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Summary: The STATE v. ALMANZA (S18G0585) — Opinion by Justice Peterson (Oct. 9, 2018)

Factual and Procedural Background

The Court of Appeals recounted that in May 2014 the defendant Almanza’s stepdaughter told her mother that Almanza had twice molested her approximately one year earlier. The mother reported the accusations to police, who arrested Almanza on May 28, 2014 and directed the mother to take the child for a physical exam at Children’s Healthcare of Atlanta the next day. At the pediatric emergency room, Dr. Lynward Barrett recorded statements by the mother relaying that the child had said Almanza had molested her on two occasions; Dr. Barrett testified that he obtained his information from the mother and did not recall the child speaking during the exam. Dr. Charles Richards (the child’s regular pediatrician) likewise testified that the mother—becoming emotional during a June 6, 2014 visit—told him the child had reported being raped by Almanza approximately one year earlier; Dr. Richards also testified the information came from the mother and the child did not speak at that visit.

Almanza was indicted on multiple sexual-offense counts. The State later could not locate the mother or child, and moved in limine to rule on admissibility of the mother’s statements to the doctors. The trial court permitted the doctors to testify about their physical findings and that the mother had stated the child reported sexual abuse, but prohibited testimony identifying Almanza as the alleged abuser. The State appealed, and the Court of Appeals affirmed the trial court’s exclusion of identification testimony. The Georgia Supreme Court granted certiorari and, in this opinion, reverses the Court of Appeals and remands with directions.

Legal Issues Presented

  1. Whether hearsay identifying the alleged sexual abuser of a child victim is admissible under the medical-diagnosis-or-treatment hearsay exception, OCGA § 24-8-803(4) (Georgia Rule 803(4)).
  2. Whether Georgia courts should apply federal appellate precedent in construing Rule 803(4) (and, more broadly, how to reconcile federal precedent and preexisting Georgia precedent under the State’s new Evidence Code).

Arguments of the Parties

The opinion does not contain a detailed account of the parties' legal arguments.

