Criminal Procedure Distinctions

Question 1

Under Georgia law, when may a law enforcement officer can make a warrantless arrest?

Answer 1

A law enforcement officer can make a warrantless arrest if:

• The offense is committed in the officer’s presence or within the officer’s immediate knowledge
• The offender is attempting to escape
• The officer has probable cause to believe that an act of family violence has been committed
• The officer has probable cause to believe the offender has violated a crminal family violence order; additionally, the officer cannot have any prior or current familial relationship with the alleged victim or the offender
• The officer has probable cause to believe that an offense involving physical abuse has been committed against an adult with a physical or mental impairment
• For other cause if there is likely to be failure of justice for failure to issue a warrant.

Question 2

Under Georgia law, who holds the burden of proof for the validity of a search warrant?

Answer 2

The burden of proof is always on the state when the validity of a search warrant is in question. The challenger has the burden of production, but only after the state has met its initial burden of producing evidence showing the validity of the warrant.

Question 3

Under Georgia law, what is considered “unreasonable delay” regarding executing warrants?

Answer 3

Warrants must be executed within ten days, or the warrant is void.

Question 4

Under Georgia law, who may a police officer search when processing a warrant?

Answer 4

A police officer executing a warrant can reasonably detain or search any person in the location listed in the warrant to protect himself or keep the person from concealing or disposing anything particularly described in the search warrant.

Question 5

Under Georgia law, may law enforcement use “pen registers”?

Answer 5

The use of a pen register requires a warrant under Georgia law.

Question 6

Under Georgia law, may law enforcement make audio recordings?

Answer 6

Georgia is a “one-party” state for recording conversations by audio, which means that any party to a conversation can make an audio recording of a conversation without the knowledge of any other party to the conversation.

Question 7

Under Georgia law, may law enforcement use video recording?

Answer 7

Georgia is an “all-party” state for video recording, meaning that all parties recorded by video in a private place and out of public view must consent for their actions to be recorded.

Question 8

Under Georgia law, may a person record another in a private place?

Answer 8

By statute, it is unlawful for a person to photograph or record another in a private place without consent of all persons, and evidence obtained in violation of this statute is inadmissible in any Georgia court except to prove the violation.

The statute provides exceptions for law enforcmeent use and for real property owners who record activity on their land for security purposes.

Question 9

Under Georgia law, when does the “good-faith” exception apply?

Answer 9

There is no good-faith exception to the exclusion rule in Georgia.

Question 10

Under Georgia law, when are Miranda warnings required?

Answer 10

Miranda warnings are only required when the defendant has been taken into custody or significantly deprived of freedom of action.

Question 11

Under Georgia law, what is considered “custody”?

Answer 11

In Georgia, the inquiry focuses on whether the defendant was formally arrested, or restrained to the degree associated with formal arrest.

The inquiry does not hinge on whether the police had probable cause to make the arrest.

Question 12

Under Georgia law, is a traffic stop considered “custodial”?

Answer 12

A traffic stop is generally not considered custodial.

If the officer makes statements that would lead a reasonable person to believe the detention is not temporary, then the stop may be custodial.

Question 13

Under Georgia law, is an involuntary confession admissible?

Answer 13

Georgia law specifically provides that a statement is not voluntary when it was “induced by another by the slightest hope of benefit or remotest fear of injury.”

The hope of benefit contemplated by the statute includes the promise of a lighter sentence for the crime charged.

Question 14

Under Georgia law, what is a Gerstein hearing?

Answer 14

The U.S. Supreme Court, in Gerstein v. Pugh, held a preliminary hearing must be held after the defendant’s arrest to determine whether probable cause exists to hold the defendant, unless such determination has already been made before the defendant’s arrest through a grand jury indictment or the judicial issuance of an arrest warrant. This hearing need not be adversarial.

It is considered a commitment hearing.

Question 15

Under Georgia law, what is the initial appearance requirement?

