2d 640 (2009) (decided under former O.C.G.A. § 24-3-1).

Trial court did not abuse the court's discretion by admitting into evidence statements the victim made to a witness, the victim's close friend, regarding a missing key because the state offered statements at issue as an explanation for the lack of evidence of forced entry to the victim's home and did not predicate admission of that testimony on the witness's credibility as a witness. Tyner v. State, 305 Ga. 326, 825 S.E.2d 129 (2019).

- Trial court did not abuse the court's discretion in admitting a victim's statements to the victim's close friends as to defendant's threats against the victim, defendant's physical and mental abuse, and other difficulties under the necessity exception to the hearsay rule as the victim was dead, the statements were relevant to defendant's intent, motive, and state of mind, and the statements had particularized guarantees of trustworthiness. 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).

Trial court did not err by allowing the victim's parent to testify that the victim told the parent that the defendant had threatened to kill the victim if the victim sought a divorce under the necessity exception to the hearsay rule as: (1) the victim was the declarant; (2) the victim was unavailable because the victim had been murdered; (3) the victim's statement was uniquely relevant to show the defendant's motive, intent, and bent of mind; and (4) the victim's statement was trustworthy because the victim made the statement while confiding in the victim's parent. Thomason v. State, 281 Ga. 429, 637 S.E.2d 639 (2006) (decided under former O.C.G.A. § 24-3-1).

- When statements explaining the circumstances of the murder were spontaneous and unsolicited, and made immediately after the shooting, after the defendant fled the scene, the statements satisfied the criteria for an admission out of necessity. White v. State, 276 Ga. 583, 581 S.E.2d 18 (2003) (decided under former O.C.G.A. § 24-3-1).

Because the testimony of two witnesses recounting what the victim said to the witnesses prior to the victim's death was relevant to demonstrate the prior difficulties between defendant and the victim, and was accompanied by particular guarantees of trustworthiness, the trial court did not err in admitting the testimony under the "necessity" exception to the hearsay rule. Mathis v. State, 279 Ga. 100, 610 S.E.2d 62 (2005) (decided under former O.C.G.A. § 24-3-1).

In defendant's prosecution for murdering defendant's former girlfriend, the girlfriend's statements to two friends were properly admitted under former O.C.G.A. § 24-3-1(b) because the statements were uncontradicted statements made to people the victim had known for over a year, in whom the girlfriend placed great confidence and to whom the girlfriend regularly turned for advice with personal problems and to discuss personal matters, so the trial court could find the statements contained particularized guarantees of trustworthiness. Williams v. State, 279 Ga. 731, 620 S.E.2d 816 (2005) (decided under former O.C.G.A. § 24-3-1).

Parent's statement that the parent's child, a passenger in the defendant's car, came to the parent sick and vomiting after a sleepless night and told the parent that the passenger witnessed a murder was nontestimonial in nature and fell within the necessity exception to the hearsay rule. Testimony by the parent and by a police investigator who was looking for the passenger showed that the passenger was unavailable, and this was a situation where a declarant made a statement to a person in whom the declarant placed great confidence and to whom the declarant turned for help with problems. Shipman v. State, 288 Ga. App. 134, 653 S.E.2d 383 (2007) (decided under former O.C.G.A. § 24-3-1).

Testimony by a friend of the decedent that, before the death of the decedent, the decedent had told the friend that the decedent had been beaten in a fight by the defendant was admissible evidence under the necessity exception to the hearsay rule. The statements by the decedent were made to a friend (not an agent of law enforcement) in seeking help with an ongoing emergency and preventing immediate harm to the decedent. Miller v. State, 289 Ga. 854, 717 S.E.2d 179 (2011) (decided under former O.C.G.A. § 24-3-1).

Trial court did not abuse the court's discretion by finding that uncontradicted statements by a murder victim's daughters and sister exhibited particularized guarantees of trustworthiness when the evidence showed that the daughters and the sister had a close familial relationship with the victim and the victim regularly confided in the daughters and the sister about personal matters. McNaughton v. State, 290 Ga. 894, 725 S.E.2d 590 (2012) (decided under former O.C.G.A. § 24-3-1).