Table of Precedents Cited

Precedent Rule or Principle Cited For Application by the Court
State v. Almanza, 344 Ga. App. 38, 807 S.E.2d 517 (2017) Lower appellate decision holding identification testimony categorically inadmissible under Georgia Rule 803(4). Described as the Court of Appeals’ ruling which the Supreme Court reverses because it relied on pre-new-Code Georgia precedent that was displaced by the new Evidence Code's adoption of the federal rule.
United States v. Renville, 779 F.2d 430 (8th Cir. 1985) Articulated a two-step test for admitting statements under Fed. R. Evid. 803(4): (1) declarant’s motive consistent with treatment; (2) content reasonably relied on by physician. The Court adopts the Renville two-pronged test as the appropriate standard Georgia courts must apply when evaluating identification testimony in child sexual abuse cases under Rule 803(4).
United States v. Iron Shell, 633 F.2d 77 (8th Cir. 1980) Provided the original articulation of the two-part rationale for Rule 803(4) (motive and reasonable physician reliance). Cited as the origin of the two-part approach later applied in Renville and adopted as consistent with Rule 803(4)’s text.
Morgan v. Foretich, 846 F.2d 941 (4th Cir. 1988) Permitted identification testimony in a child sexual abuse context under Fed. R. Evid. 803(4). Listed among federal appellate decisions that have allowed identification testimony in child-abuse cases and relied upon to show circuits recognizing admissibility in appropriate circumstances.
United States v. Kappell, 418 F.3d 550 (6th Cir. 2005) Permitted identification testimony in child sexual abuse context. Used as an example of circuits allowing identity testimony under the federal rule.
United States v. Yazzie, 59 F.3d 807 (9th Cir. 1995) Permitted identification testimony in child sexual abuse context. Listed among appellate decisions supporting admissibility of identification under Fed. R. Evid. 803(4).
Danaipour v. McLarey, 386 F.3d 289 (1st Cir. 2004) Admitted evidence in a civil case and recognized family members may convey information to medical providers relevant to diagnosis or treatment. Cited to support that a parent’s reporting to a medical provider is not inherently disqualifying under Rule 803(4).
United States v. Joe, 8 F.3d 1488 (10th Cir. 1993) Noted identity of the abuser in child sexual abuse cases can be "reasonably pertinent" to medical treatment and diagnosis. Used as an example of circuits taking a literal approach—allowing admissibility where identity is reasonably pertinent.
United States v. Cherry, 938 F.2d 748 (7th Cir. 1991) Expressed concerns regarding admissibility of identification testimony (had it been expressly challenged). Noted as a circuit expressing reservations, demonstrating lack of uniformity among circuits.
United States v. Williams, 578 Fed. Appx. 872 (11th Cir. 2014) Eleventh Circuit authority distinguishing statements of causation (admissible) from attribution of fault (not automatically admissible) in other contexts. Described as Eleventh Circuit precedent that distinguishes causation vs. fault but does not control the child-identification question; Court explains those cases are not dispositive here.
United States v. Belfast, 611 F.3d 783 (11th Cir. 2010) Eleventh Circuit decision cited for distinction between causation and fault in applying Rule 803(4) in other contexts. Referenced to show the Eleventh Circuit’s general approach, while noting it did not decide the specific child-identification issue.
United States v. Darden, 186 Fed. Appx. 887 (11th Cir. 2006) Eleventh Circuit decision dealing with causation versus fault distinctions under Rule 803(4). Cited as an example of Eleventh Circuit rulings that are not directly on point for child-abuser identification.
United States v. Gabe, 237 F.3d 954 (8th Cir. 2001) Explained an adult (and likewise children) may not understand connection between abuser’s identity and medical treatment; therefore motive/state of mind must be shown. Cited in discussing how to assess the declarant’s motive and the need to show the declarant understood the medical significance of truthfulness.
United States v. Sumner, 204 F.3d 1182 (8th Cir. 2000) Stated that a child must understand the medical significance of being truthful for statements to qualify under Rule 803(4). Used to support the requirement that the child’s frame of mind as a patient seeking treatment must be established for admissibility.
United States v. Turning Bear, 357 F.3d 730 (8th Cir. 2004) Noted that a child’s age may make it difficult to establish understanding and thus lack the necessary trustworthiness. Cited as an example where age may undermine admissibility under Rule 803(4).
United States v. Iron Shell, 633 F.2d 77 (8th Cir. 1980) Formulated the two-part test (motive consistent with treatment; physician’s reasonable reliance) underlying later cases like Renville. Identified as the test's origin; the Court traces Renville’s approach to Iron Shell.
United States v. Gari, 572 F.3d 1352 (11th Cir. 2009) Explained hearsay is admissible if it falls within one of the enumerated hearsay exceptions. Quoted to support that multiple hearsay exceptions (e.g., Rule 803(4) and Georgia’s Child Hearsay Statute) operate independently.
United States v. Bercier, 506 F.3d 625 (8th Cir. 2007) Demonstrated that courts should determine whether evidence falls within an exception before finding abuse of discretion in admission. Used to illustrate that admission should be tested against the applicable hearsay exception(s) (e.g., Rule 803(4)).
United States v. Beaulieu, 194 F.3d 918 (8th Cir. 1999) Discussed whether a doctor’s examination conducted at direction of law enforcement is reasonably pertinent to medical treatment. Referenced in a note as an example of cases the trial court may consider when determining if an exam directed by law enforcement qualifies as treatment under Rule 803(4).
United States v. Balfany, 965 F.2d 575 (8th Cir. 1992) Also discussed the impact of law enforcement involvement on the treatment-diagnosis purpose under Rule 803(4). Listed among cases trial courts may consult regarding whether law-enforcement-directed examinations are for medical treatment.
United States v. Barker, 820 F.3d 167 (5th Cir. 2016) Discussed Confrontation Clause concerns in identification testimony in child sexual abuse contexts. Cited as authority considering Confrontation Clause issues that may arise even when statements fall under Rule 803(4).
Michigan v. Bryant, 562 U.S. 344 (2011) Noted that hearsay exceptions typically involve non-testimonial evidence and thus do not always implicate Confrontation Clause concerns. Quoted to explain that Rule 803(4) typically does not raise Confrontation Clause issues, though exceptions may exist.
Ohio v. Clark, 135 S. Ct. 2173 (2015) Provided the "primary purpose" test for whether an out-of-court statement is testimonial for Confrontation Clause purposes. Referenced to warn that, depending on circumstances, statements obtained at direction of government may create Confrontation Clause concerns under the primary-purpose analysis.
Glenn v. State, 302 Ga. 276, 806 S.E.2d 564 (2017) Explained that where Georgia adopted federal rules with nearly identical language, federal appellate case law is to be used to interpret the state rule. Relied upon to support the Court’s rule that materially identical Georgia rules must be interpreted according to federal precedent.
Davis v. State, 299 Ga. 180, 787 S.E.2d 221 (2016) Example of a Georgia rule (OCGA § 24-4-403) mirroring a Federal Rule (Fed. R. Evid. 403) and being interpreted accordingly. Used as prior authority showing the new Evidence Code displaces old Georgia precedent when language mirrors a federal rule.
Olds v. State, 299 Ga. 65, 786 S.E.2d 633 (2016) Confirmed guidance from federal appellate courts is appropriate when Georgia’s rule mirrors the federal rule (Rule 404(b) example). Used to support the interpretive approach adopted for Rule 803(4).
Watson v. State, 303 Ga. 758, 814 S.E.2d 396 (2018) Explained that if a provision retained from the old Evidence Code has no federal counterpart, prior Georgia case law remains authoritative. Quoted to delineate when state precedent (old Code) still controls versus when federal precedent displaces it.
Chrysler Group, LLC v. Walden, 303 Ga. 358, 812 S.E.2d 244 (2018) Illustrated that courts look to Georgia cases under the old Code where there is no federal counterpart. Invoked as an example of the interpretive scheme for the new Evidence Code.
Bradshaw v. State, 296 Ga. 650, 769 S.E.2d 892 (2015) Example where absence of a federal rule meant the new state provision retained the old meaning. Cited to explain when old Georgia precedent remains controlling.
Parker v. State, 296 Ga. 586, 769 S.E.2d 329 (2015) Noted that stylistic restyling of rules does not change their substantive meaning. Used to support that minor wording differences do not necessarily indicate different meaning from federal rules.
White v. Illinois, 502 U.S. 346 (1992) Explained that statements made in procuring medical services carry special guarantees of credibility because declarant knows falsity may cause misdiagnosis or mistreatment. Quoted to support the trustworthiness rationale for Rule 803(4) and the emphasis on declarant motive.
Tome v. United States, 513 U.S. 150 (1995) Referenced regarding the persuasive value of Advisory Committee Notes. Cited in a footnote to explain that Advisory Committee Notes are highly persuasive when interpreting federal rules.
Horenkamp v. Van Winkle & Co., 402 F.3d 1129 (11th Cir. 2005) Stated Advisory Committee Notes are accorded great weight in interpreting federal rules. Used to support reliance on Advisory Committee Note discussing causation vs. fault under Rule 803(4).
State v. Frost, 297 Ga. 296, 773 S.E.2d 700 (2015) Referenced among Georgia cases noting preference for Eleventh Circuit authority where conflicts among federal circuits exist. Cited to support the new Code’s instruction that Eleventh Circuit decisions are authoritative when federal circuits conflict.
Key v. Tirey, 2006 WL 8436612 (N.D. Ala. June 20, 2006) District-court application of the Renville test within the Eleventh Circuit region. Noted in a footnote as an example of district courts applying Renville.
In re Moore, 165 B.R. 495 (M.D. Ala. 1993) Another district-court application of the Renville approach. Listed as an example of lower-court application of Renville within the Eleventh Circuit area.
Cassidy v. State, 74 Md. App. 1, 536 A.2d 666 (Md. Ct. Spec. App. 1988) Observed judicial applications of Renville sometimes insufficiently focused on declarant motive. Cited in a footnote as cautionary authority emphasizing correct application of the Renville test.
Colvard v. Commonwealth, 309 S.W.3d 239 (Ky. 2010) Another authority criticizing some applications of the Renville test for insufficient focus on motive. Used in a footnote to underscore the Court’s instruction that motive must be the central inquiry under Renville.