Answer 15

Arrested parties must be brought before a committing judicial officer within 72 hours after arrest.

The defendant must be provided advanced notification of the time and place of the hearing, or he must be released.

Question 16

Under Georgia law, what is the law of bail considerations and entitlement?

Answer 16

In general, granting or refusing bail is within the sound discretion of the trial court.

The primary consideration for the court is whether the defendant poses a significant risk of fleeing or failing to appear. In addition, the court should consider whether there is a significant risk of

• threat to any person, the community, or property,
• committing a felony pending trial, or
• intimidating witnesses or obstructing the administration of justice.

Question 17

Under Georgia law, what is any defendant refused bail entitled to?

Answer 17

Any person who is arrested for a crime and is refused bail is entitled to have the charge against him heard by a grand jury within 90 days of confinement.

This period may be extended by an additional 90 days if the death penalty is being sought and the superior court grants an extension upon motion of the district attorney for good cause.

If the grand jury does not consider the charges within this 90 day period, the accused is entitled to bail upon request to the court.

Question 18

Under Georiga law, what is the competency requirement?

Answer 18

If the defendant pleads incompetency and neither party demands a jury trial, the court must have a bench trial to determine if the defendant is competent to stand trial.

Question 19

Under Georgia law, what occurs if a bench trial determines the defendant is incompetent?

Answer 19

If the defendant is incompetent, the court retains jurisdiction over the accused and must transfer the accused to the physical custody of the Department of Behavioral Heath and Developmental Disabilities.

The court can order a department physician or licensed psychologist to evaluate and diagnose the accused as to whether there is a substantial probability that the defendant will attain mental competency to stand trial in the foreseeable future.

The evaluation can be made on an outpatient basis if the defendant is not accused of a violent crime. The court retains custody for a maximum of nine months. After the time, if the defendant is still incompetent to stand trial, the court must proceed with civil commitment or release.

Question 20

Under Georgia law, must the State provide a defendant in a felony case access to any witnesses?

Answer 20

In Georgia, the defendant in a felony case must be given a copy of the indictment and list of witnesses before the arraignment. The state may amend this witness list at a later time.

Question 21

Under Georgia law, must the State provide evidence to felony defendants?

Answer 21

At least 10 days before trial, the prosecutor must disclose

• any relevant written or recorded statements made by the defendant in response to interrogation that is in the possession, custody, or control of the state or prosecution,
• the portion of any written record containing the substance of any relevant oral statement made by the defendant in response to interrogation, if intended for trial,
• any relevant written or oral statement the defendant made while in custody, and
• statements of co-conspirators that are attributable to the defendant.

Question 22

Under Georgia law, to whom does the state provide evidence when the felony defendant is a corporation, partnership, association, or labor union?

Answer 22

If the defendant is a corporation, partnership, association, or labor union, the court can grant the defendant discovery of any similar statement of a witness who was an officer or employee with the ability to legally bind the defendant or was personally involved when the offense occurred.

Question 23

Under Georgia law, must the state provide a defendant his or her criminal history?

Answer 23

The state must also give the defendant a copy of his or her Georgia Crime Information Center criminal history that is within the possession, custody, or control of the state or prosecution.

Question 24

Under Georgia law, must the state provide physical evidence?

Answer 24

The state must allow the defendant to inspect and copy books, papers, documents, photographs, tangible objects, audio and visual tapes, films, and recordings, and to inspect and photograph buildings or places that are within the possession, custody, or control of the state or prosecution, and that the prosecution intends to use as evidence.

A defendant may not copy these written and visual items if they are intended for use in a trial regarding an obscenity charge relating to children. The defendant must provide the same type of items.

Question 25

Under Georgia law, must the state provide a felony defendant any medical reports?

Answer 25

The state must also allow the defendant to inspect and copy a report of any physicial or mental examinations and scientific tests or experiments. The state must include a summary of the basis for the expert opinion rendered in the report if it will be introduced at trial and reduce oral reports to writing.