Testimony of the victim's sons and a coworker as to the statements the victim made regarding the victim's relationship with the defendant were admissible under the necessity exception to the hearsay rule as the victim enjoyed a close relationship with the victim's sons and routinely discussed personal issues with the coworker, and the statements were the only evidence of the victim's longstanding intention to leave the defendant. Faircloth v. State, 293 Ga. 134, 744 S.E.2d 52 (2013).

Trial court did not err by admitting the testimony of the victim's wife under the necessity exception of O.C.G.A. § 24-8-807 as defense counsel was permitted to recross-examine the witness to challenge the reliability of the victim's out-of-court statement and even if it were error to have admitted the wife's testimony concerning the victim's out-of-court statement about a previous fight with the defendant over a drug debt, the Supreme Court of Georgia found that it was highly probable that the error did not contribute to the judgment since it was merely cumulative of other evidence. Bulloch v. State, 293 Ga. 179, 744 S.E.2d 763 (2013).

Trial court did not err in admitting the victim's statements to two witnesses under the residual exception to the hearsay rule because there was no evidence apart from hearsay statements to show that the defendant owed the victim money for drugs, that the victim was overcharging the defendant for the drugs, and that 20 minutes before the victim was stabbed, the victim planned to meet the defendant to pay the debt and purchase more drugs. Lopez v. State, Ga. , S.E.2d (Apr. 5, 2021).

Hearsay statements by a murder victim were necessary as the victim was deceased and unavailable. Bryant v. State, 282 Ga. 631, 651 S.E.2d 718 (2007) (decided under former O.C.G.A. § 24-3-1).

Trial court did not err in admitting hearsay statements made by the deceased victim to a girlfriend in two cell phone calls at the time of the victim's murder based on their long acquaintance (10 years) and the fact they had been living together for 11 months, under the necessity exception to the hearsay rule. Taylor v. State, 296 Ga. 761, 770 S.E.2d 805 (2015).

- Trial court did not abuse the court's discretion when the court allowed a witness's testimony that the victim told the witness that the victim had a fight with the defendant under the residual hearsay exception because the witness testified that, when the witness went to pick the victim up from a club, the witness saw that the victim had a busted lip, a missing tooth, and broken eyeglasses; the victim explained the victim's condition to the witness, whom the victim had known for three decades and with whom the victim had maintained a close relationship, by stating the victim was in a fight with the defendant; and the evidence was more probative of the relationship troubles between the defendant and the victim than other evidence in the case. Miller v. State, 303 Ga. 1, 810 S.E.2d 123 (2018).

- Statements of deceased witness were properly admitted out of necessity under former O.C.G.A. § 24-3-1. Jackson v. State, 202 Ga. App. 582, 414 S.E.2d 905, cert. denied, 202 Ga. App. 906, 414 S.E.2d 905 (1992) (decided under former O.C.G.A. § 24-3-1).

Statements of a deceased juvenile made to a police detective in the course of an official investigation were admissible under the "necessity" exception to the rule against the admission of hearsay. White v. State, 268 Ga. 28, 486 S.E.2d 338 (1997) (decided under former O.C.G.A. § 24-3-1).

At defendant's trial for incest and child molestation, testimony from one of defendant's daughters, which was read from a transcript from a 1985 trial at which defendant was also convicted of child molestation, was hearsay evidence properly admitted under former O.C.G.A. § 24-3-1 based on necessity since the daughter was now deceased; there were sufficient guarantees of trustworthiness in the daughter's testimony when it was made under oath during trial and the testimony was corroborated by her sister and medical records; and the testimony was clearly relevant to and more probative than other testimony the state could present on the issue of whether defendant sexually abused and committed incest with one of defendant's daughters when she reached a certain age when it demonstrated defendant's plan, scheme, bent of mind, and course of conduct, whereby defendant would subject defendant's daughters to the defendant's acts of sexual abuse. Booth v. State, 264 Ga. App. 393, 590 S.E.2d 789 (2003) (decided under former O.C.G.A. § 24-3-1).

Under former O.C.G.A. § 24-3-1, testimony by the victim's husband about a conversation with the victim just prior to the crime was admissible because the victim was deceased, the statements about who was present in the store immediately before the victim's death were relevant, and the statement was trustworthy, having been made to the victim's husband, with whom the victim often spoke daily about matters at the store. Johnson v. State, 294 Ga. 86, 750 S.E.2d 347 (2013)(decided under former O.C.G.A. § 24-3-1).

