GA Code § 24-7-704 (2021)
2021 Georgia Code|Title 24 - Evidence|Chapter 7 - Opinions and Expert Testimony|§ 24-7-704. Ultimate Issue Opinion

  Except as provided in subsection (b) of this Code section, testimony in the form of an opinion or inference otherwise admissible shall not be objectionable because it embraces an ultimate issue to be decided by the trier of fact.   No expert witness testifying with respect to the mental state or condition of an accused in a criminal proceeding shall state an opinion or inference as to whether the accused did or did not have the mental state or condition constituting an element of the crime charged or of a defense thereto. Such ultimate issues are matters for the trier of fact alone.     (Code 1981, §24-7-704, enacted by Ga. L. 2011, p. 99, § 2/HB 24.)   Cross references.   - Opinion on an ultimate issue, Fed. R. Evid. 704.   Law reviews.   - For article, "An Overview of Ultimate Issue Evidence," see 25 Ga. St. B.J. 19 (June 2020).   JUDICIAL DECISIONS   Testimony regarding whether injuries were accidental admissible.    - In the defendants' murder trial in which the defendants claimed a shooting was accidental as the parties struggled, because the medical examiner's testimony that the victim's injuries were inconsistent with an accidental shooting did not opine as to the defendants' mental intent for any crime or defense, there was no violation of O.C.G.A. § 24-7-704, and because the examiner's opinion was based on the examiner's specialized knowledge and training, O.C.G.A. § 24-7-707, any objection would have been meritless. Eller v. State, 303 Ga. 373, 811 S.E.2d 299 (2018), overruled on other grounds by Lester v. State, 310 Ga. 81, 849 S.E.2d 425 (2020).   Lay testimony on ultimate issue grounds no longer generally prohibited.    - There was no error in the trial court's admission of the complained-of statement of one of the female accomplice's recorded interview with the police because the officer's statement regarding a party to a crime did not constitute ultimate issue opinion testimony; and, even if the statement did, the current Evidence Code - unlike the former Code - did not generally prohibit lay witness testimony on ultimate issue grounds. Butler v. State, 310 Ga. 892, 855 S.E.2d 551 (2021).   Lay witnesses' testimony that defendant had murdered victims.    - At the defendant's murder trial, the witnesses' opinion testimony that the defendant killed the victims was rationally based on the witnesses' perception and helpful to understanding the witnesses' testimony and, therefore, admissible under O.C.G.A. § 24-7-701; even if the witnesses' opinion addressed an ultimate issue, the testimony was not objectionable under O.C.G.A. § 24-7-704(a). One witness saw the defendant with the victims shortly before the victims were killed, and the defendant told the other that the defendant had "offed them boys." Grier v. State, 305 Ga. 882, 828 S.E.2d 304 (2019).   Testimony on nature of victim's injuries.    - Although the defendant argued that the testimonies of the experts at a minimum injected the impermissible inference that the defendant caused the 18-month-old child's injuries intentionally, that was simply not the case because the expert's testimony concerned the nature of the injuries inflicted on the victim, not the mental state of the defendant; whether the accused committed an intentional act to harm the victim is a different question than whether someone likely committed an intentional act to harm the victim. Wade v. State, 304 Ga. 5, 815 S.E.2d 875 (2018).   Fire marshall's testimony regarding arson.    - After being qualified as an expert witness, the fire marshal's testimony that the fire at the victims' residence was intentionally set did not invade the province of the jury in deciding whether the defendant had committed arson because the testimony did not address other elements of the crime of arson or directly implicate the defendant as the perpetrator of that crime; and the conclusion that the fire was intentionally set was not one jurors would ordinarily be able to draw for themselves. Saffold v. State, 298 Ga. 643, 784 S.E.2d 365 (2016).   Detective's testimony regarding venue and shooting.    - Detective's answers to the defendant's questions regarding the surveillance recording of the shooting did not violate the ultimate issue rule, and the defendant could not show harm because evidence of the defendant's guilt was compelling; and the defendant could not show that the complained-of comments likely affected the outcome of the defendant's trial as, although it might have been improper for the detective to share the detective's subjective belief that the defendant was the shooter seen on the surveillance recording with the jury explicitly, that the detective believed the defendant was the shooter seen on the surveillance recording would have come as no surprise to the jury. Thompson v. State, 304 Ga. 146, 816 S.E.2d 646 (2018).   