Case Information
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FINAL COPY
S18G0585. THE STATE v. ALMANZA.
P ETERSON , Justice.
We granted certiorari to decide whether hearsay identifying the alleged sexual abuser of a child victim is admissible under the hearsay exception for statements made for purposes of medical diagnosis or treatment found in OCGA § 24-8-803 (4) (“Rule 803 (4)”). Under the new Evidence Code, we know that Georgia evidence rules that track the federal rules are to be interpreted according to federal case law, while rules that were instead carried over from the old Evidence Code are to be interpreted according to our case law interpreting the old Code. But Georgia Rule 803 (4) is materially identical to both an existing federal rule and a provision of the old Georgia Evidence Code. Federal case law construing Federal Rule of Evidence 803 (4) has held that the identity of an alleged child sexual abuser may, in certain circumstances, be admissible. Georgia case law construing the old state rule held that such evidence was not admissible. Because the fundamental rule of the new Evidence Code is that *2 federal appellate case law applies when a Georgia rule is materially identical to a federal rule and has not yet been interpreted by a Georgia appellate court, we conclude that the new Evidence Code displaced our old Georgia precedent and so federal case law applies here. Accordingly, Rule 803 (4) permits the admission of identity in child sexual abuse cases when reasonably pertinent to medical diagnosis or treatment. We reverse the Court of Appeals’s decision to the contrary and remand with instructions to vacate the trial court’s order and remand for further proceedings consistent with this opinion.
1. The relevant facts as recounted by the Court of Appeals show that in May 2014, Almanza’s stepdaughter told her mother that Almanza had twice molested her approximately one year earlier. The mother reported these accusations to the police, who arrested Almanza on May 28, 2014. The police instructed the mother to take the child for a physical exam at Children’s Healthcare of Atlanta, which the mother did on May 29, 2014.
At the pediatric emergency room, Dr. Lynward Barrett examined the child. Dr. Barrett testified that the mother reported that her daughter had told her that *3 Almanza had molested her on two occasions by touching the child’s vagina and by placing his penis “inside of her.” The mother also told Dr. Barrett that the child said these acts had taken place approximately one year earlier. Dr. Barrett performed a physical examination of the child, consulted with a social worker to ensure law enforcement was involved and that the abuser no longer had access to the child, and referred the child for psychological counseling. Dr. Barrett testified that he obtained all of his information from the mother, only questioned the mother, and did not recall the child saying anything before, during, or after the exam.
Dr. Charles Richards, the child’s regular pediatrician, testified that he saw the child and her mother at his office on June 6, 2014, for treatment of the child’s viral symptoms. Dr. Richards testified that, as he was finishing the exam of the child, the mother became emotional and said the child had recently reported that approximately one year earlier Almanza had raped her on two different occasions. Dr. Richards similarly testified that he received all of the information regarding the allegations of sexual molestation from the mother and that the child did not say anything during this visit.
After indicting Almanza on charges of child molestation, incest,
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aggravated sexual battery, statutory rape, and aggravated child molestation, the
State became unable to locate either the mother or the child. The State thereafter
filed a motion in limine to obtain a ruling on the admissibility of the mother’s
statements to both doctors. Following a hearing on the motion, the trial court
ruled that the doctors would be allowed to testify at trial to any findings they
made during the physical examination of the child and to the mother’s
statements regarding the fact the child had reported being sexually abused. But
the trial court also ruled that neither physician could testify as to “[a]ny
identification of [Almanza] as the abuser.” The State appealed that ruling, and
the Court of Appeals affirmed. State v. Almanza,
The Court of Appeals held that the trial court did not abuse its discretion
in refusing to admit the mother’s statements of identification because such
statements of identity are categorically inadmissible under Rule 803 (4).
Almanza,
The Georgia precedent upon which the Court of Appeals relied did not survive the adoption of the new Evidence Code. The Eleventh Circuit decisions that the Court of Appeals alternatively relied upon did not decide the question before us regarding the application of Rule 803 (4) in the context of child sexual abuse; the federal precedent the Court of Appeals rejected did decide that question. We apply that federal precedent and conclude that the Court of Appeals’s categorical bar on the admissibility of identification under Rule 803 (4) in child sexual abuse cases was error.
