2020 Georgia Code
Title 17 - Criminal Procedure
Chapter 16 - Discovery
Article 1 - Definitions; Felony Cases
§ 17-16-1. Definitions

As used in this chapter, the term:

1. "Possession, custody, or control of the state or prosecution" means an item which is within the possession, custody, or control of the prosecuting attorney or any law enforcement agency involved in the investigation of the case being prosecuted.
2. "Statement of a witness" means:
   1. A written or recorded statement, or copies thereof, made by the witness that is signed or otherwise adopted or approved by the witness;
   2. A substantially verbatim recital of an oral statement made by the witness that is recorded contemporaneously with the making of the oral statement and is contained in a stenographic, mechanical, electrical, or other recording or a transcription thereof; or
   3. A summary of the substance of a statement made by a witness contained in a memorandum, report, or other type of written document but does not include notes or summaries made by counsel.
3. "Witness" does not include the defendant.

(Code 1981, §17-16-1, enacted by Ga. L. 1994, p. 1895, § 4; Ga. L. 1995, p. 1250, § 2.)

- For article, "Criminal Law," see 53 Mercer L. Rev. 209 (2001). For article, "Death Penalty Law," see 53 Mercer L. Rev. 233 (2001). For survey article on criminal law, see 59 Mercer L. Rev. 89 (2007). For survey article on death penalty law, see 60 Mercer L. Rev. 105 (2008).

JUDICIAL DECISIONS

"Witness" does not include defendant.

- Term "witness", as it is used in O.C.G.A. § 17-16-5(a), as defined by O.C.G.A. § 17-16-1(3), "does not include the defendant"; thus, the trial court's ruling requiring the defendant to give notice to the state of any alibi testimony the defendant might give at the trial on the defendant's own behalf was erroneous. Johnson v. State, 272 Ga. 468, 532 S.E.2d 377 (2000).

- Trial court abused the court's discretion in imposing the extreme sanction of evidence exclusion for the state's failure to produce the investigator's notes because the record did not show that the investigator's informal notes, which the state could not produce, were subject to discovery under any of the provisions of Georgia's Criminal Procedure Discovery Act, O.C.G.A. § 17-16-1 et seq. State v. Brown, 333 Ga. App. 643, 777 S.E.2d 27 (2015).

§ 17-16-5(a). - Defendant, whose evidence was the sole evidence in support of an alibi defense, was required to file an intention to offer the defense under O.C.G.A. § 17-16-5(a), even when the state was aware that the defendant claimed to be elsewhere on the day of the crime, and such did not affect the defendant's right to testify under the Sixth Amendment; moreover, it was irrelevant that the state was already aware that the defendant claimed to be elsewhere on the date of the crime because the statute provided no exception for such prior knowledge and because the mere claim to be elsewhere when confronted by authorities was a far cry from intending to present the legal defense of alibi. State v. Charbonneau, 281 Ga. 46, 635 S.E.2d 759 (2006).

- Trial court did not abuse the court's discretion in ordering that the defendant provide a copy of a police department internal affairs report that the defendant received in discovery, and which involved an investigation into the defendant's arrest, to the state, as even though the state was not entitled to discovery of statements that defendant made because the reciprocal discovery statute did not include defendant as a "witness," the state sought the material for the pretrial statements that the officer who arrested the defendant made. Dorsey v. State, 261 Ga. App. 181, 582 S.E.2d 158 (2003).

If the defendant did not give the state a written discovery request pursuant to O.C.G.A. § 17-16-1 et seq., the state was not obligated under O.C.G.A. § 17-16-3 to furnish a list of witnesses on the state's own initiative; further, as defendant did not file a written demand for a list of witnesses, the state was not obligated to supply such a list. Anderson v. State, 265 Ga. App. 428, 594 S.E.2d 669 (2004).

- Failure of the state to produce oral and unrecorded statements made by the murder defendant's brother to the police did not violate the state's duty under O.C.G.A. § 17-16-1 since there can be no possession, custody, or control of a witness' statement that has neither been recorded nor committed to writing. Grabowski v. State, 234 Ga. App. 222, 507 S.E.2d 472 (1998).