Court's Reasoning and Analysis

The Court’s analysis proceeds in steps grounded in the interpretive framework of Georgia’s new Evidence Code. First, the Court examined the new Code’s preamble, which states the General Assembly’s intent to adopt the Federal Rules of Evidence "as interpreted" by federal appellate courts (and to give preference to Eleventh Circuit decisions where federal circuits conflict). Based on that preamble and precedent (e.g., Glenn, Davis, Olds), the Court concluded that when a Georgia evidentiary rule is materially identical to a Federal Rule of Evidence, federal appellate case law interpreting the federal rule governs the Georgia rule.

Second, the Court determined that Georgia Rule 803(4) (statements for purposes of medical diagnosis or treatment) is materially identical to Federal Rule of Evidence 803(4) and also mirrors the former Georgia provision. Because the state rule mirrors the federal rule, federal precedent applies and displaced contrary older Georgia precedent.

Third, because the Eleventh Circuit had not specifically ruled on whether identification of an alleged abuser in child sexual abuse cases is admissible under Fed. R. Evid. 803(4), the Court surveyed other circuits. The Court identified a line of federal appellate cases (including Renville and related Eighth Circuit authority) permitting admission of identity in child sexual abuse cases under a careful, two-pronged test. The Renville test requires (1) that the declarant’s motive in making the statement be consistent with promoting treatment or diagnosis and (2) that the content be of the sort reasonably relied upon by a physician in diagnosis or treatment. The Court explained how these prongs track the text of Rule 803(4): the "motive" requirement aligns with the trustworthiness justification, and the "reasonably pertinent" language limits admissible content.

The Court concluded that Renville’s two-prong test is a rigorous gatekeeping standard that appropriately balances the interests in reliable medical statements and trial fairness, and therefore Georgia courts must apply Renville when addressing identification testimony under Rule 803(4). The Court rejected the Court of Appeals’ categorical bar on admitting identification testimony under Rule 803(4), explaining that federal precedent supports a case-by-case admissibility analysis rather than categorical exclusion.

Finally, the Court addressed statutory interact ions, noting that the existence of Georgia’s Child Hearsay Statute (OCGA § 24-8-820) does not limit Rule 803(4); both provisions provide independent avenues for admissibility. The Court remanded with instructions that the trial court re-evaluate admissibility in light of the Renville standard. The Court also noted unresolved issues the trial court may need to address on remand, including potential double-hearsay problems (mother->doctor relaying child’s statements) and whether the exam—procured at law enforcement’s direction—was nonetheless for the purpose of treatment or diagnosis, and possible Confrontation Clause implications in some circumstances.

Holding and Implications

Holding: The Georgia Supreme Court reversed the Court of Appeals’ categorical exclusion of identification testimony under Georgia Rule 803(4) and remanded with directions to vacate the trial court’s exclusion order and reconsider admissibility consistent with this opinion.

Implications: As applied in this case, the decision (1) holds that Georgia Rule 803(4) is to be interpreted according to federal appellate precedent because it is materially identical to the federal rule; (2) adopts the Renville two-pronged test (declarant’s motive consistent with treatment; content reasonably relied on by a physician) as the standard Georgia courts must use when evaluating whether hearsay identifying an alleged child sexual abuser is admissible under Rule 803(4); and (3) rejects a categorical bar to identity testimony under Rule 803(4), requiring case-specific analysis under Renville. The immediate practical effect is reversal of the Court of Appeals and remand for further proceedings consistent with the opinion. The Court also left to the trial court on remand related evidentiary questions (e.g., double hearsay, whether the exam was sufficiently for treatment when directed by law enforcement, and potential Confrontation Clause issues).

Disposition: Judgment reversed and case remanded with directions. All Justices concurred except Bethel, J., who was disqualified.

THE STATE v. ALMANZA.

Peterson, Justice.

Amelia Greeson Pray, A.D.A., D. Victor Reynolds, District Attorney, Michael Scott Carlson, Deputy Chief A.D.A., John Richard Edwards, A.D.A., John Stuart Melvin, A.D.A., Charles Prescott Boring, Deputy Chief A.D.A., Lindsay Beth Gardner, A.D.A., Cobb County District Attorney's Office, Marietta, Attorneys for the Appellant.

Ashleigh Bartkus Merchant, John B. Merchant, III, The Merchant Law Firm, P.C., Marietta, Attorneys for the Appellee.

Andrew Howard Agatston, Andrew H. Agatston, P.C., Marietta, Melvin L. Hewitt, Jr., Isenberg & Hewitt, PC, Atlanta, Donna Coleman Stribling, Solicitor-General, Anna Watkins Davis, Assistant Solicitor-General, William Thomas Kemp, III, Assistant Solicitor-General, DeKalb County Solicitor General's Office, Decatur, Attorneys for the Amicus Appellant.

Peterson, Justice.