2. Georgia’s new Evidence Code largely mirrors the Federal Rules of Evidence. This is by design. The preamble to the act adopting the new Evidence Code is explicit:
It is the intent of the General Assembly in enacting this Act to adopt the Federal Rules of Evidence, as interpreted by the Supreme Court of the United States and the United States circuit courts of appeal[s] as of January 1, 2013, to the extent that such interpretation is consistent with the Constitution of Georgia. Where conflicts were found to exist among the decisions of the various circuit courts of appeal[s] interpreting the federal rules of evidence, the General Assembly considered the decisions of the 11th Circuit Court of Appeals. It is the intent of the General Assembly to revise, modernize, and reenact the general laws of this state relating to evidence while adopting, in large measure, the Federal Rules of Evidence. The General Assembly is cognizant that there are many issues regarding evidence that are not covered by the Federal Rules of Evidence and in those situations the former provisions of Title 24 have been retained. Unless displaced by the particular provisions of this Act, the General Assembly intends that the substantive law of evidence in Georgia as it existed on December 31, 2012, be retained.
Ga. L. 2011, pp. 99, 100 § 1. This preamble, though not codified, is a clear
instruction manual for courts trying to decipher what the new Evidence Code
purports to do and what precedent to apply. Like any instructions, it is best to
read them, and they must be read in order. First, the General Assembly stated
that the primary aim of the new Code was to “adopt the Federal Rules of
Evidence” as “interpreted by” federal appellate courts “as of January 1,
2013[.]” Second, if a conflict exists among the federal appellate courts, we look
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to the “decisions of the 11th Circuit.” Third, courts are to look to the
“substantive law of evidence in Georgia as it existed on December 31, 2012,”
only when not displaced by the new code. Id. See also Glenn v. State, 302 Ga.
276, 280 (II) n. 4 (
Thus, the rule is simple: if a rule in the new Evidence Code is materially
identical to a Federal Rule of Evidence, we look to federal case law. Glenn, 302
Ga. at 280 (II) n. 4 (“By using language nearly identical to Federal Rule of
Evidence 701 (a), . . . the enactment of OCGA § 24-7-701 (a) was a statutory
modification to the admissibility of such evidence and
displaced prior precedent
on the matter
.” (emphasis added)); Davis v. State,
and is interpreted accordingly.”); Olds v. State,
633) (2016) (“[W]hen we have considered the meaning of [OCGA § 24-4-404 (b)], we consistently have looked for guidance in the decisions of the federal appellate courts construing and applying Federal Rule of Evidence 404 (b).”).
If there is no materially identical Federal Rule of Evidence and a provision
of the old Evidence Code was retained in the new Code, our case law
interpreting that former provision applies. Watson v. State,
This case presents an unusual situation: Rule 803 (4) is materially identical both to Federal Rule 803 (4) and to the medical treatment and diagnosis hearsay exception under the old Evidence Code (former OCGA § 24- 3-4). Rule 803 (4) reads:
The following shall not be excluded by the hearsay rule, even though the declarant is available as a witness:
. . .
Statements for purposes of medical diagnosis or treatment . Statements made for purposes of medical diagnosis or treatment and describing medical history, or past or present symptoms, pain, or sensations, or the inception or general character of the cause or external source thereof insofar as reasonably pertinent to diagnosis or treatment[.]
OCGA § 24-8-803 (4); see also former OCGA § 24-3-4 (same). Federal Rule 803 (4) was the same:
The following are not excluded by the hearsay rule, even though the declarant is available as a witness:
. . .
Statements for purposes of medical diagnosis or treatment . Statements made for purposes of medical diagnosis or treatment and describing medical history, or past or present symptoms, pain, or sensations, or the inception or general character of the cause or external source thereof insofar as reasonably pertinent to diagnosis or treatment.
Fed. R. Evid. 803 (4) (2011). These provisions are identical; the only difference is the Georgia provision says covered statements “shall not be excluded,” while the federal provision says they “are not excluded.”
Although this is the first time we have considered a provision of the new Evidence Code that is materially identical to both the old Code and the federal rules, the principles outlined above still apply. The General Assembly was crystal clear in conveying its intent that Georgia’s new Evidence Code was primarily enacted to adopt the Federal Rules of Evidence. And to the extent the General Assembly adopted the Federal Rules of Evidence, it did so “as interpreted” by the federal appellate courts as of the effective date of the new Code. Ga. L. 2011, p. 100 § 1. As such, they not only plainly adopted the language of the Federal Rules of Evidence, but they also did so in the light of federal precedent addressing each issue of evidence covered by those same *11 rules. Id. Thus, under the new Evidence Code, when the provision is materially identical to a federal rule, it also reflects the federal rule’s meaning, displacing any other.
In this case, Rule 803 (4) materially mirrors Federal Rule 803 (4). Having found a Federal Rule of Evidence using materially identical language that addresses the evidentiary issue covered by Rule 803 (4), the question of whether to apply state or federal precedent ends: we look to federal appellate precedent until a Georgia appellate court decides the issue under the new Code. The fact that the words of the medical treatment and diagnosis hearsay exception remain substantively unchanged between the old and new Evidence Code is inconsequential; because the state rule mirrors Federal Rule 803 (4), it is now read as interpreted by the federal appellate courts as of the effective date of the new Code.
