NOTICE: This opinion is subject to modification resulting from motions for reconsideration under Supreme Court Rule 27, the Court’s reconsideration, and editorial revisions by the Reporter of Decisions. The version of the opinion published in the Advance Sheets for the Georgia Reports, designated as the “Final Copy,” will replace any prior version on the Court’s website and docket. A bound volume of the Georgia Reports will contain the final and official text of the opinion.
In the Supreme Court of Georgia
Decided: September 17, 2024
S24G0214. GALLEGOS-MUNOZ v. 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
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.
current Evidence Code (the “2013 Evidence Code”) that required a
trial court to admit prior-accusation evidence, following a threshold
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
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
adduce should have been admitted under OCGA § 24-4-403 (“Rule
403”). The Court of Appeals affirmed Gallegos-Munoz’s conviction
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 probablefalsity 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 GallegosMunoz, 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
3
June 2016. In the motion, Gallegos-Munoz asserted that “J. R. has
since apparently recanted her accusation of sexual abuse against”
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 an investigation was 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.”
4
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
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
5
investigator “about a case that she had previously had where there
was an outcry to the Gwinnett County Police Department against
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 case
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 prioraccusation evidence, referencing “the reasons noted by the [c]ourt in
its oral ruling at the conclusion” of the September 2018 hearing. At
6
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
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
7
count of child molestation. The court sentenced Gallegos-Munoz to
serve 19 years in prison followed by one year on probation. GallegosMunoz 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 prioraccusation 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
8
to make specific findings regarding the Rule 403 balancing test after
it determined that there was no reasonable probability that J. R.’s
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]ostVallejo, 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. 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
9
mother’s testimony was not credible.” Id. at 279.
2. Gallegos-Munoz contends that the trial court erred in
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 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 probable10
falsity threshold test; (b) we clarify that, when we affirmed in Burns
II the “evidentiary holding” in Smith, that holding was limited to
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
11
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
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 §§ 24-12
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
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
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 CalApp3d
978, 989 (1979); People v. Hurlburt, 166 CalApp2d 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 (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
Ga. at 121 (2). Along with the constitution-based per se rule of
admissibility that this Court “create[d]” in Smith, we followed the
lead of other courts that had considered the admissibility of prioraccusation 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) (citation
and punctuation omitted). 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
14
Evidence Code.4
(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 Rule 608 (b). 5 See id. Specifically,
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 (341 SE2d 451) (1986)
(“Where an issue is raised, as to whether the probative value of 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.” (citation omitted)).
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:
15
the defendant wanted to present evidence that, in the same oneparagraph 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
(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.
(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
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 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
17
Appeals reversed and remanded for resumption of the paused
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
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), 377 SE2d 158 (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
law, former OCGA § 24-2-3, did not apply to prior-accusation
evidence and did not prohibit such evidence, because prioraccusation evidence does not “concern[ ] the past sexual behavior of
the complaining witness.” Id. at 118-119 (1).
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
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
statute] continues to be the exclusion of evidence concerning the
‘past sexual behavior of the complaining witness.’” Id. at 120-121 (2)
(citation and 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
20
determination “that a reasonable probability of falsity exists.”
Smith, 259 Ga. at 137 (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 124-125 (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).
21
As noted above, our case law appears to have generated
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, 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
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
remained good law after Burns II, those cases are 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
9 See, e.g., Vallejo v. State, 362 Ga. App. 33, 38 (1) (865 SE2d 640) (2021)
(“[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 prioraccusation 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
counterpart,” we looked to decisions of the United States Supreme
Court and held that “there [was] no constitutional impediment to
applying OCGA § 24-4-403” in that case. Id. at 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 (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
11 See Holmes v. South Carolina, 547 U.S. 319, 326 (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 “wellestablished 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.”).
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
statement would inflame passions of the jury or inspire
an emotional decision rather than facilitate a reasoned
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
25
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 are both “fact-bound
analys[es]” that “must turn on the facts of each specific case[.]”
Chrysler Group, LLC v. Walden, 303 Ga. 358, 367 (II) (A), 371 (II)
(B) (812 SE2d 244) (2018) (citation 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 evidence has
26
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 a prior
13 See Secretary, Florida Dept. of Corrections v. Baker, 406 F. 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
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 categoryspecific 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 Orr, 305 Ga. 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
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
law or by other rules, as prescribed pursuant to constitutional or statutory
authority, applicable in the court in which the matter is pending. Evidence
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
court by a preponderance of the evidence standard. See Bradshaw
v. State, 296 Ga. 650, 656 n.4 (3) (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
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
Federal Rules of Evidence.” See Ronald L. Carlson & Michael Scott Carlson,
Carlson on Evidence 40 (9th ed. 2024).
18 See Vallejo, 362 Ga. App.at 38-41 (2); Ray v. State, 356 Ga. App. 266,
269 (841 SE2d 477) (2020).
32
Rule 403. While relevance is a binary concept, as noted above,
“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 442 (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
to establish the same fact, and the need for the evidence in proving
a fact that is reasonably susceptible of dispute. See id.
19 We disapprove the Court of Appeals’s statement in Ray that, “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’” under Rule 403. 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
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.” Baker, 318
Ga. at 442 (2) (a). 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-trial,” where the evidence does not bear
directly on the charges at issue and where the conduct is not
34
conceded by all to have taken place. See Strong v. State, 309 Ga. 295,
317 & n.23 (4) (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 its prejudicial effect.” Orr, 305 Ga. at 737-738
(3) (citation and punctuation omitted). See also Wilson, 312 Ga. at
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 (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
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
evidence.” (citation and punctuation omitted)). The Evidence Code’s
rules of exclusion may apply separate and apart from the clarified
36
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 OGGA
§ 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
character for truthfulness under Rule 608. 22
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.”).
22 See United States v. Farmer, 923 F2d 1557, 1567 (11th Cir. 1991) (“The
witness’s motive to testify falsely is merely an aspect of credibility controlled
37
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 crossexamination under Rule 608 (b), to show “specific 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
incorrectly that the now-displaced probable-falsity standard
adopted in Smith applied in this case, they did not conduct the
by Fed. R. Evid. 608.” (quoting United States v. Sampol, 636 F2d 621, 659 n.24
(D.C. Cir. 1980), punctuation omitted)); 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
analysis required by the 2013 Evidence Code. See Orr, 305 Ga. at
739 (3); see id. 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.
23If 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