We granted certiorari to decide whether hearsay identifying the alleged sexual abuser of a child victim is admissible under the hearsay exception for statements made for purposes of medical diagnosis or treatment found in OCGA § 24-8-803 (4) ("Rule 803 (4)"). Under the new Evidence Code, we know that Georgia evidence rules that track the federal rules are to be interpreted according to federal case law, while rules that were instead carried over from the old Evidence Code are to be interpreted according to our case law interpreting the old Code. But Georgia Rule 803 (4) is materially identical to both an existing federal rule and a provision of the old Georgia Evidence Code. Federal case law construing Federal Rule of Evidence 803 (4) has held that the identity of an alleged child sexual abuser may, in certain circumstances, be admissible. Georgia case law construing the old state rule held that such evidence was not admissible. Because the fundamental rule of the new Evidence Code is that federal appellate case law applies when a Georgia rule is materially identical to a federal rule and has not yet been interpreted by a Georgia appellate court, we conclude that the new Evidence Code displaced our old Georgia precedent and so federal case law applies here. Accordingly, Rule 803 (4) permits the admission of identity in child sexual abuse cases when reasonably pertinent to medical diagnosis or treatment. We reverse the Court of Appeals’s decision to the contrary and remand with instructions to vacate the trial court’s order and remand for further proceedings consistent with this opinion.

1. The relevant facts as recounted by the Court of Appeals show that in May 2014 Almanza’s stepdaughter told her mother that Almanza had twice molested her approximately one year earlier. The mother reported these accusations to the police, who arrested Almanza on May 28, 2014. The police instructed the mother to take the child for a physical exam at Children’s Healthcare of Atlanta, which the mother did on May 29, 2014.

While not mentioned by the Court of Appeals, the child was thirteen years old at the time of the alleged incident.

At the pediatric emergency room, Dr. Lynward Barrett examined the child. Dr. Barrett testified that the mother reported that her daughter had told her that Almanza had molested her on two occasions by touching the child’s vagina and by placing his penis "inside of her." The mother also told Dr. Barrett that the child said these acts had taken place approximately one year earlier. Dr. Barrett performed a physical examination of the child, consulted with a social worker to ensure law enforcement was involved and that the abuser no longer had access to the child, and referred the child for psychological counseling. Dr. Barrett testified that he obtained all of his information from the mother, only questioned the mother, and did not recall the child saying anything before, during, or after the exam.

Dr. Charles Richards, the child’s regular pediatrician, testified that he saw the child and her mother at his office on June 6, 2014 for treatment of the child’s viral symptoms. Dr. Richards testified that, as he was finishing the exam of the child, the mother became emotional and said the child had recently reported that approximately one year earlier Almanza had raped her on two different occasions. Dr. Richards similarly testified that he received all of the information regarding the allegations of sexual molestation from the mother and that the child did not say anything during this visit.After indicting Almanza on charges of child molestation, incest, aggravated sexual battery, statutory rape, and aggravated child molestation, the State became unable to locate either the mother or the child. The State thereafter filed a motion in limine to obtain a ruling on the admissibility of the mother’s statements to both doctors. Following a hearing on the motion, the trial court ruled that the doctors would be allowed to testify at trial to any findings they made during the physical examination of the child and to the mother’s statements regarding the fact the child had reported being sexually abused. But the trial court also ruled that neither physician could testify as to "[a]ny identification of [Almanza] as the abuser." The State appealed that ruling, and the Court of Appeals affirmed. State v. Almanza, 344 Ga. App. 38, 52, 807 S.E.2d 517 (2017).

The Court of Appeals held that the trial court did not abuse its discretion in refusing to admit the mother’s statements of identification because such statements of identity are categorically inadmissible under Rule 803 (4). Almanza, 344 Ga. App. at 52, 807 S.E.2d 517. In doing so, the Court of Appeals concluded that Georgia case law interpreting the old Evidence Code’s medical diagnosis and treatment hearsay exception remained valid under the new Evidence Code. Id. at 41-45, 807 S.E.2d 517. The Court of Appeals went on to rely alternatively on Eleventh Circuit decisions regarding Federal Rule 803 (4), distinguishing statements of causation (which are admissible) from attribution of fault (which are not). Id. at 45-46, 807 S.E.2d 517. The Court of Appeals also criticized the reasoning or questioned the relevance of precedent addressing the admission of identity in child sexual abuse cases in the First, Fourth, Eighth, Ninth, and Tenth Circuits and specifically rejected the admissibility test set forth in United States v. Renville, 779 F.2d 430 (8th Cir.1985). Almanza, 344 Ga. App. at 46-52, 807 S.E.2d 517.

The Georgia precedent upon which the Court of Appeals relied did not survive the adoption of the new Evidence Code. The Eleventh Circuit decisions that the Court of Appeals alternatively relied upon did not decide the question before us regarding the application of Rule 803 (4) in the context of child sexual abuse; the federal precedent the Court of Appeals rejected did decide that question. We apply that federal precedent and conclude that the Court of Appeals’s categorical bar on the admissibility of identification under Rule 803 (4) in child sexual abuse cases was error.

2. Georgia’s new Evidence Code largely mirrors the Federal Rules of Evidence. This is by design. The preamble to the act adopting the new Evidence Code is explicit:

It is the intent of the General Assembly in enacting this Act to adopt the Federal Rules of Evidence, as interpreted by the Supreme Court of the United States and the United States circuit courts of appeal[s] as of January 1, 2013, to the extent that such interpretation is consistent with the Constitution of Georgia. Where conflicts were found to exist among the decisions of the various circuit courts of appeal[s] interpreting the federal rules of evidence, the General Assembly considered the decisions of the 11th Circuit Court of Appeals. It is the intent of the General Assembly to revise, modernize, and reenact the general laws of this state relating to evidence

while adopting, in large measure, the Federal Rules of Evidence. The General Assembly is cognizant that there are many issues regarding evidence that are not covered by the Federal Rules of Evidence and in those situations the former provisions of Title 24 have been retained. Unless displaced by the particular provisions of this Act, the General Assembly intends that the substantive law of evidence in Georgia as it existed on December 31, 2012, be retained.