3. Having decided that we look to federal precedent in construing Rule
803 (4), the next question is what federal precedent controls. Again, the
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preamble is clear: decisions of “the Supreme Court of the United States and the
United States circuit courts of appeal[s]” as of the effective date of the new
Code. Ga. L. 2011, p. 100 § 1. In the case of conflicts “among the decisions of
the various circuit courts of appeal[s] in interpreting the federal rules of
evidence,” the precedent of the Eleventh Circuit prevails. Id. See Chrysler, 303
Ga. at 361 (II); Glenn,
The Advisory Committee Note on Federal Rule 803 (4) explains that the
justification for the medical diagnosis and treatment hearsay exception is the
underlying “guarantee of trustworthiness” of statements “made for purposes of
diagnosis or treatment.” Fed. R. Evid. 803 (4), Advisory Committee Note. This
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guarantee “also extends to statements as to causation, reasonably pertinent to the
same purposes[.]” Id. In contrast, the note explains that “[s]tatements as to fault
would
not ordinarily
qualify under this latter language[,]” not being reasonably
pertinent to medical diagnosis or treatment. Id. (emphasis added). Ordinarily,
identity is relevant only to establish fault and is entirely unrelated to medical
diagnosis or treatment. Id. (“Thus a patient’s statement that he was struck by an
automobile would qualify but not his statement that the car was driven through
a red light.”). Federal circuits, however, have noted that child sexual abuse cases
do not necessarily fall within this general rule. See, e.g., Renville, 779 F2d at
436 (“[A] statement by a child abuse victim that the abuser is a member of the
victim’s immediate household presents a sufficiently different case from that
envisaged by the drafters of [R]ule 803 (4) that it should not fall under the
general rule.”); compare Darden,
The Eleventh Circuit has not directly addressed the admissibility of identification testimony in child sexual abuse cases under Federal Rule 803 (4), and its precedent distinguishing between causation and fault in other contexts is of little help in deciding the specific evidentiary issue presented here. Accordingly, we must look to federal appellate court precedent beyond the Eleventh Circuit to evaluate the scope of Federal Rule 803 (4).
No circuit has held that testimony regarding the identification of an
alleged child abuser is categorically inadmissible under Federal Rule 803 (4).
Some appellate courts have allowed identification testimony in child sexual
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abuse cases under Federal Rule 803 (4). See Morgan v. Foretich, 846 F2d 941,
948-950 (4th Cir. 1988); United States v. Kappell,
812-813 (9th Cir. 1995); cf. Danaipour v. McLarey,
Cir. 2004) (admitting evidence in a civil case); United States v. Joe,
Some circuits have elected to provide no more guidance than the statutory
language itself. See, e.g., Joe,
This is consistent with the text of the rule. The first part of Rule 803 (4)
permits statements “made for purposes of medical diagnosis or treatment and
describing . . . the inception or general character of the cause or external source
thereof[.]” OCGA § 24-8-803 (4). This language underscores that statements
made to a provider for the purpose of diagnosis or treatment may be admissible
because the self-interested motivation of the declarant in wanting effective
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diagnosis or treatment (for themselves or others about whose health they care)
[10]
makes it more likely that the statements made for that purpose are true. See
White v. Illinois,
Given this basis for finding these statements reliable, assessing the
validity of the declarant’s “motive” is critical under the Renville test. In seeking
medical treatment and diagnosis for sexual abuse, the medical need for
truthfulness about the identity of the alleged abuser may not be known to the
patient. See United States v. Gabe,
As such, the Renville test acts as an effective gatekeeper for the admissibility of statements under the medical diagnosis and treatment hearsay exception in Federal Rule 803 (4). It is a rigorous standard for the admission of identity statements in child sexual abuse cases that simultaneously takes account of their important role in the medical treatment of child sexual abuse victims and the need of trial courts to ensure the reliability of admitted testimony. It is also a test that is consistent with the text of the rule. That test is *21 the standard Georgia courts must apply.
4. Having determined that identification testimony in child sexual abuse cases may be admissible, providing that it complies with the test set forth in Renville, Almanza’s statutory claims are unavailing.
The Court of Appeals found that the continued existence of the Child
Hearsay Statute (OCGA § 24-8-820 (“Rule 820”)) in the new Evidence Code
affects the meaning of Rule 803 (4). See Almanza,
As such, the Court of Appeals’s holding that identification testimony in child sexual abuse cases was categorically barred under Rule 803 (4) was error. The trial court must consider admissibility of such evidence under Rule 803 (4) in the light of the Renville test. [13] Accordingly, we reverse the Court of Appeals’s decision and remand with instructions to vacate the trial court’s order and remand for further proceedings consistent with this opinion. [14] *23 Judgment reversed and case remanded with direction. All the Justices concur, except Bethel, J., disqualified.
prosecution”), there may be specific instances when the government’s involvement in
procuring the statement raises serious Confrontation Clause concerns. See Ohio v. Clark, __
SE2d __ (
Decided October 9, 2018.
