Gallegos-Munoz v. State

906 S.E.2d 711, 319 Ga. 803

• Court: Supreme Court of Georgia
• Decided: September 17, 2024
• Docket: S24G0214
• Status: Published

Opinion

319 Ga. 803 FINAL COPY

S24G0214. GALLEGOS-MUNOZ v. THE STATE.

ELLINGTON, Justice.

We granted certiorari in this sex-offense case to consider the

rules governing the admissibility of evidence concerning a victim’s

allegedly false accusation of sexual misconduct against a person

other than the defendant.1 The precise issue presented in this case

is whether, when a defendant wishes to adduce such evidence, the

trial court errs in excluding the evidence, based solely on the trial

court’s determination that the evidence does not show a reasonable

probability that the alleged victim’s prior accusation was false. We

conclude that decisional law predating the effective date of Georgia’s

current Evidence Code (the “2013 Evidence Code”) that required a

trial court to admit prior-accusation evidence, following a threshold

1 We refer to such evidence as “prior-accusation evidence” for the sake of

brevity. An alleged victim’s accusations against the defendant and against the other person or persons may have occurred in any chronological order. determination made by the trial court outside the presence of the

jury that a reasonable probability of falsity existed,2 does not apply

to prosecutions governed by the 2013 Evidence Code. Instead, the

rules set forth in the 2013 Evidence Code govern the admissibility

of such evidence, as this Court held in State v. Burns, 306 Ga. 117

(829 SE2d 367) (2019) (“Burns II”).

In this case, the trial court determined after an evidentiary

hearing that the prior-accusation evidence that Gallegos-Munoz

wished to adduce did not show a reasonable probability that the

alleged victim’s prior accusation was false. The trial court later

denied Gallegos-Munoz’s motion for a new trial, in which he argued

that, in light of Burns II, the prior-accusation evidence he wished to

adduce should have been admitted under OCGA § 24-4-403 (“Rule

403”). The Court of Appeals affirmed Gallegos-Munoz’s conviction

2 See State v. Burns, 306 Ga. 117, 119 (1) (829 SE2d 367) (2019) (In Smith

v. State, 259 Ga. 135, 137 (1) (377 SE2d 158) (1989), “we announced that evidence of a prior false allegation was admissible during trial following a threshold determination made by the trial court outside the presence of the jury that a reasonable probability of falsity exists.” (citation and punctuation omitted)).

2 and the denial of his motion for a new trial. See Gallegos-Munoz v.

State, 369 Ga. App. 277 (893 SE2d 176) (2023). Because both the

trial court and the Court of Appeals relied on the outdated probable-

falsity threshold test, we vacate the Court of Appeals’s judgment and

direct the Court of Appeals to vacate the trial court’s ruling and

remand for reconsideration of Gallegos-Munoz’s motion for a new

trial under the applicable evidentiary standards.

1. The record shows the following facts. Gallegos-Munoz was

arrested in 2015 after his girlfriend’s 12-year-old daughter, J. R.,

made an outcry to a teacher that Gallegos-Munoz had touched her

breast and between her legs and had raped her twice. See Gallegos-

Munoz, 369 Ga. App. at 278. On March 2, 2016, Gallegos-Munoz was

indicted in Gwinnett County on two counts of rape and one count of

child molestation. Before trial, Gallegos-Munoz moved for leave to

introduce “prior false accusation evidence,” specifically, allegations

of sexual abuse that J. R. had made against her biological father in

June 2016. In the motion, Gallegos-Munoz asserted that “J. R. has

since apparently recanted her accusation of sexual abuse against”

3 her father and that no criminal investigation was pursued.

At a September 2018 hearing on Gallegos-Munoz’s motion,

J. R.’s mother and three law enforcement officers testified about

J. R.’s allegations about her father’s sexual abuse. J. R.’s mother

testified that J. R. told her that J. R.’s father had “touched her

private part”; that “[J. R.] called the police”; that a patrol officer

came to her house to take a report about J. R.’s allegation, and the

officer then told her that law enforcement “could not continue with

the case because if the case was before a judge he would just throw

out the case because there was not enough proof”; that J. R.’s mother

“[did not] know if there was an investigation done or not”; that she

asked J. R. if it was true and J. R. said, “yes”; that she “ask[ed] [J.

R.] if she made up [the story about her father] after the police said

there wasn’t enough evidence to go forward” and that J. R. said

“[n]othing”; and that J. R. never told her “that she made up the story

about her father.”

A detective testified at the hearing that his unit supervisor

initially assigned J. R.’s case to him but that he did not speak with

4 J. R. or otherwise investigate the case because, within days, the

supervisor told him “that he was contacted by the complainant

again” a few days after the initial report and that the family “did not

wish to proceed[,]” so the detective “could unfound the case.” The

unit supervisor testified that he spoke with J. R.’s mother by

telephone and that she indicated that “[J. R.] was in counseling” and

that the family “just wanted to handle it like that and not pursue

any sort of criminal investigation regarding [the] incident [with J.

R.’s father].” The unit supervisor testified that, after his

conversation with J. R.’s mother, no additional steps were taken to

follow up on the patrol officer’s report. The unit supervisor testified

that J. R.’s mother “didn’t tell [him] that [J. R.] had said it didn’t

happen” and “did not indicate . . . anything” about whether “she

believed [J. R.’s allegation].”

Finally, an investigator testified that he worked on the case

against Gallegos-Munoz. During a pretrial interview, J. R. told the

investigator “about a case that she had previously had where there

was an outcry to the Gwinnett County Police Department against

5 her father”; that she only talked to one officer about it; that “she

expected to hear from somebody” but “never heard another thing

about that case”; that she “never knew what had happened to that

case” against her father; and that she “never wanted the charges

dropped.” J. R. related to the investigator that her mother and “all

of her family members . . . didn’t want her to proceed with either

[the] case” against her father or the case against Gallegos-Munoz,

and that her relationship with her mother had become “strained”

during that time period.