There was no discovery violation because the state had no obligation to produce a statement made by a witness which had not been either recorded or committed to writing. Cox v. State, 242 Ga. App. 334, 528 S.E.2d 871 (2000).

Because no notes were taken during pre-trial interviews with witnesses, the defendant failed to establish that O.C.G.A. §§ 17-16-1(1) and17-16-7 had been violated by the state's failure to produce the written notes. Hunt v. State, 278 Ga. 479, 604 S.E.2d 144 (2004).

When a witness merely makes an oral statement, the obligation of O.C.G.A. § 17-16-7 to produce the statement is not triggered since there can be no "possession, custody, or control" thereof. Forehand v. State, 267 Ga. 254, 477 S.E.2d 560 (1996), overruled on other grounds by State v. Lane, 308 Ga. 10, 838 S.E.2d 808 (2020); Baldwin v. State, 232 Ga. App. 335, 501 S.E.2d 548 (1998).

Although a witness for the prosecution testified regarding an oral statement which the defendant made to the witness immediately following the defendant's act of stabbing the victim, the testimony was not inadmissible on the basis of the state's failure to provide the defendant's statement as recounted by the witness to the police as the statement was not written or recorded and, therefore, the state was not obliged by O.C.G.A. § 17-16-1(2)(C) to provide the statement to the defense. Holmes v. State, 275 Ga. 853, 572 S.E.2d 569 (2002).

- With regard to a defendant's convictions on two counts of cruelty to children, the trial court did not err by allowing a caseworker to testify to additional recollections the caseworker realized were not contained in the report that was prepared following an interview with the defendant as the information that the defendant asserted that the defendant should have received before trial did not involve a written statement, a written summary of a statement, or a contemporaneous recording of a statement by the caseworker; therefore, the recollections did not constitute a "statement of a witness" under O.C.G.A. § 17-16-1(2), and the state was not obligated to produce the information prior to trial under O.C.G.A. § 17-16-7. Hinds v. State, 296 Ga. App. 80, 673 S.E.2d 598 (2009).

- Even though the state had only a reference in an arrest report to an oral statement from a witness, the trial court did not err in admitting the eyewitness identification testimony over the defendant's objection that O.C.G.A. § 17-16-7 had been violated. Thompson v. State, 240 Ga. App. 26, 521 S.E.2d 876 (1999).

- In a DUI case, the defendant was not entitled to discovery of the "source code" used to program a breath test machine. The defendant did not show that the code was in the possession, custody, or control of the state as required by O.C.G.A. §§ 17-16-1(1) and17-16-23(b). Hills v. State, 291 Ga. App. 873, 663 S.E.2d 265 (2008).

- Trial court's denial of a continuance based on the prosecutor's failure to comply with the discovery statute was error entitling the defendant to a new trial. Livingston v. State, 266 Ga. 501, 467 S.E.2d 886 (1996).

- Defendants did not raise any issue at trial regarding discovery of tape recorded statements to arson investigator; thus, those arguments were waived and could not be brought up on appeal. Baker v. State, 230 Ga. App. 813, 498 S.E.2d 290 (1998).

Statement in the possession of an investigating officer is deemed to be in the possession of the state, whether or not the statement is in the state's file and the state is obliged to notify the defense of the statement's existence. However, the defendant waived the right to object to testimony based on this statement by failing to object to the testimony during direct examination, or even earlier at the Jackson-Denno hearing. Smiley v. State, 260 Ga. App. 283, 581 S.E.2d 310 (2003).

Defendant's claim on appeal that the trial court erred by allowing a confidential informant who had conducted controlled buys to testify in the defendant's criminal trial was waived on appeal in the defendant's claim that the defendant had invoked reciprocal discovery under the Georgia Criminal Procedure Discovery Act, O.C.G.A. § 17-16-1 et seq.; the trial court allowed the defendant's counsel an opportunity to interview the informant before the informant testified and the defendant's attorney did not thereafter seek a continuance in order to cure any prejudice. Brown v. State, 274 Ga. App. 302, 617 S.E.2d 227 (2005).