Grandchild's testimony regarding a victim's statements were admissible under the residual exception to the hearsay rule, because the victim died prior to trial, the statements to the grandson provided a material fact, that the victim wired money under a false pretense, the circumstances provided sufficient guarantees of trustworthiness due to the close relationship, there were no other comparable evidence that the transfer was induced by fraud, and the state gave pretrial notice to the defendant. Akintoye v. State, 340 Ga. App. 777, 798 S.E.2d 720 (2017).

Admission of testimony from the victim's mother about the victim's statements about the defendant's threats and physical abuse and the statements made to a case worker who had been working closely with the victim were cumulative of the testimony of other witnesses who testified to the regular abuse the defendant inflicted upon the victim and were, therefore, harmless. Davenport v. State, 309 Ga. 385, 846 S.E.2d 83 (2020).

Assertion of spousal privilege meets the necessity requirement for admission of hearsay under the former O.C.G.A. § 24-3-1(b) necessity exception. Herring v. State, 252 Ga. App. 4, 555 S.E.2d 233 (2001) (decided under former O.C.G.A. § 24-3-1).

- Defendant's spouse's statement was properly admitted in defendant's criminal trial under the necessity exception to the hearsay rule, pursuant to former O.C.G.A. § 24-3-1(b) (see now O.C.G.A. §§ 24-8-801 and24-8-802), since it was necessary and it evidenced a guarantee of sufficient trustworthiness; the spouse was unavailable because the spouse refused to testify, the statements were trustworthy because the statements were made to police during their investigation of the criminal incident, and the statements were necessary because the statements provided insight into defendant's state of mind. Scott v. State, 261 Ga. App. 756, 583 S.E.2d 579 (2003) (decided under former O.C.G.A. § 24-3-1).

Admission of an audio tape of an out-of-court interview of the defendant's wife under the necessity exception to the bar against hearsay testimony, former O.C.G.A. § 24-3-1(b), violated the confrontation clause of U.S. Const., amend. 6 however, the content of the wife's speech was barely discernible on the tape, and, to the extent that the tape was audible, the wife's statements were cumulative of other testimony, so there was no reasonable possibility that the tape contributed to the convictions, and the error in admitting the tape was harmless. Daniels v. State, 280 Ga. 349, 628 S.E.2d 110 (2006) (decided under former O.C.G.A. § 24-3-1).

- Georgia Bureau of Investigation agent's testimony regarding a statement by defendant's former spouse implicating defendant in a killing was admissible as an exception to the general hearsay rule, since the former spouse remarried defendant before refusing to testify at defendant's trial, and there was a "necessity" that the finder of fact be acquainted with the statement of the only eyewitness to the homicide. Higgs v. State, 256 Ga. 606, 351 S.E.2d 448 (1987) (decided under former O.C.G.A. § 24-3-1); Wallace v. State, 216 Ga. App. 718, 455 S.E.2d 615 (1995);(decided under former O.C.G.A. § 24-3-1).

- Trial court did not err in admitting the testimony of the victim's fiance that the victim had told her about his desire for a restraining order against the defendant and about a prior difficulty with the defendant earlier on the day of the shooting because the victim was unavailable due to his murder, the statements were relevant to material facts and more probative thereof than other available evidence, and the statements had particular guarantees of trustworthiness because the victim and the fiance had been living together for over a year and had a very close relationship; in light of the overwhelming evidence of the defendant's involvement in the crimes, it was highly probable that the admission of the contested testimony did not contribute to the verdicts, and, therefore, any error in admitting the statements was not harmful. McIlwain v. State, 287 Ga. 115, 694 S.E.2d 657 (2010), overruled on other grounds by State v. Lane, 2020 Ga. LEXIS 98 (Ga. 2020) (decided under former O.C.G.A. § 24-3-1).

Trial court did not improperly allow the victim's girlfriend to testify about certain statements uttered by the victim concerning the defendant's personality and demeanor as: (1) the declarant-victim died and was thus unavailable; (2) the statements were relevant to the defendant's relationship with the victim, and the defendant's apparent motive, pattern of conduct, and opportunity to commit the crimes; and (3) the statements had particular guarantees of trustworthiness because of the close relationship between the victim and the defendant. Lyons v. State, 282 Ga. 588, 652 S.E.2d 525 (2007), overruled on other grounds, Garza v. State, 2008 Ga. LEXIS 865 (Ga. 2008) (decided under former O.C.G.A. § 24-3-1).