Based on the witnesses’ testimony, the State argued that there

was “actually no evidence of falsity” and that, consequently,

Gallegos-Munoz had not met his threshold burden of supporting a

determination of falsity. In an order entered on December 3, 2018,

the trial court denied Gallegos-Munoz’s motion to admit the prior-

accusation evidence, referencing “the reasons noted by the [c]ourt in

its oral ruling at the conclusion” of the September 2018 hearing. At

the hearing, the trial court had summarized J. R.’s mother’s

testimony as follows: J. R. “came to her and said my daddy touched

6 my private areas[,]” the police shut the investigation down, and J.

R.’s mother “went back and asked [J. R.] if it really happened” and

J. R. “basically said nothing, didn’t deny it, didn’t confirm it.” The

trial court determined, “at least on [the] limited issue” of whether J.

R. recanted, as alleged in Gallegos-Munoz’s motion, the trial court

did not find J. R.’s mother “to be very credible[.]” The trial court

determined there was not “enough evidence . . . to say with anything

remotely resembling a reasonable probability that the child made a

false allegation against her father.” Consequently, the trial court

ruled, Gallegos-Munoz was not able to establish with reasonable

probability that the victim made a false accusation of sexual

misconduct against someone else, and for that reason, he was barred

from introducing such evidence, citing Smith v. State, 259 Ga. 135,

136-137 (1) (377 SE2d 158) (1989), and Osborne v. State, 291 Ga.

App. 711, 712-713 (2) (662 SE2d 792) (2008).

After a six-day trial, a jury found Gallegos-Munoz guilty of one

count of child molestation. The court sentenced Gallegos-Munoz to

serve 19 years in prison followed by one year on probation. Gallegos-

7 Munoz filed a motion for a new trial, arguing that the trial court

applied the wrong analysis to his motion to admit J. R.’s allegation

of sexual misconduct by her father. In his motion, Gallegos-Munoz

argued that this Court’s decision in Burns II eliminated the

requirement under Smith and other earlier case law that a trial

court make a threshold finding that a victim’s prior accusation of

sexual abuse was probably false. He argued that, under Burns II,

such evidence was subject to Rule 403, which requires a special

finding as to probative value. The State countered that, because the

trial court found that there was no reasonable probability of falsity,

there was no need to conduct a Rule 403 balancing test and that the

trial court correctly denied Gallegos-Munoz’s motion to admit prior-

accusation evidence because he did not meet his burden of showing

a reasonable probability of falsity. The trial court agreed with the

State and denied Gallegos-Munoz’s motion for a new trial on the

basis that, consistent with Burns II, the trial court was not required

to make specific findings regarding the Rule 403 balancing test after

it determined that there was no reasonable probability that J. R.’s

8 prior accusation regarding her father was false. In Gallegos-Munoz’s

direct appeal, the Court of Appeals framed its understanding of the

applicable standard as follows:

Since Burns [II], this Court has repeatedly noted that the Supreme Court left unaddressed whether the threshold determination of the falsity of the statement should be determined by the trial court as a prerequisite to applying the Rule 403 balancing test. In Vallejo v. State, 362 Ga. App. 33 (865 SE2d 640) (2021), a whole court opinion with a split decision, [the Court of Appeals] ultimately held that Burns [II] did not overrule the threshold determination set forth in Smith. . . . [P]ost- Vallejo, the threshold requirement that the trial court first find a reasonable probability of falsity remains intact unless or until the Supreme Court says otherwise. . . . It is our duty to apply existing precedent.

Gallegos-Munoz, 369 Ga. App. at 281-282 (citation and punctuation

omitted). Based on this understanding of Burns II and its own case

law, the Court of Appeals held in this case that the trial court did

not err in excluding the prior-accusation evidence, id. at 282, based

on the trial court’s determinations that “there was no reasonable

probability that the victim made a false allegation against her father

and that the mother’s testimony was not credible.” Id. at 279.

2. Gallegos-Munoz contends that the trial court erred in

9 denying his motion for a new trial. Specifically, he argues that, in

Burns II, this Court eliminated the requirement adopted in Smith

that a trial court make a threshold finding of “probable falsity” of

prior-accusation evidence and held that trial courts should decide

the admissibility of such evidence by applying the “usual rules of

evidence.” Gallegos-Munoz contends that, on retrial, the trial court

“should be directed to analyze the [admissibility of] the prior false

allegations evidence proffered by the defense under Rule 403 alone.”

We agree with the first contention but not with the second.

To clarify the consideration of prior-accusation evidence in sex

offense trials governed by Georgia’s 2013 Evidence Code, we

undertake the following analysis: (a) we summarize our holding in

Smith under the previous Evidence Code that Georgia’s rape-shield

statute does not bar prior-accusation evidence in sex offense trials

and the announcement in Smith of a constitution-based rule that

such evidence is per se admissible, which included the probable-

falsity threshold test; (b) we clarify that, when we affirmed in Burns

II the “evidentiary holding” in Smith, that holding was limited to

10 our holding in Smith that Georgia’s rape-shield statute does not bar

prior-accusation evidence; (c) we clarify our holding in Burns II,

which eliminated Smith’s per se rule of admissibility and inherently

eliminated the probable-falsity threshold test that was included in

the per se rule of admissibility as an exception to that rule; (d) we

discuss our Rule 403 analysis in Burns II and clarify our statement

in that case regarding the probative value of prior-accusation

evidence; (e) we discuss generally the application of the rules laid

out in the 2013 Evidence Code to prior-accusation evidence proffered

by a criminal defendant; and (f) we set out our holding in this case.

(a) Our holdings in Smith.

