CourtListener 10680266

Testo completo

NOTICE: This opinion is subject to modification resulting from motions for reconsideration under Supreme Court
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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 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

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 prior-

accusation 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. Gallegos-

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

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]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. 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 probable-

10
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 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) (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 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

(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 prior-

accusation 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).

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 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
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 “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.”).

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 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 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)

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 cross-

examination 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.

319 Ga. 803
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S24G0214. GALLEGOS-MUNOZ v. THE STATE.