Lundy v. State , 265 Ga. 30 ( 1995 )

Fletcher, Justice,

dissenting.

I respectfully dissent because severance in this case is mandatory under our holding in Dingler v. State, 233 Ga. 462 (211 SE2d 752) (1975).

Additionally, I continue to be troubled by the routine admission of prior act evidence. At the Rule 31.3 hearing, the prosecution has the burden of proving that the evidence is admissible. In order to carry that burden, the prosecution should be required to state the specific purpose for which the evidence is offered and its relevance to a material issue in dispute. To admit the evidence, the court must find that it is logically relevant to a material, disputed issue, and not offered merely for the purpose of proving bad character or criminal propensity. The court should also balance the probative value of the evidence against its prejudicial effect, considering among other things the need for the evidence and the remoteness of the prior act, which in this case was 20 years. If the court ultimately determines that its probative value outweighs its prejudicial effect, the court in its charge to the jury, and limiting instruction if one is given, should state the specific purpose for which the evidence may be considered, rather than reciting a litany of purposes that are not proper for that case.

Charles H. Weston, District Attorney, Michael J. Bowers, Attorney General, for appellee.