- Trial court did not err by admitting into evidence the victim's forensic interview under the residual hearsay exception because the interview was not more probative than other evidence at trial and, when asked about the events of the rape, the victim had an episode requiring a break in the proceedings and, upon the victim's return, the victim was largely unresponsive making the victim unable to testify meaningfully. Davis v. State, 353 Ga. App. 651, 839 S.E.2d 184 (2020).

- Even assuming the statements of the defendant's mother were admissible under the necessity exception to the hearsay rule, former O.C.G.A. § 24-3-1(b), the statements' exclusion was harmless error as the statements were cumulative of other evidence admitted at trial, making it highly probable that the statements' exclusion did not affect the verdict. Nix v. State, 280 Ga. 141, 625 S.E.2d 746 (2006) (decided under former O.C.G.A. § 24-3-1).

- Trial court did not abuse the court's discretion in determining that sisters had the sort of relationship which held guarantees of trustworthiness, such that the victim's statements to the sister concerning her finances were admissible under the necessity exception to hearsay, former O.C.G.A. § 24-3-1(b). Todd v. State, 274 Ga. 98, 549 S.E.2d 116 (2001) (decided under former O.C.G.A. § 24-3-1).

Out-of-court statement of close friend of defendant was not admissible under the necessity exception since there was no indicia of reliability and the statement lacked any spontaneity or timeliness. Atwater v. State, 233 Ga. App. 339, 503 S.E.2d 919 (1998) (decided under former O.C.G.A. § 24-3-1).

- In a malice murder case, the victim's statements to friends were admissible under the residual hearsay exception because the statements were trustworthy as the statements consistently spoke to the defendant's abusive, controlling, and violent behavior towards the victim during their marriage and during the victim's efforts to leave the defendant; and the victim's statements about the abusive threats that the defendant made to the victim, that harm to the victim would not be caused by the victim, and the victim's fears that the defendant might do something to the victim were trustworthy and admissible as those statements also stemmed from the domestic abuse about which the victim had been informing the victim's close confidantes. Jacobs v. State, 303 Ga. 245, 811 S.E.2d 372 (2018).

Victim's statements to a divorce attorney regarding the victim's spouse's violence were not admissible since there was insufficient indicia of reliability to admit the statements under the necessity exception. Dix v. State, 267 Ga. 429, 479 S.E.2d 739 (1997) (decided under former O.C.G.A. § 24-3-1).

- Informant's written statement to an attorney made two weeks after defendant's arraignment was insufficiently trustworthy to be admissible under the "necessity" exception. Nelson v. State, 226 Ga. App. 93, 485 S.E.2d 582 (1997) (decided under former O.C.G.A. § 24-3-1).

- See Patterson v. State, 202 Ga. App. 440, 414 S.E.2d 895 (1992) (decided under former O.C.G.A. § 24-3-1); Jones v. State, 240 Ga. App. 723, 524 S.E.2d 773 (1999); Battle v. State, 244 Ga. App. 771, 536 S.E.2d 761 (2000) (decided under former O.C.G.A. § 24-3-1);(decided under former O.C.G.A. § 24-3-1).

- Hearsay statements were admissible under the necessity exception despite the fact that some of the statements were made during the pendency of separations or a divorce action; the statements were made over a 10-year period and many of the statements were not made during the separations or the divorce action. 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).

Any error in admitting a victim's statements to a deputy responding to a9-1-1 call under the necessity exception to the hearsay rule was harmless as the hearsay portion of the deputy's testimony consisted of no more than two sentences, was cumulative of the other properly admitted evidence, and did not go to the core issue of the case. 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 defendant's prosecution for malice murder and cruelty to children, testimony by the five-year-old victim's grandmother as to prior difficulties between the victim and the defendant, including a statement by the victim to the grandmother that the defendant had hit the victim in the stomach on the day prior to the fatal incident, was properly admitted under the necessity exception as the grandmother took care of the victim on a regular basis and was concerned for the victim's welfare. Wright v. State, 285 Ga. 57, 673 S.E.2d 249 (2009) (decided under former O.C.G.A. § 24-3-1).

