by Douglas Ankney

On May 6, 2019, the Supreme Court of Georgia held that the categorical exclusionary rule first announced in Mallory v. State, 409 S.E.2d 839 (Ga. 1991), is no longer the law in Georgia because the rule was abrogated by the “new” evidence code that took effect on January 1, 2013.

On January 26, 2015, Candice Nicole Orr reported to police that her husband, Otto Orr, had repeatedly punched and kicked her in front of their child. Otto was arrested on January 28, 2015, and later charged with family violence battery and cruelty to children in the third degree. At trial, Otto testified that Candice was addicted to drugs and attacked him whenever she became angry. On the date of his alleged offense, Otto testified that he hit Candice in self-defense only after she had struck him over the eye with a glass ashtray. During the prosecutor’s cross-examination, she elicited testimony concerning Orr’s silence in not reporting the ashtray incident to police. During closing argument, the prosecutor again commented on Orr’s pre-arrest silence by telling the jury, “That night the defendant—he wants to now claim self defense. I find that particularly convenient. He never told the story to the police, never once said: ‘Hey, wait, wait, wait, wait. I’m the victim here. She came at me with an ashtray.’ I submit to you that this is something made up because he has an interest in the outcome of this case.” Otto’s counsel moved for a mistrial on grounds that the prosecutor commented on Otto’s failure to tell police his story. The trial court denied the motion. The jury found Otto guilty of both charges, and the court sentenced him as a recidivist to five years on the battery count and 12 months on the cruelty charge to be served concurrently.

Otto filed a motion for a new trial, asserting, among other things, the trial court erred under Mallory by not granting a mistrial based on the State’s improper comments on his pre-arrest silence. The trial court granted his motion. The State appealed, and the Court of Appeals affirmed, holding that until the Supreme Court overrules Mallory, state courts are bound by it. The Supreme Court granted the State’s petition for certiorari. 

The Court first observed that the Mallory opinion concerned a murder case in which the Supreme Court had reversed Mallory’s convictions based on improperly admitted hearsay evidence. But the opinion then went on to address several issues that could arise on retrial. One of those issues was Mallory’s contention that his right to remain silent was violated when the State entered into evidence his failure to come forward to explain his innocence when he knew he was under investigation. The Court concluded that since the U.S. Supreme Court had not erected a constitutional barrier to this sort of evidence, the states were “free to formulate evidentiary rules defining the situation in which silence is viewed as more probative than prejudicial.” The Mallory Court then announced the categorical exclusionary rule: “[I]n criminal cases, a comment upon a defendant’s silence or failure to come forward is far more prejudicial than probative.”

However, in the instant case, the Court observed that the categorical exclusionary rule in Mallory did not have a basis in common law, nor did it rest on constitutional or statutory law. The rule was simply an act of judicial lawmaking. The Court opined that the new Evidence Code created a “new evidence world.” Davis v. State, 787 S.E.2d 221 (Ga. 2016). The new Evidence Code was modeled on the Federal Rules of Evidence, and the courts of Georgia look to the federal courts to interpret them. State v. Jones, 773 S.E.2d 170 (Ga. 2015).

Looking to Eleventh Circuit precedent, the Court explained that Rule 403 of the new Evidence Code (OCGA § 24-4-403) requires a trial court to apply a balancing test to the facts and circumstances of a particular case at hand to determine if the probative value of the evidence outweighs the prejudicial impact of the evidence. Jones. Thus, Rule 403 of the new Evidence Code is incompatible with the categorical exclusion of evidence under Mallory. Consequently, the new Evidence Code abrogated Mallory. 

Accordingly, the Court vacated the judgment of the Court of Appeals and remanded for proceedings consistent with its opinion, understanding that the Court of Appeals may need to remand to the trial court to address other issues raised in Otto’s motion for a new trial. See: State v. Orr, 305 Ga. 729 (2019). 

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