“The main issue on appeal” in Smith was “whether [former]

OCGA § 24-2-3, commonly referred to as [Georgia’s] rape-shield law,

bar[red] admission of testimony regarding the victim’s alleged past

false accusations against persons other than the defendant.” Smith,

259 Ga. at 135-136. We held that the rape-shield statute, which is

now codified in the 2013 Evidence Code as OCGA § 24-4-412, did not

prohibit such testimony. Id. at 136-138 (1). In Smith, we agreed with

11 the reasoning of some of our sister states that evidence of prior false

accusations by the victim does not involve the victim’s past sexual

conduct, which is generally prohibited by rape-shield statutes, “but

rather [involves] the victim’s propensity to make false statements

regarding sexual misconduct.” Id. at 137 (1). Persuaded by the

holdings of “a majority of jurisdictions that have considered the

question” of whether “evidence that the prosecutrix in a sex-offense

case has made prior false accusations against men other than the

defendant,” we held that “evidence of prior false accusations is

admissible to attack the credibility of the prosecutrix and as

substantive evidence tending to prove that the instant offense did

not occur.” Id. And in considering the State’s argument that “even if

the rape-shield law does not prohibit such testimony, the testimony

relates to the victim’s character, which can only be attacked by

evidence of the victim’s general reputation for veracity[,]” not by

“specific instances of untruthfulness,” id. (citing former OCGA §§ 24-

2-2; 24-9-84), we held that “the evidentiary rule preventing evidence

of specific acts of untruthfulness must yield to the defendant’s right

12 of confrontation and right to present a full defense.” Id.3

As we observed in Burns II, with this “constitutional” holding

in Smith, this Court “create[d] a per se rule of admissibility for

evidence of prior false allegations where falsity has been

established, notwithstanding other rules of evidence.” Burns II, 306

Ga. at 121 (2). Along with the constitution-based per se rule of

admissibility that this Court “create[d]” in Smith, we followed the

3 In Smith, we did not explicitly identify the source of a “defendant’s right

of confrontation and right to present a full defense.” Smith, 259 Ga. at 137 (1). We cited to three cases from other states that attributed that right to the federal Constitution alone. See Clinebell v. Commonwealth, 368 SE2d 263, 266 (Va. 1988); Commonwealth v. Bohannon, 378 NE2d 987, 990 (Mass. 1978); State v. Anderson, 686 P2d 193, 200 (Mont. 1984). But in the same string cite in Smith, we also cited to three cases that did not mention either a defendant’s right “of confrontation” or a defendant’s right “to present a full defense.” See West v. State, 719 SW2d 684, 687 (Ark. 1986), superseded by statute as noted in Taylor v. State, 138 SW3d 684, 686 (Ark. 2003); People v. Wall, 95 Cal.App.3d 978, 989 (1979); People v. Hurlburt, 166 Cal.App.2d 334, 342 (1958). And we also cited a law review article that discussed federal constitutional rights implicated in admitting or excluding sexual-conduct and false-accusation evidence. See Harriett R. Galvin, Shielding Rape Victims in the State and Federal Courts: A Proposal for the Second Decade, 70 Minn. L. Rev. 763, 858-863 (1) (g) (1986). All this is to say that it is not entirely clear whether we were referencing the Georgia Constitution, the United States Constitution, or both when we concluded that, for prior-accusation evidence, the evidentiary rule that a victim’s character cannot be attacked by evidence of specific instances of untruthfulness must yield to the defendant’s right of confrontation and right to present a full defense.

13 lead of other courts that had considered the admissibility of prior-

accusation evidence and “adopt[ed]” the “rule” that, “before such

evidence can be admitted, the trial court must make a threshold

determination outside the presence of the jury that a reasonable

probability of falsity exists.” Smith, 259 Ga. at 137-138 (1). We

observed that “[t]his rule helps protect the prosecutrix from

unfounded allegations that she has made similar allegations in the

past[.]” Id. at 138 (1). In announcing the threshold probable-falsity

test in Smith, we did not mention whether Georgia trial courts could

exclude prior-accusation evidence that met that threshold on the

basis that the probative value of the evidence was outweighed by its

negative effects, although trial courts did exclude other types of

evidence based on a similar balancing test prior to the adoption of

Rule 403 as part of the 2013 Evidence Code.4

4 See, e.g., Hinton v. State, 280 Ga. 811, 816 (4) (631 SE2d 365) (2006)

(“Where an issue is raised whether the probative value of evidence is outweighed by its tendency to unduly arouse the jury’s emotions of prejudice, hostility, or sympathy, a trial court’s decision regarding admissibility is a matter of discretion.”); Smith v. State, 255 Ga. 685, 686 (2) (341 SE2d 451) (1986) (“Where an issue is raised, as to whether the probative value of evidence

14 (b) Our “evidentiary” holding in Burns II.

In Burns, the State filed a motion in limine to exclude evidence

or argument concerning the alleged victim’s past or present sexual

behavior. See Burns v. State, 345 Ga. App. 822, 823 (813 SE2d 425)

(2018) (“Burns I”). In response to the State’s motion, the defendant

argued that evidence that the victim made a prior false allegation

was not covered by the rape-shield statute and was admissible for

purposes of impeachment under OCGA § 24-6-608 (b) (“Rule 608

(b)”).5 See id. Specifically, the defendant wanted to present evidence

is outweighed by its tendency to ‘unduly arouse the jury’s emotions of prejudice, hostility or sympathy’ the trial judge has discretion to be exercised in determining admissibility.” (quoting McCormick on Evidence (2d ed.) § 185, p. 439)); Carroll v. State, 261 Ga. 553, 554 (2) (408 SE2d 412) (1991) (“Where evidence is challenged on the ground that its probative value is outweighed by its tendency to unduly prejudice the jury, the trial court must exercise its discretion in determining admissibility.”).

5 In full, Rule 608 provides:

(a) The credibility of a witness may be attacked or supported by evidence in the form of opinion or reputation, subject to the following limitations: (1) The evidence may refer only to character for truthfulness or untruthfulness; and (2) Evidence of truthful character shall be admissible only after the character of the witness for truthfulness has been attacked by opinion or reputation evidence or otherwise.