Trial court did not abuse the court's discretion in admitting out-of-court statements a victim made to the victim's sister under the necessity exception to the hearsay rule, former O.C.G.A. § 24-3-1(b), because the specific indicia of reliability did not have to be established by the testifying witness alone, and in the defendant's own testimony, the defendant described the relationship between the victim and the victim's sister as "real close;" even if the trial court did err, the error was harmless because the other evidence of the defendant's guilt was overwhelming and was corroborated by the defendant's own testimony, so it was highly probable that any error did not contribute to the verdict. Mills v. State, 287 Ga. 828, 700 S.E.2d 544 (2010) (decided under former O.C.G.A. § 24-3-1).

Trial court did not err by allowing the victim's parent to testify that the victim told the parent a few days before the victim died that the victim was going to go to the defendant's house in a few days because the evidence was properly admitted under the necessity exception to the rule against hearsay; because the victim was deceased, the victim was unavailable to testify, and the testimony offered was relevant to explain the state of feelings between the defendant and the victim and when and why the victim would have been at the defendant's apartment, which was where the victim's body was found. Jennings v. State, 288 Ga. 120, 702 S.E.2d 151 (2010) (decided under former O.C.G.A. § 24-3-1).

Trial court did not err in admitting statements the defendant made to the defendant's spouse under the necessity exception to the hearsay rule, former O.C.G.A. § 24-3-1(b), because the court properly concluded that the defendant and the defendant's spouse maintained a confidential relationship and that the out-of-court statements were trustworthy, and the statements were relevant to show the defendant's bent of mind on the day the defendant shot the victim; although the defendant's spouse moved to California where the spouse lived with the spouse's parents, the defendant and the defendant's spouse continued to speak to each other regularly by telephone, and they spoke several times on the day in question. Herrera v. State, 288 Ga. 231, 702 S.E.2d 854 (2010) (decided under former O.C.G.A. § 24-3-1).

Trial court did not err in admitting the testimony of the victim's roommate under the necessity exception to the hearsay rule, former O.C.G.A. § 24-3-1(b), because the confidential nature of their relationship, coupled with the roommate's identification of bruises the victim sustained at the time of the beating, were sufficient to attribute veracity to the hearsay declarations. Jeffers v. State, 290 Ga. 311, 721 S.E.2d 86 (2012) (decided under former O.C.G.A. § 24-3-1).

Any claim as to the admissibility of a witness's testimony under the necessity exception to the hearsay rule, former O.C.G.A. § 24-3-1(b), was waived because while a pretrial motion in limine sought to exclude the testimony on hearsay grounds, it was agreed that counsel would renew any objection counsel had to the witness' testimony at trial, and the defendant did not timely object at trial; the untimely motion for mistrial was based on improper character evidence, not on hearsay grounds as asserted on appeal. Jeffers v. State, 290 Ga. 311, 721 S.E.2d 86 (2012) (decided under former O.C.G.A. § 24-3-1).

Trial court did not abuse the court's discretion by allowing the admission of hearsay evidence by three witnesses concerning statements that the victim made about the victim's relationship with the defendant because such admissions were proper under the necessity exception to the hearsay rule, former O.C.G.A. § 24-3-1(b) (see now O.C.G.A. §§ 24-8-803 and24-8-807), as the witnesses showed the close relationship between the defendant and the victim, the statements were uncontradicted, found reliable, and bore sufficient indicia of trustworthiness to be admissible. Bunnell v. State, 292 Ga. 253, 735 S.E.2d 281 (2013) (decided under former O.C.G.A. § 24-3-1).

When the defendant was convicted of various offenses for denying the defendant's relationship with the man who murdered the defendant's husband, the trial court did not err by admitting into evidence under the necessity exception to the hearsay rule a witness's testimony regarding non-testimonial statements made to the witness by the man about the man's relationship with the defendant because there were circumstantial guarantees of trustworthiness; the statements were evidence of a material fact and more probative than other evidence the state could procure; and the evidentiary rules and the interests of justice were best served by admission of the statements. Sneiderman v. State, 336 Ga. App. 153, 784 S.E.2d 18 (2016), overruled on other grounds by Quiller v. State, 338 Ga. App. 206, 789 S.E.2d 391 (2016).

