concurring specially.
As the author of Maxwell v. State,51 acknowledge the problems resulting from it and I concur in overruling its holding that required a pre-trial hearing on evidence of prior difficulties between the victim and the accused. The rationale for providing notice to an accused of uncharged misconduct or “similar transactions” is rooted in due process: it is fundamentally unfair to obtain a conviction based on prior crimes wholly unrelated to the crime for which the defendant stands trial. This rationale, however, does not carry the same weight when the prior acts are between the accused and victim. The nature of the defendant’s relationship with the victim will generally be relevant. A defendant should not be surprised when that relationship is subject to proof at trial, just as a defendant should not be surprised by evidence linking him to the weapon used or the scene of the crime. In these circumstances, fundamental fairness does not require advance notice to the defendant.
This does not necessarily mean, however, that the evidence is always admissible. Even if the evidence of prior difficulties is relevant to prove a material issue in dispute, the court must additionally weigh its probative value against its prejudicial effect before determining admissibility, as the trial court must do in determining the admissibility of prior act or “similar transactions” evidence. In balancing the probative value against the prejudicial effect, the trial *511court may consider factors such as remoteness, the availability of other evidence to prove the disputed issue, strength of the proof of the prior act evidence, and possibility of juror confusion.
Decided June 1, 1998. Stanley C. House, for appellant. Daniel J. Craig, District Attorney, Charles R. Sheppard, Assistant District Attorney, Thurbert E. Baker, Attorney General, Paula K. Smith, Senior Assistant Attorney General, H. Maddox Kilgore, Assistant Attorney General, for appellee.I am authorized to state that Justice Sears joins in this special concurrence.
262 Ga. 73 (414 SE2d 470) (1992).