Trial court did not err in admitting statements the defendant's coconspirators made during the commission of a crime because the defendant did not allege or show bad faith under O.C.G.A. § 17-16-6 and did not request a continuance upon learning of the alleged discovery violation; the defendant proceeded under the reciprocal discovery provisions of O.C.G.A. § 17-16-1 et seq., and audiotapes of wiretap communications that transpired between a confidential informant and the coconspirators were not introduced at trial since the state relied upon U.S. Drug Enforcement Administration agents' testimony describing the communications. Kohler v. State, 300 Ga. App. 692, 686 S.E.2d 328 (2009).

- Summary of a witness's statement to the prosecutor was not required to be provided to defense counsel. Williams v. State, 226 Ga. App. 313, 485 S.E.2d 837 (1997).

- State was not required to provide a trial witness list or a custodial statement to the defendant who did not opt to have the criminal discovery statute applied to that defendant. Park v. State, 230 Ga. App. 274, 495 S.E.2d 886 (1998).

Statement of a witness recorded by the prosecutor two days prior to trial did not qualify for a work product exception to the hearsay rule as it was a statement within the meaning of O.C.G.A. § 17-16-1(2)(A) and did not merely constitute "notes or summaries made by counsel" within the meaning of O.C.G.A. § 17-16-1(2)(C). Bohannon v. State, 230 Ga. App. 829, 498 S.E.2d 316 (1998).

Because docketing of the defendant's case occurred before January 1, 1995, and the state refused to consent to the application of the criminal discovery statute as the state could have under O.C.G.A. § 17-16-2(d), the trial court did not err in finding that the criminal discovery statute was inapplicable. King v. State, 273 Ga. 258, 539 S.E.2d 783 (2000), cert. denied, 536 U.S. 957, 122 S. Ct. 2659, 153 L. Ed. 2d 834 (2002).

When, in a murder prosecution, a state's witness testified that the witness took a photograph of the crime scene, which had not been disclosed to the defense, and the prosecutor denied any knowledge of such a photograph, the defendant was not entitled to a mistrial because: (1) the defendant did not seek a continuance or subpoena the witness; (2) no bad faith was shown; and (3) the photo, if the photo existed, would have added nothing to the rest of the evidence. Gabriel v. State, 280 Ga. 237, 626 S.E.2d 491 (2006).

Given that the discovery provisions applicable to misdemeanor prosecutions were not the same as those applicable to felony prosecutions and in a misdemeanor case, the elective, optional mutual discovery provisions of O.C.G.A. § 17-16-1 et seq. were not available, the book-in photographs introduced at the defendant's trial were not among the discoverable material in misdemeanor cases, which included a copy of the indictment or accusation, a witness list if requested, in-custody statements, and written scientific reports. Ford v. State, 285 Ga. App. 106, 645 S.E.2d 590 (2007).

"Notes and summaries" made by a mitigation specialist who is working at the direction of trial counsel in a death penalty case should be regarded as "notes or summaries made by counsel" within the meaning of the Criminal Procedure Discovery Act, O.C.G.A. § 17-16-1(2)(C); therefore, a death penalty defendant's ability to employ a mitigation specialist to assist in an investigation is not unduly hampered by the criminal discovery procedure. Stinski v. State, 286 Ga. 839, 691 S.E.2d 854, cert. denied, 562 U.S. 1011, 131 S. Ct. 522, 178 L. Ed. 2d 385 (2010).

Trial court did not abuse the court's discretion finding no reciprocal discovery violation on the part of the state as to a witness interview because there was no evidence that a recording of the entire interview ever existed as the record showed that the state provided the defendant with a recording of a brief portion of the witness's interview and represented to the trial court that no other portion of that interview was recorded, apparently due to an equipment malfunction. Irving v. State, 351 Ga. App. 779, 833 S.E.2d 162 (2019).