Pursuant to the necessity exception, the hearsay statement of the first victim's cousin that the first victim stated that the defendant was asking the first victim some questions about the defendant's girlfriend, the second victim, and stated that the defendant thought the first victim was messing around with the defendant's girlfriend, and that the first victim did not feel safe around the defendant was admissible because the first victim was clearly unavailable as the defendant had killed the first victim; the first victim's statement was relevant to the defendant's motive for shooting the first victim; and the first victim's statement bore significant indicia of trustworthiness. Williams v. State, 299 Ga. 209, 787 S.E.2d 187 (2016)(decided under former O.C.G.A. § 24-3-1(b)).

Trial court did not err when the court admitted the testimony of the victim's sister that, the day before the murder, the victim told the sister that the defendant gave the victim a bloody nose and threatened to stab the victim to death because, under the necessity exception to the hearsay rule of the old Evidence Code, the victim and the sister were very close, and the victim confided in and trusted the sister; there was no indication that the victim's statement to the sister was fabricated or lacking veracity; the prosecutor told the trial court that there was no other source for that information; and that there were no statements by the victim to law enforcement that would have avoided Confrontation Clause issues. Taylor v. State, 308 Ga. 57, 838 S.E.2d 774 (2020)(decided under former O.C.G.A. § 24-3-1).

- In a murder prosecution, when defendant's common-law wife asserted the privilege not to testify against the husband, statements the wife made during the official investigation and confirmed at a subsequent pre-trial hearing were admissible as an exception to the hearsay rule without conducting an additional hearing on their reliability. Drane v. State, 265 Ga. 663, 461 S.E.2d 224 (1995). But see Clark v. State, 271 Ga. 6, 515 S.E.2d 155 (1999) (decided under former O.C.G.A. § 24-3-1).

Wife's out-of-court statement containing a reference to defendant's inculpatory admission was admissible pursuant to the "necessity" hearsay exception. Quijano v. State, 271 Ga. 181, 516 S.E.2d 81 (1999) (decided under former O.C.G.A. § 24-3-1).

Trial court did not abuse the court's discretion in admitting testimony of the victim's cousin regarding the victim's statement that the defendant had "jumped him" because the victim's statement satisfied all three prerequisites for the admission of hearsay under the necessity exception, former O.C.G.A. § 24-3-1(b); the victim had been murdered and was not available, the statements had the appropriate indicia of trustworthiness because the statements were made when the victim was confiding in the victim's cousin, whom the victim had known all the victim's life and had lived with for some time, and the victim's statement was highly probative of the combative nature of the victim's relationship with the defendant. Evans v. State, 288 Ga. 571, 707 S.E.2d 353 (2011) (decided under former O.C.G.A. § 24-3-1).

Trial court did not abuse the court's discretion by holding that the testimony of the victim's friend regarding the victim's statements bore sufficient indicia of trustworthiness to be admissible under the necessity exception to the hearsay rule, former O.C.G.A. § 24-3-1(b), because the victim was deceased and unavailable to testify, and the statements were relevant to show the defendant's intent, motive, and bent of mind and were more probative of the facts than other evidence that could be procured and offered; the friend and the victim were close personal friends who frequently worked together and regularly confided in each other about personal matters including the fact that the victim was involved in an extra-marital affair. Gibson v. State, 290 Ga. 6, 717 S.E.2d 447 (2011) (decided under former O.C.G.A. § 24-3-1).

Trial court did not abuse the court's discretion by concluding that the witnesses' testimony regarding statements the victim made about a relationship with the defendant bore sufficient indicia of trustworthiness to be admissible under the necessity exception to the hearsay rule, former O.C.G.A. § 24-3-1(b), because the victim was deceased and unavailable to testify, the statements were relevant to show the defendant's intent, motive, and bent of mind, and the statements were more probative of the facts than other evidence that could be procured and offered; both witnesses stated that the witnesses discussed personal and confidential matters with the victim. Butler v. State, 290 Ga. 425, 721 S.E.2d 889 (2012) (decided under former O.C.G.A. § 24-3-1).

Under the necessity exception to hearsay, former O.C.G.A. § 24-3-1(b), the testimony of four individuals about the victim's statements regarding the subletting of the townhouse, the problems the victim was having about retrieving the mail, and the missing furniture and checks were admissible because the victim's statements were necessary and sufficiently trustworthy since they were made to the individuals in whom the victim placed a great deal of confidence. Thomas v. State, 274 Ga. 156, 549 S.E.2d 359 (2001) (decided under former O.C.G.A. § 24-3-1).