Ga. L. 2011, p. 99, 100 § 1. This preamble, though not codified, is a clear instruction manual for courts trying to decipher what the new Evidence Code purports to do and what precedent to apply. Like any instructions, it is best to read them, and they must be read in order. First, the General Assembly stated that the primary aim of the new Code was to "adopt the Federal Rules of Evidence" as "interpreted by" federal appellate courts "as of January 1, 2013[.]" Second, if a conflict exists among the federal appellate courts, we look to the "decisions of the 11th Circuit." Third, courts are to look to the "substantive law of evidence in Georgia as it existed on December 31, 2012," only when not displaced by the new code. Id. See also Glenn v. State, 302 Ga. 276, 280 (II) n. 4, 806 S.E.2d 564 (2017) ("[T]o the extent the General Assembly adopted the federal rules, it did so with an understanding of how those rules are applied in federal courts, not by prior Georgia courts." (internal citation and punctuation omitted) ).

Although the General Assembly purported to point us to decisions of the federal appellate courts until January 1, 2013, its vote to do so occurred during its 2011 Session. It is far from clear that the General Assembly could essentially incorporate by reference into the Code judicial decisions that had not yet occurred; such an act might well run afoul of the non-delegation doctrine. See Ga. Const. of 1983, Art. III, Sec. I, Par. I ("The legislative power of the state shall be vested in a General Assembly which shall consist of a Senate and a House of Representatives."). But whether the key date for these purposes is 2013 or 2011 need not be decided today, as none of the federal appellate decisions on which we rely was decided between those dates.

Thus, the rule is simple: if a rule in the new Evidence Code is materially identical to a Federal Rule of Evidence, we look to federal case law. Glenn, 302 Ga. at 280 (II) n. 4, 806 S.E.2d 564 ("By using language nearly identical to Federal Rule of Evidence 701 (a)..., the enactment of OCGA § 24-7-701 (a) was a statutory modification to the admissibility of such evidence and displaced prior precedent on the matter ." (emphasis added) ); Davis v. State, 299 Ga. 180, 189 (2) (b), 787 S.E.2d 221 (2016) (" OCGA § 24-4-403 mirrors Federal Rule of Evidence 403 and is interpreted accordingly."); Olds v. State, 299 Ga. 65, 69 (2), 786 S.E.2d 633 (2016) ("[W]hen we have considered the meaning of [Georgia’s] Rule 404 (b), we consistently have looked for guidance in the decisions of the federal appellate courts construing and applying Federal Rule of Evidence 404 (b).").

If there is no materially identical Federal Rule of Evidence and a provision of the old Evidence Code was retained in the new Code, our case law interpreting that former provision applies. Watson v. State, 303 Ga. 758, 760 (2) (b) n.3, 814 S.E.2d 396 (2018) (explaining that because OCGA § 24-7-707"does not have any equivalent provision in the federal rules, ... it is appropriate to rely on decisions under the old Code"); Chrysler Group, LLC v. Walden, 303 Ga. 358, 363 (II), 812 S.E.2d 244 (2018) (looking to "Georgia cases decided under the former version of [the] rule ... for guidance" only after explicitly noting the rule had "no federal counterpart."); Bradshaw v. State, 296 Ga. 650, 654 (2), 769 S.E.2d 892 (2015) ("In the absence of a provision in the Federal Rules of Evidence governing accomplice testimony ... [and] in light of the nearly identical language of accomplice provisions in the old and new Evidence Code, we give the new accomplice provision the same meaning as the old one." (emphasis added) ).

This case presents an unusual situation: Rule 803 (4) is materially identical both to Federal Rule 803 (4) and to the medical treatment and diagnosis hearsay exception under the old Evidence Code (former OCGA § 24-3-4 ). Rule 803 (4) reads:

The following shall not be excluded by the hearsay rule, even though the declarant is available as a witness:

...

Statements for purposes of medical diagnosis or treatment. Statements made for purposes of medical diagnosis or treatment and describing medical history, or past or present symptoms, pain, or sensations, or the inception or general character of the cause or external source thereof insofar as reasonably pertinent to diagnosis or treatment[.]



OCGA § 24-8-803 (4) ; see also former OCGA § 24-3-4 (same). Federal Rule 803 (4) was the same:

The following are not excluded by the hearsay rule, even though the declarant is available as a witness:

...

Statements for purposes of medical diagnosis or treatment. Statements made for purposes of medical diagnosis or treatment and describing medical history, or past or present symptoms, pain, or sensations,



or the inception or general character of the cause or external source thereof insofar as reasonably pertinent to diagnosis or treatment.

Fed. R. Evid. 803 (4) (2011). These provisions are identical; the only difference is the Georgia provision says covered statements "shall not be excluded," while the federal provision says they "are not excluded."

When Rule 803 (4) was adopted in May 2011, it was identical to the then-existing version of Federal Rule 803 (4). In December 2011, the federal rule was amended as part of a "restyling of the Evidence Rules[.]" Fed. R. Evid. 803, Advisory Committee Note. These changes were "stylistic only." Id. They were not meant to "change any result in any ruling on evidence admissibility." Id.; see also Parker v. State, 296 Ga. 586, 593 (3) (a) n. 10, 769 S.E.2d 329 (2015) ("Thus, not every discrepancy between the wording of the new Evidence Code and the version of the Federal Rules of Evidence that was in effect on January 1, 2013, signifies a different meaning.").

Although this is the first time we have considered a provision of the new Evidence Code that is materially identical to both the old code and the federal rules, the principles outlined above still apply. The General Assembly was crystal clear in conveying its intent that Georgia’s new Evidence Code was primarily enacted to adopt the Federal Rules of Evidence. And to the extent the General Assembly adopted the Federal Rules of Evidence, it did so "as interpreted" by the federal appellate courts as of the effective date of the new Code. Ga. L. 2011, at 100 § 1. As such, they not only plainly adopted the language of the Federal Rules of Evidence, but they also did so in the light of federal precedent addressing each issue of evidence covered by those same rules. Id. Thus, under the new Evidence Code, when the provision is materially identical to a federal rule, it also reflects the federal rule’s meaning, displacing any other.