Detective testifying as lay witness.    - Even though a detective's comments during a video interview touched on the ultimate issues of the case, whether the shooting was an accident, the trial court did not err in refusing to redact the comments because O.C.G.A. § 24-7-704(a) did not bar the admission of the comments even if the comments touched on the ultimate issue because the detective was testifying as a lay witness. Mack v. State, 306 Ga. 607, 832 S.E.2d 415 (2019).   Detective's testimony that witness was not an accomplice.    - Trial court did not err by allowing a detective to testify that the witness was not an accomplice to the crime because O.C.G.A. § 24-7-704 abolished the prohibition on lay opinion testimony concerning the ultimate issue in a case. Fisher v. State, 309 Ga. 814, 848 S.E.2d 434 (2020).   Psychologist opinion testimony on ultimate issue properly admitted.    - In a case terminating the mother's parental rights, the clinical psychologist's testimony regarding the psychologist's bonding evaluation on the child was properly admitted because the psychologist, who was tendered as an expert on child psychology and attachment and bonding without objection, explained that the psychologist formed the psychologist's opinions based on an interview, observation, and testing; the psychologist testified that the methods the psychologist used and the information the psychologist gathered were of the type regularly used by others in the psychologist's profession; and the psychologist's opinion was not objectionable on the grounds that the opinion embraced an ultimate issue to be decided by the trier of fact. In the Interest of R. S. T., 345 Ga. App. 300, 812 S.E.2d 614 (2018).   Psychologist's opinion testimony on defendant's past sanity properly excluded.    - Any error in the exclusion of a psychologist's statement of opinion was not error because any error was harmless and would not warrant reversal as the psychologist's statement was from two years prior to the commission of the murders of the defendant's two infant daughters; and it was a statement of opinion that the defendant did, in fact, know right from wrong when the defendant was discharged from the hospital; thus, any inference the jury might have drawn from the psychologist's statement of opinion concerning the defendant's past sanity would have been of marginal help to the defense on the issue of whether the defendant was insane at the time of the crimes charged. Morgan v. State, 307 Ga. 889, 838 S.E.2d 878 (2020).   Expert's testimony on mental state and culpability unsolicited.    - Defendant's motion for mistrial was properly denied because the testimony of the trial court's expert witness on the defendant's mental state and culpability was unsolicited by the state, which had merely asked if the defendant was experiencing psychosis at the time of the shooting; the expert's remark was cut off promptly, and the trial court instructed the jury to disregard the remark; and the trial court instructed the jury, as the defendant requested, that the expert should not have testified as to whether the defendant was criminally responsible at the time of the shooting, and the defendant raised no objection to any of the language used by the trial court. Parker v. State, 309 Ga. 736, 848 S.E.2d 117 (2020).   Limitation on doctor's testimony proper.    - Trial court did not abuse the court's discretion by limiting a doctor's testimony because the court allowed the expert to testify at length about the forensic interview and what the expert opined were problems with the process, as well as why certain outcries were more likely to be the result of a scripted response. What the trial court prohibited was the expert's testimony about the contents of the police reports, which was a proper limitation. Hambrick v. State, 353 Ga. App. 666, 839 S.E.2d 664 (2020), cert. denied, No. S20C0935, 2020 Ga. LEXIS 806 (Ga. 2020).   Doctor's testimony did not encompass who inflicted injury.    - Since the doctor's testimony encompassed the intentional and aggressive nature of the bite marks to the child victim but did not identify the defendant as having inflicted the bites, the doctor's testimony was not improper. Robinson v. State, 309 Ga. 729, 848 S.E.2d 441 (2020).    Cited in State v. Cooper, 324 Ga. App. 32, 749 S.E.2d 35 (2013); Dority v. State, 335 Ga. App. 83, 780 S.E.2d 129 (2015).