Trial court did not err in allowing the victim's cousin and the cousin's girlfriend to testify at trial about prior difficulties between the victim and the defendant pursuant to the necessity exception to the rule excluding hearsay, and the testimony did not violate the defendant's right to confrontation, because the trial court concluded the proffered testimony of the witnesses was reliable and trustworthy as it found the victim was like a sibling to the witnesses, and because any alleged harm from the admission of that testimony was mitigated by the fact that both witnesses testified the victim and the defendant continued to be friends in spite of their prior difficulties. Thompson v. State, 294 Ga. 693, 755 S.E.2d 713 (2014)(decided under former O.C.G.A. § 24-3-1(b)).

- When the prosecution asked only how long each witness had known the murder victim and whether each witness was familiar with the relationship between defendant and the victim, there was no showing of the required particularized guarantees of trustworthiness to permit admission of the hearsay statements of the victim under the necessity exception of former O.C.G.A. § 24-3-1(b); there was no testimony about the nature of the relationships between the witnesses and the victim. Mote v. State, 277 Ga. 429, 588 S.E.2d 748 (2003), cert. denied, 541 U.S. 1066, 124 S. Ct. 2395, 158 L. Ed. 2d 968 (2004) (decided under former O.C.G.A. § 24-3-1).

In a will contest action, the trial court did not err by refusing the challenger's proffer of having a grandchild for the decedent testify that the decedent was unaware of a change in a medical appointment as the testimony did not fit the hearsay necessity exception. The trial court did not abuse the court's discretion by finding that the alleged statement to the grandchild, who certainly had an interest in seeing that the objector, the grandchild's parent, benefited from the admission of the testimony and, therefore, the testimony lacked sufficient trustworthiness. Horton v. Hendrix, 291 Ga. App. 416, 662 S.E.2d 227 (2008), cert. denied, No. S08C1574, 2008 Ga. LEXIS 780 (Ga. 2008) (decided under former O.C.G.A. § 24-3-1).

Out-of-court statements identifying the appellant as the man who beat the witness's stepson did not appear to be the most probative evidence to establish the appellant's identity as the killer because the witness's spouse testified directly to that same fact, but the statements were properly admitted under the hearsay exception for excited utterances since the statements were made just minutes after the stepson had been brutally attacked. Wilson v. State, 295 Ga. 84, 757 S.E.2d 825 (2014).

Trial court did not abuse the court's discretion in ruling that the police reports about the three separate incidents of violence allegedly committed by the co-indictee in Baltimore in 1998 were inadmissible under the necessity exception to the hearsay rule because, even assuming that the authors of the police reports and the victims and witnesses whose statements were recounted in two of the reports were all outside Georgia and thus unavailable, the defendants failed to establish the necessary guarantees of trustworthiness as the only information about violent acts contained in the police reports of the first two incidents was double hearsay, and there was no reliable evidence that the co-indictee was the person identified in the police reports. Brown v. State, 295 Ga. 804, 764 S.E.2d 376 (2014)(decided under former O.C.G.A. § 24-3-1(b)).

Trial court did not err in excluding a witness's hearsay statement under the necessity exception to the hearsay rule because the witness's statement was not the only evidence that could establish that the co-indictee's gun was actually capable of firing as two eyewitnesses testified that the witnesses believed the co-indictee actually fired shots, and the witness's statement did not prove that the co-indictee's gun was capable of firing because the witness never said that the witness saw the gun fire. Brown v. State, 295 Ga. 804, 764 S.E.2d 376 (2014)(decided under former O.C.G.A. § 24-3-1(b)).

- Victim's declarations to an army medic before the crimes in question that the defendant had injured the victim were inherently untrustworthy, and thus were improperly admitted under the necessity exception to the hearsay doctrine: (1) the victim was intoxicated when the victim made the statements; and (2) the victim also stated that the victim would lie to the victim's chain of command about the injury. The error was harmless, however, because the evidence could not have contributed to the verdict as two eyewitnesses implicated the defendant as a party to the crimes. Navarrete v. State, 283 Ga. 156, 656 S.E.2d 814 (2008), cert. denied, 129 S. Ct. 104, 172 L. Ed. 2d 33 (2008) (decided under former O.C.G.A. § 24-3-1).