This section does not require disclosure of psychiatric or psychological treatment or therapy of any victim or witness. The defendant must provide the same type of items.

Question 26

Under Georgia law, must the state provide evidence for aggravation of punishment?

Answer 26

The prosecutor must give the defendant notice of any evidence for aggravation of punishment that the state plans to introduce in sentencing.

Question 27

Under Georgia law, what physical evidence must the defense provide?

Answer 27

At or before the announcement of the verdict, the defendant must provide any books, papers, documents, photographs, tangible objects, audio and visual tapes, films and recordings that he or she plans to use at a presentence hearing.

Question 28

Under Georgia law, what medical or scientific evidence must the defendant provide?

Answer 28

At or before the announcement of the verdict, the defendant must give the prosecutor the reports of any physical or mental examinations and scientific tests of experiments, including a summary of the basis for the exprt opinions rendered in the reports. If they are oral, the defendant must reduce them to writing.

Question 29

Under Georgia law, must the defendant provide a list of witnesses?

Answer 29

The defendant must provide a list of witnesses he will call at the presentence hearing, and any relevant statement made by those witnesses.

Question 30

Under Georgia law, must the defendant provide notice that he plans to use a defense?

Answer 30

The defendant must provide written notice that he plans to use an alibi defense.

The state provide the names, addresses, dates of birth, and telephone numbers of known witnesses the state intends to provide to rebut the alibi defense.

Both parties must promptly inform the other party of the existence and identity of subsequently discovered witnesses.

Question 31

Under Georgia law, must a criminal party provide evidence discovered after initial disclosures?

Answer 31

If either party discovers before or during trial any additional evidence or material previously requested or ordered by the court that is subject to discovery or inspection, that party must promptly inform the other party and make the evidence or material available.

Additionally, the court can order discovery or inspection to be denied, restricted, or deferred if there is a sufficient showing that disclosure would create a substantial threat of physical or financial harm to a witness.

Question 32

Under Georgia law, what evidence must be disclosed in a misdemeanor case?

Answer 32

Before arraignment, the state must give a defendant in a misdemeanor case a copy of the indictment and, if demanded, a list of the witnesses, and copy of any statement the defendant gave while in police custody. A defendant is also entitled to a copy of any written scientific reports that will be introduced at trial.

Question 33

Under Georgia, what is the jury’s minimal size?

Answer 33

A jury will only have six members.

Question 34

Under Georgia law, what is the rules surronding a jury charge?

Answer 34

If a party has an objection with regard to any part of the charge to the jury or the failure to charge the jury, he must specifically object, out of the jury’s hearing and presence, and before the jury begins deliberating.

An appellate court cannot review the jury charge if neither party objected, unless the jury charge constitutes a plain error that affects substantial rights of the parties.

Question 35

Under Georgia Law, what is the requirements surrounding “speedy trial”?

Answer 35

Under Georgia statute, any defendant who has been indicted or formally accused of a noncapital offense may make a demand for speedy trial.

The defendant must be tried in the present court term or the next regular court term, provided that in both terms, juries were impaneled and qualified to try the defendant. Failure to try the defendant during the current term or the next successive term results in acquittal of the charged offense (absolute dismissal with prejudice).

This statutory provision does not apply to capital offenses.

Question 36

Under Georgia law, what are the rules surrounding “public trial”?

Answer 36

• In Georgia, a court may clear all or part of the audience if the evidence being presented is vulgar and obscene or relates to the improper acts of the sexes, and tends to debauch the morals of the young.
• When a person younger than 16 testifies about a sexual offense, the court must empty the courtroom of everyone except the parties and their immediate families or guardians, attorneys and their secretaries, officers of the court, victim assistance coordinators, victims’ advocates and other victim assistance personnel, jurors, newspaper reporters or broadcasters, and court reporters.
• If a child who is 10 years old or younger has been a victim of cruelty to children, rape, sodomy, aggravated or simple child molestation, or sexual assault by a person with disciplinary authority or a psychotherapist, the court may order the child’s testimony be taken outside the courtroom and shown in the courtroom via two-way closed circuit television. The testimony must be taken during the trial proceeding, and the judge must have determined that the child would suffer serious emotional distress such that the child would not be able to reasonably communicate if he testified in the courtroom. The child may still be in the courtroom to identify the defendant.