Certiorari to the Court of Appeals of Georgia —
The Merchant Law Firm, John B. Merchant III, Ashleigh B. Merchant, for appellee.
Andrew H. Agatston; Isenberg & Hewitt, Melvin L. Hewitt, Jr.; Donna C. Stribling, Solicitor-General, Anna W. Davis, William T. Kemp III, Assistant Solicitors-General, amici curiae.
Notes
[1] While not mentioned by the Court of Appeals, the child was thirteen years old at the time of the alleged incident.
[2] Although the General Assembly purported to point us to decisions of the federal appellate courts until January 1, 2013, its vote to do so occurred during its 2011 Session. It
[3] When Rule 803 (4) was adopted in May 2011, it was identical to the then-existing
version of Federal Rule 803 (4). In December 2011, the federal rule was amended as part of
a “restyling of the Evidence Rules[.]” Fed. R. Evid. 803, Advisory Committee Note. These
changes were “stylistic only.” Id. They were not meant to “change any result in any ruling
on evidence admissibility.” Id.; see also Parker v. State,
[4] Of course, once a Georgia appellate court has decided the issue, all lower courts of the state must follow that decision. See Ga. Const. of 1983, Art. VI, Sec. VI, Par. VI (“The decisions of the Supreme Court shall bind all other courts as precedents.”); Art. VI, Sec. V, Par. III (“The decisions of the Court of Appeals insofar as not in conflict with those of the Supreme Court shall bind all courts except the Supreme Court as precedents.”).
[5] The General Assembly enacted the new Evidence Code to adopt the Federal Rules of Evidence “as interpreted by” the federal appellate courts as of the effective date of the new Code. While still persuasive authority, any subsequent federal appellate case law lacks the same precedential weight as cases before that date. See supra pp. 555-557; Ga. L. 2011, p. 100 § 1.
[6] The Court of Appeals correctly observed that although Advisory Committee Notes
are not binding precedent and cannot change the plain meaning of the law or rules, they are
highly persuasive (unlike ordinary legislative history). See Almanza,
[7] If no such precedent existed, we would then look to any legal authority to the extent we found it persuasive, regardless of court or date.
[8] District courts within the Eleventh Circuit also have applied the Renville test. See
Key v. Tirey,
[9] The test was originally set out in United States v. Iron Shell, 633 F2d 77, 84 (8th Cir. 1980) (“A two-part test flows naturally from this dual rationale: first, is the declarant’s motive consistent with the purpose of the rule; and second, is it reasonable for the physician to rely on the information in diagnosis or treatment.”). The Court in Renville merely updated the test and applied it to the specific context of identity in child sexual abuse cases.
[10] Nothing in the text of Rule 803 (4) or Federal Rule 803 (4) prohibits a parent or family member from conveying the information for diagnosis or treatment of the victim. Thus, the fact that the mother spoke to the doctors in this case is not itself disqualifying. See, e.g., Danaipour, 386 F3d at 297-298. Of course the rules governing the admission of evidence and hearsay generally still apply. See infra n. 13.
[11] Some courts have observed that not all judicial applications of the Renville test have
focused on the key question of the declarant’s motive or state of mind. See Cassidy v. State,
[12] Separate from Rule 803 (4), Rule 820 allows anyone to testify as to a statement of a child declarant under the age of 16 describing “any act of sexual contact or physical abuse performed with or on such child by another or with or on another in the presence of such child” if the proponent provides the adverse party prior notice, unless waived, and the child testifies at the trial. OCGA § 24-8-820. Of course, Rule 820 will be of little use in this case if neither the child nor the mother is available to testify.
[13] Not before us in this case is the double-hearsay issue raised by the apparent fact that the mother’s statements to the doctor were themselves hearsay recounting the daughter’s previous statements to the mother. If the trial court on remand determines that one or both of the doctors’ statements at issue here meet the criteria for admission under Rule 803 (4) as we explain it, that alone will not be sufficient to render admissible the portions of those statements that recount the mother’s hearsay statements. The trial court will then need to consider whether the mother’s statements themselves fit within a hearsay exception.
[14] Another issue the trial court may need to consider on remand is whether the
declarant’s visit to the doctor at the direction of law enforcement was for the purpose of or
reasonably pertinent to medical diagnosis or treatment under Rule 803 (4). See, e.g., Bercier,