GA Code § 24-1-104 (2021)
2021 Georgia Code|Title 24 - Evidence|Chapter 1 - General Provisions|Article 2 - General Evidentiary Matters|§ 24-1-104. Preliminary Questions

  Preliminary questions concerning the qualification of a person to be a witness, the existence of a privilege, or the admissibility of evidence shall be determined by the court, subject to the provisions of subsection (b) of this Code section. In making its determination, the court shall not be bound by the rules of evidence except those with respect to privileges. Preliminary questions shall be resolved by a preponderance of the evidence standard.   When the relevancy of evidence depends upon the fulfillment of a condition of fact, the court shall admit it upon, or subject to, the introduction of evidence sufficient to support a finding of the fulfillment of the condition.   Hearings on the admissibility of confessions shall in all cases be conducted out of the hearing of the jury. Hearings on other preliminary matters shall be conducted out of the hearing of the jury when the interests of justice require or when an accused is a witness and requests a hearing outside the presence of the jury.   The accused shall not, by testifying upon a preliminary matter, become subject to cross-examination as to other issues in the proceeding.   This Code section shall not limit the right of a party to introduce before the jury evidence relevant to weight or credibility.     (Code 1981, §24-1-104, enacted by Ga. L. 2011, p. 99, § 2/HB 24.)   Cross references.   - Preliminary questions, Fed. R. Evid. 104.   Law reviews.   - For article, "Dancing with the Big Boys: Georgia Adopts (most of) the Federal Rules of Evidence," see 63 Mercer L. Rev. 1 (2011). For annual survey on evidence, see 65 Mercer L. Rev. 125 (2013). For annual survey of evidence law, see 67 Mercer L. Rev. 63 (2015).   JUDICIAL DECISIONS   Error in application of hearsay rules in determining material witness status.    - Trial court erred in applying the hearsay rules to exclude the appellant's proffered documents from the evidence the court considered in ruling on a motion for material witness certificates as to the Kentucky-based manufacturer of the breathalyzer because an exception under O.C.G.A. § 24-1-2(c)(1) applied. Parker v. State, 296 Ga. 586, 769 S.E.2d 329 (2015).   Application of rules of evidence.    - Under Georgia's new Evidence Code, unless a fact-finding proceeding involves one of the 12 situations enumerated in O.C.G.A. § 24-1-2(c) and (d), the rules of evidence fully apply; similarity to one or more of the enumerated situations is insufficient to limit the applicability of the evidence rules. Parker v. State, 296 Ga. 586, 769 S.E.2d 329 (2015).    Trial court did not err in relying in part on a letter from a physician treating a prior victim, who wrote that the victim's medical condition left the victim unable to travel to Chatham County, and in admitting the victim's prior testimony about a robbery because, whether the Screven County victim was unavailable presented a question of fact to be determined by the trial court as preliminary to the admissibility of the victim's prior testimony, and there was no error in its consideration of the physician's letter in resolving that question. Scott v. State, 309 Ga. 95, 844 S.E.2d 785 (2020).   Rules of evidence applicable to issuance of material witness certificate.    - Under O.C.G.A. § 24-1-2(b), the rules of evidence apply to a proceeding for issuance of a material witness certificate under the out-of-state witness act unless one of the exceptions in § 24-1-2(c) or (d) applies. Parker v. State, 296 Ga. 586, 769 S.E.2d 329 (2015).   No pretrial motion on admissibility required.    - Defendant's contention that the state "should" have filed a pretrial motion for a preliminary ruling on the admissibility of defendant's alibi witness' testimony was rejected because the state's challenge to the testimony, the witness's statement to the trial court that the witness would invoke the witness's right against self-incrimination, and the defendant's proffer of the witness' proposed testimony all took place outside the presence of the jury. Defendant also could have sought a preliminary ruling on the admissibility of the witness's proposed testimony, but the defendant did not. Hampton v. State, 308 Ga. 797, 843 S.E.2d 542 (2020).   Hearsay rule did not apply at hearing on motion to suppress.    - Roadblock approval form introduced into evidence at a hearing on a motion to suppress sobriety tests performed at a roadblock, which was signed by a state patrol corporal and which stated that the corporal served in a supervisory capacity and was authorized to establish roadblocks, along with the arresting trooper's testimony to the same effect, was sufficient to show that the corporal was authorized to set up the roadblock; the hearsay rule did not apply in a suppression hearing. Turner v. State, 352 Ga. App. 122, 833 S.E.2d 299 (2019).    Cited in Roberts v. Cmty. & S. Bank, 331 Ga. App. 364, 771 S.E.2d 68 (2015); Kemp v. State, 303 Ga. 385, 810 S.E.2d 515 (2018); Strong v. State, 309 Ga. 295, 845 S.E.2d 653 (2020).