15 that, in the same one-paragraph social media post to a friend in

which the alleged victim described a sexual encounter with the

defendant, who was the victim’s stepfather, the victim also stated,

“[a]nd my brother’s best friend tried to rape me.” Id. at 822. When

asked in a forensic interview about the attempted rape, the victim

replied, “Oh, I just made that up.” Id. at 823. See id. at 822; id. at

825-826 (3). The trial court determined that the statement, although

a false one that met the Smith threshold test, “amount[ed] to an

aside in a much longer paragraph” and “lacked specificity[.]” Id. at

(b) Specific instances of the conduct of a witness, for the purpose of attacking or supporting the witness’s character for truthfulness, other than a conviction of a crime as provided in Code Section 24-6-609, or conduct indicative of the witness’s bias toward a party may not be proved by extrinsic evidence. Such instances may however, in the discretion of the court, if probative of truthfulness or untruthfulness, be inquired into on cross- examination of the witness: (1) Concerning the witness’s character for truthfulness or untruthfulness; or (2) Concerning the character for truthfulness or untruthfulness of another witness as to which character the witness being cross-examined has testified. (c) The giving of testimony, whether by an accused or by any other witness, shall not operate as a waiver of the accused’s or the witness’s privilege against self-incrimination when examined with respect to matters which relate only to character for truthfulness.

16 823. Based on these considerations, the trial court determined that

the statement about the brother’s friend did not have “significant

probative value for a fact finder otherwise charged with determining

whether the claims against the [stepfather were] true” and that “the

probative value of the statement in question [was] substantially

outweighed by the danger of unfair prejudice and confusion of the

issues[.]” Id. On this basis, the trial court granted the State’s motion

in limine and excluded the evidence pursuant to Rule 403. See id.

The Court of Appeals held that the trial court properly determined

that the Smith probable-falsity test was satisfied but held that the

trial court abused its discretion in excluding the evidence under

Rule 403. See id. at 824-825 (2); see also id. at 824 (1); id. at 825-826

(3) (holding that the defendant’s assertion that the prior accusation

evidence was also admissible under Rule 608 (b) “aligns with the

constitutional concerns . . . as set forth in Smith”). The Court of

Appeals reversed and remanded for resumption of the paused

17 proceedings. See id. at 826 (3).6

We granted certiorari in Burns II “to reconsider” our “two-fold”

decision in Smith. See Burns II, 306 Ga. at 118. The first part of our

decision in Smith that we granted certiorari to review in Burns II

was our “evidentiary” holding in Smith that Georgia’s rape-shield

law, former OCGA § 24-2-3, did not apply to prior-accusation

6 The Court of Appeals was not persuaded by the trial court’s determination that the danger of unfair prejudice and confusion of the issues substantially outweighed the probative value of the contested evidence. See Burns I, 345 Ga. App. at 825 (2). The Court of Appeals reasoned: Here, the trial court excluded evidence of the stepdaughter’s false accusation because it concluded that the evidence “lacked specificity” and created “unfair prejudice and confusion of the issues.” It is not clear, however, how a false accusation could contain adequate specificity about an incident that never occurred. And it does not seem that evidence of an allegation against a totally unrelated third party presents danger of unfair prejudice or confusion of the issues in this prosecution against one defendant, for sexual acts committed on one day, against one individual. See Smith, 259 Ga. at 137 (1) (noting that evidence of the victim’s prior false allegations about sexual misconduct of men other than the defendant involved “the victim’s propensity to make false statements regarding sexual misconduct”); see also Olden v. Kentucky, 488 U. S. 227, 232 (109 SCt 480, 102 LE2d 513) (1988) (explaining that speculation that jurors would be biased by evidence of witness’s interracial relationship did not justify exclusion of evidence having the potential to demonstrate falsity of witness’s testimony). Id. at 825 (2) (punctuation omitted). The Court of Appeals held that the trial court therefore erred in excluding the evidence under Rule 403. See id.

18 evidence and did not prohibit such evidence, because prior-

accusation evidence does not “concern[ ] the past sexual behavior of

the complaining witness.” Id. at 120-121 (2).

We held that this holding in Smith continued in force after the

enactment of OCGA § 24-4-412 as part of the 2013 Evidence Code.

Burns II, 306 Ga. at 120-121 (2). This was because Georgia’s former

rape-shield statute was not “materially identical” to the federal rule,

and, when the General Assembly adopted Georgia’s new Evidence

Code, it did not replace former OCGA § 24-2-3 with a Code section

modeled on its “federal counterpart[.]” Id. at 120 (2). Instead, the

language of the iteration of the rape-shield statute enacted as part

of the new Evidence Code “remain[ed] largely identical to the statute

it replaced[, OCGA § 24-2-3,] . . . has remained substantively

consistent for decades[,7] and has been carried over into the new

Evidence Code[.]” Id. In sum, “the focus of [Georgia’s rape-shield

statute] continues to be the exclusion of evidence concerning the

7 See Ga. L. 2011, p. 99, § 2; Ga. L. 2005, p. 20, § 13.1; Ga. L. 1989, p.

272, § 1; Ga. L. 1976, p. 741, § 1; see also Ga. L. 2019, p. 81, § 5.

19 ‘past sexual behavior of the complaining witness.’” Id. at 120-121 (2)

(punctuation omitted). Based on the continuity of the language in

Georgia’s rape-shield statute, which did not track the language of

the federal rape-shield statute, we concluded that “[o]ur evidentiary

holding in Smith is consistent with the decades-old plain language

of the Rape Shield Statute and remains good law in the era of the

new Evidence Code.” Id. at 121 (2).

(c) Our “constitutional” holding in Burns II.

The second part of the “two-fold” decision in Smith that we

granted certiorari to review in Burns II was Smith’s “constitutional”

holding, where this Court, “seemingly rel[ying] on the Sixth and

Fourteenth Amendments[,] . . . create[d] a per se rule of

admissibility for evidence of prior false allegations where falsity has

been established, notwithstanding other rules of evidence.” Burns

II, 306 Ga. at 121 (2). The only check recognized in Smith on the per

se rule of admissibility was the requirement that, before such

evidence can be admitted, the trial court must make a threshold

determination “that a reasonable probability of falsity exists.”

20 Smith, 259 Ga. at 137 (1) (citation and punctuation omitted). The

inclusion of the phrase “where falsity has been established” when

we framed Smith’s “constitutional” holding indicates that we

considered Smith’s probable-falsity threshold test to be an integral

part of the per se rule of admissibility. Burns II, 306 Ga. at 121 (2).