- In a case charging child molestation, the prosecution was obligated to provide the defense with a copy of a child's pretrial statement to an officer, even though the statement was in the exclusive possession of the police. However, since the defendant did not seek to prevent introduction of the statement, and counsel was allowed to inspect the report, the defendant failed to show that the defendant was prejudiced by the trial court's failure to order the state to make the report available to the defendant for copying, and the state's discovery violation did not give rise to any reversible error. Wilkerson v. State, 266 Ga. App. 721, 598 S.E.2d 364 (2004).

- Theft by shoplifting conviction was upheld on appeal, despite the defendant's claim that the state violated the reciprocal discovery requirements of the Georgia Criminal Procedure Discovery Act, O.C.G.A. § 17-16-1 et seq., as the defendant conceded at trial that the state did not act in bad faith and failed to request a continuance, but instead, communicated a readiness for trial to both the court and the prosecutor. Brown v. State, 281 Ga. App. 557, 636 S.E.2d 717 (2006).

- Trial court did not err when the court prohibited the testimony of a defense witness due to the defendant's violation of the reciprocal discovery statute as there was evidence to support the trial court's findings of bad faith and prejudice. Grier v. State, 276 Ga. App. 655, 624 S.E.2d 149 (2005).

- Defendant had not shown that counsel was ineffective for not engaging in reciprocal discovery under O.C.G.A. § 17-16-1. The defendant offered no evidence that counsel was unprepared or unaware of the salient evidence before trial and had not shown that the outcome would have been different had counsel opted into discovery. Anuforo v. State, 293 Ga. App. 1, 666 S.E.2d 50 (2008).

Cited in Kinney v. State, 223 Ga. App. 418, 477 S.E.2d 843 (1996); Revera v. State, 223 Ga. App. 450, 477 S.E.2d 849 (1996); Blackstock v. State, 270 Ga. 117, 506 S.E.2d 130 (1998); Baker v. State, 238 Ga. App. 285, 518 S.E.2d 455 (1999); Knowles v. State, 245 Ga. App. 523, 538 S.E.2d 175 (2000); Williams v. State, 261 Ga. App. 410, 582 S.E.2d 556 (2003); Jaheni v. State, 285 Ga. App. 266, 645 S.E.2d 735 (2007); Garrett v. State, 285 Ga. App. 282, 645 S.E.2d 718 (2007); Walker v. Johnson, 282 Ga. 168, 646 S.E.2d 44 (2007); Grayer v. State, 282 Ga. 224, 647 S.E.2d 264 (2007); Muhammad v. State, 282 Ga. 247, 647 S.E.2d 560 (2007); Nichols v. State, 288 Ga. App. 118, 653 S.E.2d 300 (2007); Jones v. State, 282 Ga. 784, 653 S.E.2d 456 (2007); Johnson v. State, 293 Ga. App. 32, 666 S.E.2d 452 (2008); Theophile v. State, 295 Ga. App. 517, 672 S.E.2d 479 (2009); Wright v. State, 285 Ga. 428, 677 S.E.2d 82 (2009); Scott v. State, 298 Ga. App. 376, 680 S.E.2d 482 (2009); Patterson v. State, 312 Ga. App. 793, 720 S.E.2d 278 (2011); Morris v. State, 324 Ga. App. 756, 751 S.E.2d 551 (2013).

OPINIONS OF THE ATTORNEY GENERAL

Authority to set and amend bonds.

- Once the clerk of the superior court properly files an indictment or once a valid accusation is entered, the superior court has exclusive jurisdiction over the case including all bond issues, unless the court invokes the court's authority to delegate jurisdiction to the magistrate court under former O.C.G.A. § 17-16-1(h) or O.C.G.A. § 15-1-9.1(e). 1997 Op. Att'y Gen. No. 97-19.

Discovery requests for criminal investigation records of the Georgia Bureau of Investigation should be coordinated with the prosecuting attorney who should be the primary source for determining the response. 1998 Op. Att'y Gen. No. 98-15.

RESEARCH REFERENCES

ALR.

- Construction and application of U.S. Const. Art. I, § 10, cl. 1, and state constitutional provisions proscribing state bills of attainder, 63 A.L.R. 6th 1.