Trial court did not err when it declined to admit hearsay after finding that the party seeking to use the hearsay had not made the necessary proffer because, although defense counsel asserted that the persons who would testify to the utterances purportedly made by the victims were friends of the victims who reported the utterances to police shortly after the victims were killed, such a presentation was insufficient to authorize the admission of hearsay pursuant to the necessity exception found in former O.C.G.A. § 24-3-1(b) since there was no showing of the required special relationship between the deceased declarants and the proffered witnesses. Coleman v. State, 286 Ga. 291, 687 S.E.2d 427 (2009) (decided under former O.C.G.A. § 24-3-1).

Trial court did not abuse its discretion in refusing to allow testimony under the necessity exception to the hearsay rule, former O.C.G.A. § 24-3-1(b), that the victim had told her sister that her neighbor had raped her several months prior to her murder because the hearsay testimony was not proper impeachment evidence when it was not relevant to the crimes for which the defendant was on trial, and it was also not relevant to the neighbor's motive or interest in testifying; although the victim, the declarant, was deceased and unavailable, the defendant failed to prove that the hearsay testimony was relevant to and probative of a material fact since the alleged rape occurred several months prior to the victim's murder, there was no evidence connecting either the rape or the neighbor to it, and even assuming the proffered testimony's trustworthiness, the fact that the neighbor had raped the victim in the past did not directly connect him to the victim's murder or show that he committed the murder or a similar crime. Arrington v. State, 286 Ga. 335, 687 S.E.2d 438 (2009), cert. denied, 131 S. Ct. 112, 178 L. Ed. 2d 69 (U.S. 2010) (decided under former O.C.G.A. § 24-3-1).

In a widow's suit seeking to impose a constructive trust on accounts and assets conveyed by the decedent to the decedent's executor, the trial court did not err in excluding hearsay testimony of the widow's daughter and a close friend of the decedent stating that the assets had been conveyed to the executor for the care and support of the widow. The testimony was vague and was not proven to be admissible under the trustworthiness exception of O.C.G.A. § 24-8-807. Rabun v. Rabun, 341 Ga. App. 878, 802 S.E.2d 296 (2017).

- Trial court did not abuse the court's discretion by excluding from the evidence an out-of-court statement by one of the men convicted for the home invasion and a letter from another man who was convicted of the home invasion because the statement and the letter lacked any indicia of reliability. Thus, the defendant was not entitled to introduce the evidence under the necessity exception to the hearsay rule, former O.C.G.A. § 24-3-1(b). Pope v. State, 266 Ga. App. 658, 598 S.E.2d 48 (2004) (decided under former O.C.G.A. § 24-3-1).

- Any claim of error as to the admissibility of the testimony of the victim's coworker under the necessity exception to the hearsay rule, former O.C.G.A. § 24-3-1(b), that the defendant had been harassing and stalking the victim was waived for purposes of appeal because defense counsel acquiesced in the curative instruction that the defendant was on trial for the charges contained in the indictment only, and the jury could not consider allegations of any other crimes because it was introduced without any hearsay objections from the defendant. Jeffers v. State, 290 Ga. 311, 721 S.E.2d 86 (2012) (decided under former O.C.G.A. § 24-3-1).

- Trial court did not abuse the court's discretion by not granting the defendant's motion for a mistrial because the trial court's curative instruction was sufficient to protect the defendant from the prejudicial effect of the hearsay testimony as although such testimony reflected poorly on the defendant's character, the defendant offered no evidence that the jury did not follow the trial court's instruction to disregard the testimony. Rosser v. State, 308 Ga. 597, 842 S.E.2d 821 (2020).

- Defendant's claim that the trial court erred by admitting hearsay evidence under the residual exception without first explicitly making the determinations required lacked merit because, although the better practice would be for trial courts to state on the record that each requirement was met and why, the failure to do so was not an abuse of discretion. Smith v. State, Ga. , S.E.2d (Apr. 19, 2021).

Cited in Thompson v. State, 302 Ga. 533, 807 S.E.2d 899 (2017); State v. Hamilton, 308 Ga. 116, 839 S.E.2d 560 (2020).