In Burns II, this Court held that Smith’s “constitutional”

holding was “wrongly decided.” Burns II, 306 Ga. at 120 (2). It

follows that, when we jettisoned Smith’s rule of per se admissibility

of prior-accusation evidence, the threshold finding of probable

falsity standing alone could not and did not remain in effect under

the 2013 Evidence Code. In Burns II, we overruled or disapproved

numerous Georgia appellate court decisions that applied Smith’s

probable-falsity standard. See id. at 124 (2) & n. 3. As we explained

in Burns II, courts should determine the admissibility of prior-

accusation evidence by “applying the familiar and usual rules of

evidence,” laid out in the current Evidence Code, “which trial courts

routinely do every day.” Burns II, 306 Ga. at 124 (2).

As noted above, our case law appears to have generated

21 confusion over what we meant when we stated that “the evidentiary

holding of Smith . . . survived the enactment of Georgia’s new

Evidence Code[.]” Burns II, 306 Ga. at 120 (2). To clarify, this

evidentiary holding was not the requirement that a trial court must

first determine whether a victim’s prior accusation was probably

false before admitting that evidence. Rather, the evidentiary holding

of Smith that we reaffirmed in Burns II was that the rape-shield

statute, OCGA § 24-4-412 (former OCGA § 24-2-3), does not

categorically bar prior-accusation evidence. See Burns II, 306 Ga. at

119 (1); id. at 119-120 (2); Vallejo, 362 Ga. App. at 53-57 (1)-(2)

{McFadden, J., dissenting). See also Division 2 (b), supra.8 To the

extent that other cases decided after Burns II were premised on the

mistaken understanding that the requirement of a threshold

determination of probable falsity was the “evidentiary holding” of

Smith that remained good law after Burns II, those cases are

8 In Smith, we addressed another evidentiary issue, concerning expert

testimony, see Smith, 259 Ga. at 138 (2), but we did not address that issue in Burns II.

22 overruled in that respect.9

(d) Our Rule 403 analysis in Burns II.

In Burns II, after affirming Smith’s evidentiary holding and

reversing its constitutional holding, we then turned to “how OCGA

§ 24-4-403 applies to evidence of prior false allegations by a

complaining witness in a sexual offense prosecution.” Burns II, 306

Ga. at 125 (3).10 Noting that Georgia’s Rule 403 “tracks its federal

counterpart,” we looked to decisions of the United States Supreme

9 See, e.g., Vallejo, 362 Ga. App. at 38 (1) (“[T]he threshold determination

requirement remains good law after Burns [II].”); State v. Parks, 350 Ga. App. 799, 811-812 (2) (830 SE2d 284) (2019) (After Burns II, “before [prior- accusation] evidence can be admitted, the trial court must make a threshold determination outside the presence of the jury that a reasonable probability of falsity exists.” (citation and punctuation omitted)).

10 Initially we deemed “incorrect” the Court of Appeals’s “determin[ation

in Burns I] that OCGA § 24-4-403 does not apply to false allegation evidence such as that at issue here.” Burns II, 306 Ga. at 125 (3). However, this conclusion somewhat oversimplified the Burns I holding. Although the Court of Appeals stated that, under Smith, Rule 403’s “exclusionary rule must yield to greater constitutional concerns[,]” Burns I, 345 Ga. App. at 824 (2), the Court of Appeals did not hold categorically that Rule 403 does not apply to prior- accusation evidence. The Court of Appeals reviewed on the merits the trial court’s pretrial Rule 403 analysis of the particular prior-accusation evidence that was contested by the defendant and concluded that, under the circumstances of the case, exclusion of that evidence “was erroneous.” See id. at 825 (2).

23 Court and held that “there [was] no constitutional impediment to

applying OCGA § 24-4-403” in that case. Id. at 125-126 (3).11 We then

reviewed on the merits the trial court’s Rule 403 analysis. Id. We

reasoned that,

[i]n a sexual offense prosecution, where, like here, the case comes down to witness credibility, evidence that the complaining witness has made a prior false allegation of sexual misconduct is not of “scant” probative force.[12] See Olds[ v. State, 299 Ga. 65, 76 (2) (786 SE2d 633) (2016)] (recognizing that the probative value of disputed evidence depends, in part, upon the need for such evidence). As to the issue of “unfair prejudice,” the primary concern is that a jury will decide a case on an improper basis, commonly, though not necessarily, an emotional one. Here, it is unclear how [the complaining witness’s] admittedly false statement would inflame passions of the jury or inspire an emotional decision rather than facilitate a reasoned

11 See Holmes v. South Carolina, 547 U. S. 319, 324-326 (II) (126 SCt

1727, 164 LE2d 503) (2006) (“[T]he exclusion of defense evidence under rules that serve no legitimate purpose or that are disproportionate to the ends that they are asserted to promote[ ]” violates a criminal defendant’s constitutional guarantee of “a meaningful opportunity to present a complete defense,” but “well-established rules of evidence[,]” including Rule 403, “permit trial judges to exclude evidence if its probative value is outweighed by certain other factors such as unfair prejudice, confusion of the issues, or potential to mislead the jury.” (citation and punctuation omitted)).

12 See Hood v. State, 299 Ga. 95, 103 (4) (786 SE2d 648) (2016) (“The

major function of Rule 403 is to exclude matter of scant or cumulative probative force, dragged in by the heels for the sake of its prejudicial effect. United States v. Utter, 97 F3d 509, 514-515 (11th Cir. 1996).” (punctuation omitted)).

24 decision based on the evidence and determinations of credibility. Finally, with respect to “confusion of the issue,” this prosecution involves one defendant and a single incident that allegedly occurred in July 2015. The false allegation at hand plainly describes an event involving someone else at a separate time; there is no basis for confusion.

Id. (citation and punctuation omitted). Thus, we concluded, the trial

court abused its discretion in excluding the evidence under Rule 403.

Id. We affirmed the Court of Appeals’s judgment, which reversed the

trial court’s ruling and remanded the case. Id.