In this case, Rule 803 (4) materially mirrors Federal Rule 803 (4). Having found a Federal Rule of Evidence using materially identical language that addresses the evidentiary issue covered by Rule 803 (4), the question of whether to apply state or federal precedent ends: we look to federal appellate precedent until a Georgia appellate court decides the issue under the new Code. The fact that the words of the medical treatment and diagnosis hearsay exception remain substantively unchanged between the old and new Evidence Code is inconsequential; because the state rule mirrors Federal Rule 803 (4), it is now read as interpreted by the federal appellate courts as of the effective date of the new Code.

Of course, once a Georgia appellate court has decided the issue, all lower courts of the state must follow that decision. See Ga. Const. of 1983, Art. VI, Sec. VI, Par. VI ("The decisions of the Supreme Court shall bind all other courts as precedents."); Art. VI, Sec. V, Par. III ("The decisions of the Court of Appeals insofar as not in conflict with those of the Supreme Court shall bind all courts except the Supreme Court as precedents.").

3. Having decided that we look to federal precedent in construing Rule 803 (4), the next question is what federal precedent controls. Again, the preamble is clear: decisions of "the Supreme Court of the United States and the United States circuit courts of appeal" as of the effective date of the new Code. Ga. L. 2011, at 100 § 1. In the case of conflicts "among the decisions of the various circuit courts of appeal[s] in interpreting the federal rules of evidence," the precedent of the Eleventh Circuit prevails. Id. See Chrysler, 303 Ga. at 361 (II), 812 S.E.2d 244 ; Glenn, 302 Ga. at 280 (II), 806 S.E.2d 564 ; Davis, 299 Ga. at 185 (2) (a) (2), 787 S.E.2d 221 ; Olds, 299 Ga. at 69 (2), 786 S.E.2d 633 ; State v. Frost, 297 Ga. 296, 299, 773 S.E.2d 700 (2015).

Neither the United States Supreme Court nor the Eleventh Circuit has specifically addressed whether statements of identification are admissible testimony in child sexual abuse cases under Federal Rule 803 (4). The Court of Appeals correctly noted that, in applying that rule in other contexts, the Eleventh Circuit generally has distinguished between statements of causation, which are admissible, and statements of fault, which are not. Almanza, 344 Ga. App. at 45-46, 807 S.E.2d 517 (citing United States v. Williams, 578 Fed. Appx. 872, 876-77 (11th Cir.2014) ; United States v. Belfast, 611 F.3d 783, 818-819 (11th Cir.2010) ; United States v. Darden, 186 Fed. Appx. 887, 889-890 (11th Cir.2006) ). Those cases are not controlling here; they neither held that identification statements were always inadmissible nor dealt with child sexual abuse. Instead, in these cases the Eleventh Circuit either affirmed the admission of statements of causation or found the admission of fault harmless without a holding regarding error. Further, those cases rely on the Advisory Committee Note to Federal Rule 803 (4) to make the distinction between causation and fault, but by the terms of that note the distinction does not resolve the question of the admissibility of identification of perpetrators of child sexual abuse.

The General Assembly enacted the new Evidence Code to adopt the Federal Rules of Evidence "as interpreted by" the federal appellate courts as of the effective date of the new Code. While still persuasive authority, any subsequent federal appellate case law lacks the same precedential weight as cases before that date. See supra pp. 5-8; Ga. L. 2011, at 100 § 1.

The Advisory Committee Note on Federal Rule 803 (4) explains that the justification for the medical diagnosis and treatment hearsay exception is the underlying "guarantee of trustworthiness" of statements "made for purposes of diagnosis or treatment." Fed. R. Evid. 803 (4), Advisory Committee Note. This guarantee "also extends to statements as to causation, reasonably pertinent to the same purposes[.]" Id. In contrast, the note explains that "[s]tatements as to fault would not ordinarily qualify under this latter language[,]" not being reasonably pertinent to medical diagnosis or treatment. Id. (emphasis added). Ordinarily, identity is relevant only to establish fault and is entirely unrelated to medical diagnosis or treatment. Id. ("Thus a patient’s statement that he was struck by an automobile would qualify but not his statement that the car was driven through a red light."). Federal circuits, however, have noted that child sexual abuse cases do not necessarily fall within this general rule. See, e.g., Renville, 779 F.2d at 436 ("[A] statement by a child abuse victim that the abuser is a member of the victim’s immediate household presents a sufficiently different case from that envisaged by the drafters of rule 803 (4) that it should not fall under the general rule."); compare Darden, 186 Fed. Appx. at 889-890 (distinguishing between statement that defendant was "beaten" and statement that he was beaten "by the cops"). In the case of child sexual abuse, the federal courts have determined that the identification of the alleged abuser may be "reasonably pertinent" to the medical diagnosis and treatment of the child. "[C]hild abuse involves more than physical injury; the physician must be attentive to treating the emotional and psychological injury which accompany this crime. The exact nature and extent of the psychological problems which ensue from child abuse often depend on the identity of the abuser." Renville, 779 F.2d at 434-438 (internal citation omitted). Further, the identity of the abuser may be critical to prevent reoccurrence of the injuries, both physical and emotional, for which the child is being presently treated. Id. at 437. Unlike in a car accident, identity of the alleged abuser may be an essential part of preventative medicine.

The Court of Appeals correctly observed that although Advisory Committee Notes are not binding precedent and cannot change the plain meaning of the law or rules, they are highly persuasive (unlike ordinary legislative history). See Almanza, 344 Ga. App. at 40 n.4, 807 S.E.2d 517 (citing Tome v. United States, 513 U.S. 150, 167, 115 S.Ct. 696, 130 L.Ed.2d 574 (1995) (Scalia, J., concurring in part and concurring in the judgment) (explaining that Advisory Committee Notes are "assuredly persuasive scholarly commentaries—ordinarily the most persuasive—concerning the meaning of the [r]ules" (emphasis original) ) ); Horenkamp v. Van Winkle & Co., 402 F.3d 1129, 1132 (11th Cir.2005) (explaining that Advisory Committee Notes "are nearly universally accorded great weight in interpreting federal rules" (citations omitted) ).