Question 37

Under Georgia law, what standard applies when reviewing potential prejudice caused by substituting a judge partyway through a trial?

Answer 37

If a judge must be substituted partway through a trial, this substitution is subject to harmless error analsysi.

Question 38

Under Georgia law, when may the insanity defense be used?

Answer 38

If a defendant who has asserted an insanity defense is taking medication that may affect his demeanor, he is entitled, upon motion, to have the jury informed by the court at the beginning of the trial and in the charge to the jury that he is medicated, his behavior int he courtroom is conditioned by the medication, and that insanity has to be evaluated as of the time the alleged criminal acts were committed.

Question 39

Under Georgia law, what is required to sentence a defendant to death?

Answer 39

In a case before a jury, a court cannot sentence a defendant to death unless the jury finds an aggravating circumstance and recommends the death penalty, unless it is a conviction for treason or aircraft hijacking.

The state may offer evidence of unproven criminal charges during the sentencing phase of a death penalty trial when the state timely notifies the defendant that it plans to do so. The state must describe the charges specifically enough that the defendant knows what he must defend against.

Question 40

When does Georgia law bar prosecuting for a different crime or for the same crime upon different facts?

Answer 40

• Resulted in either a conviction or an acquittal and the subsequent prosecution is for a crime the accused could have been convicted of in the first prosecution, is for a crime the accused should have been charged with at the first prosecution, or is for a crime that involves the same conduct, unless each prosecution requires proof of a fact not required in the other, or the crime was not complete when the first trial began; or
• Was terminated improperly, and the subsequent prosecution is for a crime the accused could have been convicted of, if the former prosecution had not been improperly terminated.

Question 41

When does Georgia law not bar prosecuting for a different crime or for the same crime upon different facts?

Answer 41

A prosecution is not barred if the court overseeing the prior prosecution did not have jurisdiction over the defendant or the crime itself, or if subsequent proceedings resulted in the conviction being invalidated, set aside, reversed, or vacated, unless the accused was then found not guilty, or unless there was a finding that the evidence did not justify the verdict.

Question 42

Under Georgia law, may Georgia prosecute a case that has been tried under a different jurisdicition’s laws?

Answer 42

In Georgia, a prosecution is barred if the defendant has already been prosecuted in a U.S. district court for a crime that is within Georgia’s concurrent jurisdiction, if the prosecution resulted in either a conviction or an acquittal and the subsequent prosecution is for the same conduct, unless each prosecution requires proof of a fact not required in the other prosecution or the crime was not complete when the district court trial began.

Question 43

Under Georgia law, when can a trial properly be terminated?

Answer 43

• The accused consents, or waives her right to object, to the termination, or
• It is physically impossible to continue with the trial, there has been prejudicial condut that creates certain injustice to the defendant, the jury cannot agree on a verdict, or a juror prevented a fair trial by lying in voir dire.

Question 44

Under Georgia law, does an uncorroborated confession justify a conviction?

Answer 44

Under Georgia law, an uncorroborated confession alone does not justify a conviction.

Question 45

Under Georgia law, when is habeas corpus apply?

Answer 45

Georgia law allows a defendant to institute a habeas corpus proceeding when she argues that there was a substantial denial of her rights under the United States or Georgia constitutions in the proceeding that resulted in her conviction.

The defendant waives her right to object to the composition of the grand or trial jury unless she shows there is cause to allow her to pursue the objection after the conviction and sentence have become final.