Our categorical statement in Burns II that, in a sex offense

prosecution turning on witness credibility, “evidence that the

complaining witness has made a prior false allegation of sexual

misconduct is not of ‘scant’ probative force” was overly broad. Burns

II, 306 Ga. at 126 (3). As we discuss in greater detail in Division 2

(e), infra, the determination under OCGA § 24-4-401 (“Rule 401”) of

whether evidence meets the statutory definition of relevance and the

determination under Rule 403 of whether the probative value of

relevant evidence is substantially outweighed by the danger of

unfair prejudice, confusion of the issues, or misleading the jury or

25 by considerations of undue delay, waste of time, or needless

presentation of cumulative evidence are both “fact-bound

analys[es]” that “must turn on the facts of each specific case[.]”

Chrysler Group v. Walden, 303 Ga. 358, 367 (II) (A), 371 (II) (B) (812

SE2d 244) (2018) (citation and punctuation omitted). See also

Morrell v. State, 313 Ga. 247, 259 (2) (b) (869 SE2d 447) (2022)

(“Because each case is unique, Rule 403 balancing is a highly

context-specific inquiry; there are few categorical rules.” (citation

and punctuation omitted)). For example, in a case where a defendant

is accused of child molestation based on an act of fondling his

stepdaughter, the defense intends to argue that the alleged victim

falsely accused the defendant in retaliation for discipline he

imposed, and the defense wishes to adduce evidence that the alleged

victim had falsely accused a number of other known authority

figures of fondling her in order to retaliate for disciplining her, a

trial court could reasonably determine that the prior-accusation

26 evidence has significant probative value.13 If, on the other hand, a

defendant is accused of raping a middle-aged stranger and wishes to

adduce evidence that the alleged victim as a minor had falsely

accused her stepfather of fondling her many years earlier, a trial

court could reasonably determine that the prior-accusation evidence

has only minimal probative value. Therefore, courts should not cite

Burns II as authority for the categorical proposition that evidence

that the complaining witness in a sex offense prosecution had made

13 See Secretary, Florida Dept. of Corrections v. Baker, 406 Fed. Appx.

416, 424-425 (IV) (11th Cir. 2010) (A defendant convicted under Florida law of sexual battery on a child under 16 years of age, who was his sister-in-law, was entitled to a writ of habeas corpus for a violation of his rights under the Sixth and Fourteenth Amendments, where the state trial court excluded evidence that the alleged victim had repeatedly lied about sexual assaults by other male family members. In granting habeas relief, the district court determined that the trial court excluded the evidence, not “out of concerns such as harassment, prejudice, confusion, or a policy of protecting sexual-assault victims,” but in light of Florida’s rules of evidence regarding impeachment. In affirming the district court’s ruling, the Court of Appeals determined that the alleged victim’s truthfulness was “key to the prosecution,” that the evidence of the victim’s prior false accusations “not only spoke to her general character for truthfulness, but particularly attacked her truthfulness and motivation for testifying as they related directly to her allegation” against the defendant, that the prior-accusation evidence had “strong potential to demonstrate the falsity of her testimony in [the defendant’s] case,” and that “a reasonable jury might have received a significantly different impression of her credibility had defense counsel been permitted to pursue his proposed line of cross-examination.” (citation and punctuation omitted)).

27 a prior false accusation of sexual misconduct will in every case have

sufficient probative value to pass a Rule 403 balancing test.

(e) Application of the 2013 Evidence Code to prior-accusation evidence.

Under Smith and its progeny, prior-accusation evidence was

admitted or excluded under rules and procedures that were specific

to that one category of evidence. As we have explained, the 2013

Evidence Code created a “new evidence world” in Georgia. State v.

Orr, 305 Ga. 729, 736 (3) (827 SE2d 892) (2019) (punctuation

omitted). “The [2013 Evidence] Code, which was modeled in large

part on the Federal Rules of Evidence, is far more extensive and

comprehensive than the statutes it replaced[.]” Id. The 2013

Evidence Code “precludes courts from promulgating or perpetuating

judge-made exclusionary rules of evidence . . . and instead generally

requires trial courts to determine the admissibility of evidence based

on the facts of the specific case and the rules set forth in the

Evidence Code[.]” Id. at 729. See also id. at 738 (3) (OCGA § 24-4-

402 “was modeled on Federal Rule of Evidence 402, which was

28 designed to wipe the slate clean of judicially created limitations on

the admissibility of relevant evidence, replacing them with new,

codified rules of exclusion.” (citation and punctuation omitted)). In

particular, the 2013 Evidence Code does not provide any category-

specific rules for prior-accusation evidence, and courts therefore

should determine the admissibility of such evidence based on the

rules applicable to evidence in general. See id. at 736-737 (3).

Although Smith’s threshold probable-falsity test no longer

applies, the trial court still has a gatekeeping role under the 2013

Evidence Code in addressing preliminary questions about what

evidence reaches the jury. See Wilson v. State, 312 Ga. 174, 184 (1)

(c) (860 SE2d 485) (2021) (discussing OCGA § 24-1-104 (“Rule 104”)).

A fundamental question is relevancy, because relevant evidence is

admissible, unless a specific exception applies, and irrelevant

evidence is inadmissible. See OCGA § 24-4-402 (“Rule 402”);14 Baker

14 In full, Rule 402 provides: “All relevant evidence shall be admissible,

except as limited by constitutional requirements or as otherwise provided by law or by other rules, as prescribed pursuant to constitutional or statutory authority, applicable in the court in which the matter is pending. Evidence

29 v. State, 318 Ga. 431, 440-441 (2) (a) (899 SE2d 139) (2024); Orr, 305

Ga. at 736-737 (3).15 If a defendant wishes to adduce prior-accusation

evidence, the State may object and argue that the evidence is not

relevant to the charges at issue. “Rule 401 first defines relevant

evidence broadly as ‘evidence having any tendency to make the

existence of any fact that is of consequence to the determination of

the action more probable or less probable than it would be without

the evidence.’” Orr, 305 Ga. at 736 (3).16 “The test for relevance is

generally a liberal one, and relevance is a binary concept — evidence

is relevant or it is not.” Baker, 318 Ga. at 440 (2) (a) (citation and

punctuation omitted). Under Rule 104 (a), preliminary questions

concerning the admissibility of evidence are resolved by the trial

court by a preponderance of the evidence standard. See Bradshaw

which is not relevant shall not be admissible.”