The Eleventh Circuit has not directly addressed the admissibility of identification testimony in child sexual abuse cases under Federal Rule 803 (4), and its precedent distinguishing between causation and fault in other contexts is of little help in deciding the specific evidentiary issue presented here. Accordingly, we must look to federal appellate court precedent beyond the Eleventh Circuit to evaluate the scope of Federal Rule 803 (4).

If no such precedent existed, we would then look to any legal authority to the extent we found it persuasive, regardless of court or date.

No circuit has held that testimony regarding the identification of an alleged child abuser is categorically inadmissible under Federal Rule 803 (4). Some appellate courts have allowed identification testimony in child sexual abuses cases under Federal Rule 803 (4). See Morgan v. Foretich, 846 F.2d 941, 948-950 (4th Cir.1988) ; United States v. Kappell, 418 F.3d 550, 556-557 (6th Cir.2005) ; Renville, 779 F.2d at 435-439 ; United States v. Yazzie, 59 F.3d 807, 812-813 (9th Cir.1995) ; cf. Danaipour v. McLarey, 386 F.3d 289, 297-298 (1st Cir.2004) (admitting evidence in a civil case); United States v. Joe, 8 F.3d 1488, 1494 (10th Cir.1993) (in a domestic sexual assault case, the court noted that identity of the abuser in child sexual abuse cases is "reasonably pertinent" to medical treatment and diagnosis, citing Renville (internal quotations omitted) ); but see United States v. Cherry, 938 F.2d 748, 756-757 n.14 (7th Cir.1991) (expressing concerns regarding admissibility of identification testimony had it been challenged expressly).

Some circuits have elected to provide no more guidance than the statutory language itself. See, e.g., Joe, 8 F.3d at 1494, 1494 n.5. However, the Fourth and Eighth Circuits have applied the test as articulated by the Eighth Circuit in Renville. See Renville, 779 F.2d at 435-439 ; Morgan, 846 F.2d at 949.

District courts within the Eleventh Circuit also have applied the Renville test. See Key v. Tirey, 2006 WL 8436612, *8-*9 (N.D. Ala. June 20, 2006) ; In re Moore, 165 B.R. 495, 498-500 (M.D. Ala. 1993).

The Renville test is a straightforward but rigorous two-step test for the admissibility of hearsay statements under Federal Rule 803 (4) generally. Renville, 779 F.2d at 436. First, "the declarant’s motive in making the statement must be consistent with the purpose of promoting treatment[.]" Id. Second, "the content of the statement must be such as is reasonably relied on by a physician in treatment or diagnosis." Id. These two prongs ensure that the hearsay statement has a sufficient guarantee of trustworthiness while excluding statements beyond the scope of the rule.

The test was originally set out in United States v. Iron Shell, 633 F.2d 77, 84 (8th Cir.1980) ("A two-part test flows naturally from this dual rationale: first, is the declarant’s motive consistent with the purpose of the rule; and second, is it reasonable for the physician to rely on the information in diagnosis or treatment."). The Court in Renville merely updated the test and applied it to the specific context of identity in child sexual abuse cases.

This is consistent with the text of the rule. The first part of Rule 803 (4) permits statements "made for purposes of medical diagnosis or treatment and describing ... the inception or general character of the cause or external source thereof[.]" OCGA § 24-8-803 (4). This language underscores that statements made to a provider for the purpose of diagnosis or treatment may be admissible because the self-interested motivation of the declarant in wanting effective diagnosis or treatment (for themselves or others about whose health they care) makes it more likely that the statements made for that purpose are true. See White v. Illinois, 502 U.S. 346, 356, 112 S.Ct. 736, 116 L.Ed.2d 848 (1992) ("[A] statement made in the course of procuring medical services, where the declarant knows that a false statement may cause misdiagnosis or mistreatment , carries special guarantees of credibility[.]" (emphasis added) ). This emphasis on motive is captured in the first prong of the Renville test. See Renville, 779 F.2d at 436. The second part of Rule 803 (4) requires these statements to be "reasonably pertinent to diagnosis or treatment." OCGA § 24-8-803 (4). This language limits the scope of what is admissible under the rule. Only those statements actually reasonably pertinent to the provider’s diagnosis and treatment of the patient are admissible, not just anything uttered during a medical exam (even if said with a subjective belief that the statements would be used for diagnosis or treatment). This cabins an exception that could otherwise become a pathway for introducing all sorts of problematic hearsay. This limit is likewise captured by the second prong of the Renville test. See Renville, 779 F.2d at 436.

Nothing in the text of Rule 803 (4) or Federal Rule 803 (4) prohibits a parent or family member from conveying the information for diagnosis or treatment of the victim. Thus, the fact that the mother spoke to the doctors in this case is not itself disqualifying. See, e.g., Danaipour, 386 F.3d at 297-298. Of course the rules governing the admission of evidence and hearsay generally still apply. See infra n. 13.

Given this basis for finding these statements reliable, assessing the validity of the declarant’s "motive" is critical under the Renville test. In seeking medical treatment and diagnosis for sexual abuse, the medical need for truthfulness about the identity of the alleged abuser may not be known to the patient. See United States v. Gabe, 237 F.3d 954, 958 (8th Cir.2001) ("[N]ot even an adult necessarily understands the connection between a sex abuser’s identity and her medical treatment."). Thus, to ensure the necessary guarantee of trustworthiness generated by the self-interest of the declarant seeking medical diagnosis and treatment, "the proponent must establish that the declarant’s frame of mind when making the hearsay declaration was that of a patient seeking medical treatment." Id. at 958 (internal quotations omitted).Where the child is the declarant, it "must be shown that the child understood the medical significance of being truthful, i.e., the role of the medical health professional in trying to help or heal her, which triggers the motivation for being truthful." United States v. Sumner, 204 F.3d 1182, 1185 (8th Cir.2000). One obvious way to do this is for the physician to make "clear to the victim that the identity of the abuser is important to diagnosis or treatment and the victim manifests such an understanding." See Renville, 779 F.2d at 438. But it may also be the case that a child’s age may make it "exceedingly difficult to establish" that the child understood the importance of telling the truth to receive proper treatment for their injuries; in such cases, the testimony may lack the necessary guarantee of trustworthiness for admissibility under the rule. United States v. Turning Bear, 357 F.3d 730, 739 (8th Cir.2004).