15 See Harris v. State, 314 Ga. 238, 264 (3) (a) (875 SE2d 659) (2022)

(Rule 402 “is modeled on its counterpart in the Federal Rules of Evidence, [and, therefore,] we may look to federal appellate precedents interpreting the pertinent federal rule for guidance in applying the state provision.”).

16 See Harris, 314 Ga. at 264 (3) (a) (Rule 401 “is modeled on its federal

counterpart.”).

30 v. State, 296 Ga. 650, 656 (3) n.4 (769 SE2d 892) (2015) (“Our new

Evidence Code . . . adopted the preponderance of the evidence

standard for preliminary factual questions regarding the

admissibility of evidence.” (citation omitted)); Rule 104 (a).17 Under

17 In full, Rule 104 provides:

(a) 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. (b) 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. (c) 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. (d) The accused shall not, by testifying upon a preliminary matter, become subject to cross-examination as to other issues in the proceeding. (e) This Code section shall not limit the right of a party to introduce before the jury evidence relevant to weight or credibility. With respect to the portion of Rule 104 (a) that references trial courts not being “bound by the rules of evidence except those with respect to privileges,” a leading Georgia evidence treatise has explained that “in making admissibility determinations under [Rule 104 (a)], the court may consider hearsay and other non-privileged material that generally would be inadmissible under the Federal Rules of Evidence.” See Ronald L. Carlson & Michael Scott Carlson, Carlson on Evidence 40 (9th ed. 2024).

31 Rule 104 (b), when the relevancy of evidence depends upon proof of

a conditional fact, the trial court examines all the evidence in the

case and admits the evidence if a jury could reasonably find the

conditional fact by a preponderance of the evidence. See Huddleston

v. United States, 485 U. S. 681, 690 (108 SCt 1496, 99 LE2d 771)

(1988); 2 Jones on Evidence, § 11:23 (7th ed.).

Since Burns II, the Court of Appeals has generally regarded

prior-accusation evidence to be relevant and has considered the

admissibility of such evidence in terms of Rule 403,18 “which grants

the trial court discretion to exclude relevant evidence ‘if its probative

value is substantially outweighed by the danger of unfair prejudice,

confusion of the issues, or misleading the jury or by considerations

of undue delay, waste of time, or needless presentation of cumulative

evidence.’” See Orr, 305 Ga. at 737 (3) (emphasis omitted), quoting

Rule 403. While relevance is a binary concept, as noted above,

18 See Vallejo, 362 Ga. App. at 38-41 (2); Ray v. State, 356 Ga. App. 266,

269 (841 SE2d 477) (2020).

32 “probative value is relative.”19 Jones v. State, 301 Ga. 544, 546 (1)

(802 SE2d 234) (2017) (quoting Olds, 299 Ga. at 75 (2)). “Generally

speaking, the greater the tendency to make the existence of a fact

more or less probable, the greater the probative value.” Baker, 318

Ga. at 441 (2) (a). Probative value depends on the quality of the

evidence, the strength of its logical connection to the fact for which

it is offered, its marginal worth when there is other proof available

19 We disapprove the Court of Appeals’s statement in Ray that, under

Rule 403, in order to make a definitive determination of whether . . . testimony [that the person who reported the alleged rape victim’s outcry to the police had previously made false accusations of sexual abuse against other men] was relevant, the trial court was obligated to consider whether the probative value of the evidence was “substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence.” Ray, 356 Ga. App. at 269. As we have explained, “[r]elevance and probative value [under the 2013 Evidence Code] are related, but distinct, concepts.” Olds, 299 Ga. at 75 (2). See also Jones v. State, 301 Ga. 544, 546-547 (1) (802 SE2d 234) (2017). Although “an accurate assessment of probative value is an essential part of a proper application” of Rule 403’s balancing test for the admissibility of relevant evidence, an assessment of probative value plays no part in a ruling on relevance under Rule 401. Id. at 546 (1). See also Olds, 299 Ga. at 75 (2).

33 to establish the same fact, and the need for the evidence in proving

a fact that is reasonably susceptible of dispute. See id.

Georgia’s Rule 403 “mirrors Federal Rule of Evidence 403, and

we have accordingly interpreted our State’s new rule in light of the

federal appellate decisions interpreting the federal rule.” Orr, 305

Ga. at 737 (3). See also Ga. L. 2011, p. 99, § 1. “Looking to Eleventh

Circuit precedent, we have explained that Rule 403 requires the

trial court to apply the rule’s balancing test to the facts and

circumstances of the particular case at hand: There is no mechanical

solution for this balancing test.” Orr, 305 Ga. at 737 (3) (citation and

punctuation omitted). Rather, “a trial court must undertake in each

case a considered evaluation of the proffered justification for the

admission of such evidence and make an independent determination

of whether the probative value of the evidence is ‘substantially

outweighed’” by any of the negative effects laid out in Rule 403. Id.