As such, the Renville test acts as an effective gatekeeper for the admissibility of statements under the medical diagnosis and treatment hearsay exception in Federal Rule 803 (4). It is a rigorous standard for the admission of identity statements in child sexual abuse cases that simultaneously takes account of their important role in the medical treatment of child sexual abuse victims and the need of trial courts to ensure the reliability of admitted testimony. It is also a test that is consistent with the text of the rule. That test is the standard Georgia courts must apply.

Some courts have observed that not all judicial applications of the Renville test have focused on the key question of the declarant’s motive or state of mind. See Cassidy v. State, 74 Md.App. 1, 536 A.2d 666, 684-690 (Md. Ct. Spec. App. 1988) ; Colvard v. Commonwealth, 309 S.W.3d 239, 245-246 (Ky. 2010) ; see also Almanza, 344 Ga. App. at 51-52, 807 S.E.2d 517. We agree that a failure to focus on the essential element of motive, enshrined in the first part of the Renville test, is a mistake. The second prong of the Renville test limits the scope of relevant statements under the rule, but it does not and should not shift the focus away from the essential question of motive. For evidence to be admissible under Rule 803 (4), it must meet both prongs of the Renville test.

4. Having determined that identification testimony in child sexual abuse cases may be admissible, providing that it complies with the test set forth in Renville, Almanza’s statutory claims are unavailing.

The Court of Appeals found that the continued existence of the Child Hearsay Statute ( OCGA § 24-8-820 ) in the new Evidence Code affects the meaning of Rule 803 (4). See Almanza, 344 Ga. App. at 48-49, 807 S.E.2d 517. That is incorrect. The fact that both provisions may allow the admissibility of an abuser’s identity in child sexual abuse cases in a specific context—like medical treatment and diagnosis—does not require one to be read to limit the other. See, e.g., United States v. Gari, 572 F.3d 1352, 1361 n.7 (11th Cir.2009) ("Hearsay is admissible if it falls within one of the hearsay exceptions enumerated in Federal Rules of Evidence 803, 804, and 807." (emphasis added) ); United States v. Bercier, 506 F.3d 625, 632 (8th Cir.2007) (finding abuse of discretion in the admission of evidence only after determining that the evidence "did not fall within another hearsay exception"). In short, both Rule 803 (4) and Rule 820 stand on their own terms, providing separate avenues for admissibility of identity testimony. As such, the Court of Appeals’s holding that identification testimony in child sexual abuse cases was categorically barred under Rule 803 (4) was error. The trial court must consider admissibility of such evidence under Rule 803 (4) in the light of the Renville test. Accordingly, we reverse the Court of Appeals’s decision and remand with instructions to vacate the trial court’s order and remand for further proceedings consistent with this opinion.

Separate from Rule 803 (4), Rule 820 allows anyone to testify as to a statement of a child declarant under the age of 16 describing "any act of sexual contact or physical abuse performed with or on such child by another or with or on another in the presence of such child" if the proponent provides the adverse party prior notice, unless waived, and the child testifies at the trial. OCGA § 24-8-820. Of course, Rule 820 will be of little use in this case if neither the child nor the mother is available to testify.

Not before us in this case is the double-hearsay issue raised by the apparent fact that the mother’s statements to the doctor were themselves hearsay recounting the daughter’s previous statements to the mother. If the trial court on remand determines that one or both of the doctors’ statements at issue here meet the criteria for admission under Rule 803 (4) as we explain it, that alone will not be sufficient to render admissible the portions of those statements that recount the mother’s hearsay statements. The trial court will then need to consider whether the mother’s statements themselves fit within a hearsay exception.

Another issue the trial court may need to consider on remand is whether the declarant’s visit to the doctor at the direction of law enforcement was for the purpose of or reasonably pertinent to medical diagnosis or treatment under Rule 803 (4). See, e.g., United States v. Bercier, 506 F.3d 625, 632 (8th Cir.2007) ; Gabe, 237 F.3d at 957-958 ; United States v. Beaulieu, 194 F.3d 918, 921 (8th Cir.1999) ; United States v. Balfany, 965 F.2d 575, 578, 580 (8th Cir.1992). And although Rule 803 (4) typically involves non-testimonial evidence and, thus, does not implicate Confrontation Clause concerns, see Michigan v. Bryant, 562 U.S. 344, 362 n.9, 131 S.Ct. 1143, 179 L.Ed.2d 93 (2011) (noting that hearsay exceptions, including Rule 803 (4)"rest on the belief that certain statements are, by their nature made for a purpose other than use in a prosecution"), there may be specific instances when the government’s involvement in procuring the statement raises serious Confrontation Clause concerns. See Ohio v. Clark, ––– U.S. ––––, 135 S.Ct. 2173, 2180 n. 14, 192 L.Ed.2d 306 (2015) (providing that in determining whether an out-of-court statement is testimonial for Confrontation Clause purposes, "the question is whether, in light of all the circumstances, viewed objectively, the primary purpose of the conversation was to create an out-of-court substitute for trial testimony"); United States v. Barker, 820 F.3d 167, 171-172 (5th Cir.2016) (discussing the Confrontation Clause and identification testimony in the context of child sexual abuse).

Judgment reversed and case remanded with direction.

All the Justices concur, except Bethel, J., disqualified.

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State v. Almanza
(Oct 9, 2018)