(citation and punctuation omitted). And in conducting a Rule 403

analysis of proposed evidence, courts can take into account the risk

that presenting evidence of certain conduct would result in a “mini-

34 trial,” where the evidence does not bear directly on the charges at

issue and where the conduct is not conceded by all to have taken

place. See Strong v. State, 309 Ga. 295, 317 (4) & n.23 (845 SE2d

653) (2020).20 As we have emphasized, however, “the exclusion of

[relevant] evidence under Rule 403, is an extraordinary remedy that

should be used only sparingly to exclude matter of scant or

cumulative probative force, dragged in by the heels for the sake of

20 See also United States v. Crow Eagle, 705 F3d 325, 329 (III) (8th Cir.

2013) (holding that, because the defendant provided weak proof of the falsity of the alleged victims’ previous allegations of sexual assault by other men, relying only on a long delay between the alleged assaults and reports and the lack of prosecution, and because admission of the evidence would have triggered mini-trials concerning allegations unrelated to the defendant’s case, and thus increased the danger of jury confusion and speculation, the district court did not abuse its discretion or violate the defendant’s Sixth Amendment rights by excluding evidence of the prior sexual-assault allegations); United States v. Frederick, 683 F3d 913, 919 (I) (A) (8th Cir. 2012) (holding that the probative value of cross-examination of an alleged sexual abuse victim about prior allegedly false accusations of sexual abuse against third parties was substantially outweighed by the danger of unfair prejudice from jury confusion and mini-trials concerning allegations unrelated to the defendant’s case); United States v. Tail, 459 F3d 854, 860 (III) (C) (8th Cir. 2006) (“[I]n a sexual abuse case, evidence alleging that the accuser made prior false accusations may be excluded [under Fed. R. Evid. 403] if the evidence has minimal probative value. And the propriety of excluding such evidence is strengthened where the prior incident is unrelated to the charged conduct, and where the defendant intends to use the evidence as part of an attack on the ‘general credibility’ of the witness.” (citations omitted)).

35 its prejudicial effect.” Orr, 305 Ga. at 737-738 (3) (citation and

punctuation omitted). See also Wilson, 312 Ga. at 190 (2) (“[I]n

reviewing the admission of evidence under Rule 403, we look at the

evidence in a light most favorable to its admission, maximizing its

probative value and minimizing its undue prejudicial impact.”

(citation and punctuation omitted)).

The fact that prior-accusation evidence may no longer be

excluded under Smith and its progeny, however, does not mean that

it may be excluded only pursuant to Rule 403, as Gallegos-Munoz

infers from Burns II. Many rules in the Evidence Code “embody

legislative policy decisions” about the risks of negative effects

“associated with certain categories of evidence, including the 15

rules in Chapter 4 that authorize the exclusion of certain specific

types of evidence.” Orr, 305 Ga. at 737 (3) (citing OCGA §§ 24-4-404

through 24-4-418). See also Burns II, 306 Ga. at 125-126 (3) (“[T]he

United States Supreme Court has recognized that Rule 403 is one of

any number of familiar and unquestionably constitutional

evidentiary rules that authorizes the exclusion of relevant

36 evidence.” (citation and punctuation omitted)). The Evidence Code’s

rules of exclusion may apply separate and apart from the clarified

Burns II analysis that we explain today. For example, the inference

that a defendant wishes the jury to draw from prior-accusation

evidence is generally that the alleged incident with the defendant

did not happen or that the testifying alleged victim lacks credibility

regarding the defendant’s alleged offense, based on evidence that

the victim had falsely accused someone other than the defendant of

sexual abuse. Such inferences implicate at least two types of

propensity or character evidence21 that are generally subject to

exclusion: evidence of the character of a person in order to show

action in conformity therewith on a particular occasion under OCGA

§ 24-4-404 (“Rule 404”) or extrinsic evidence of specific instances of

the conduct of a witness for the purpose of attacking the witness’s

21 See Burns II, 306 Ga. at 118-119 (1) (“[T]estimony of previous false

allegations by the victim . . . involve[s] . . . the victim’s propensity to make false statements regarding sexual misconduct.” (citation and punctuation omitted)); Smith, 259 Ga. at 137 (1) (“[E]vidence of prior false allegations by the victim . . . involve[s] . . . the victim’s propensity to make false statements regarding sexual misconduct.”).

37 character for truthfulness under Rule 608.22

The rules of exclusion for propensity or character evidence are

subject to exceptions. Character evidence may be admissible under

Rule 404 (a) (2) as to “a pertinent trait of character of the alleged

victim” of a crime; or, as the defendant in Burns II argued, on cross-

examination under Rule 608 (b), to show “[s]pecific instances of the

conduct of a witness, for the purpose of attacking . . . the witness’s

character for truthfulness.” Other rules applicable to specific

circumstances may apply. Whichever rules are invoked by the State

as a basis for objecting to prior-accusation evidence, or by the

defendant in arguing against an objection, the standards generally

applicable under the Code sections relied upon will apply.

(f) Because the trial court and the Court of Appeals believed

22 See United States v. Farmer, 923 F2d 1557, 1567 (IV) (D) (11th Cir.

1991) (“The witness’s motive to testify falsely is merely an aspect of credibility controlled by Fed. R. Evid. 608.” (quoting United States v. Sampol, 636 F2d 621, 659 (III) (A) n.24 (D.C. Cir. 1980))); Douglas v. State, 340 Ga. App. 168, 173 (2) n.13 (796 SE2d 893) (2017) (citing Ronald L. Carlson & Michael Scott Carlson, Carlson on Evidence, p. 327 (4th ed. 2016) (“Prior false allegations of sexual misconduct are considered in federal and state courts under Rule 608 (b).”)).

38 incorrectly that the now-displaced probable-falsity standard

adopted in Smith applied in this case, they did not conduct the

analysis required by the 2013 Evidence Code. See Orr, 305 Ga. at

739 (3); see also id. at 743 (4) (c). We therefore vacate the Court of

Appeals’s judgment that affirmed the trial court’s judgment and

affirmed the denial of Gallegos-Munoz’s motion for a new trial. We

direct the Court of Appeals to vacate the trial court’s rulings and

remand the case for further proceedings consistent with this

opinion.23

Judgment vacated and case remanded with direction. All the Justices concur.

23 If on remand the trial court determines that the prior-accusation evidence was properly excluded under the applicable rules of evidence, it should enter an order to that effect and reinstate Gallegos-Munoz’s conviction. See Ray, 356 Ga. App. at 270. If, on the other hand, the trial court determines that the prior-accusation evidence was improperly excluded under the applicable rules of evidence, it should consider whether Gallegos-Munoz was prejudiced by the error and conduct further proceedings accordingly. Id.

39 Decided September 17, 2024.

Certiorari to the Court of Appeals of Georgia — 369 Ga. App.

277.

Clark & Towne, David E. Clark, for appellant.

Patsy Austin-Gatson, District Attorney, John S. Melvin,

Clifford L. Kurlander, John Williams, Assistant District Attorneys,

for appellee.