2020 Georgia Code
Title 17 - Criminal Procedure
Chapter 16 - Discovery
Article 1 - Definitions; Felony Cases
§ 17-16-8. Lists of Names and Information Concerning Witnesses

1. The prosecuting attorney, not later than ten days before trial, and the defendant's attorney, within ten days after compliance by the prosecuting attorney but no later than five days prior to trial, or as otherwise ordered by the court, shall furnish to the opposing counsel as an officer of the court, in confidence, the names, current locations, dates of birth, and telephone numbers of that party's witnesses, unless for good cause the judge allows an exception to this requirement, in which event the counsel shall be afforded an opportunity to interview such witnesses prior to the witnesses being called to testify.
2. Nothing in this Code section shall be construed to require the prosecuting attorney to furnish the home address, date of birth, or home telephone number of a witness who is a law enforcement officer. Instead, in such cases, the prosecuting attorney shall furnish to the defense attorney the law enforcement officer's current work location and work phone number.

(Code 1981, §17-16-8, enacted by Ga. L. 1994, p. 1895, § 4; Ga. L. 1995, p. 1250, § 2; Ga. L. 1996, p. 1624, § 4.)

- Pursuant to Code Section 28-9-5, in 1996, the existing provisions of this Code section were designated as subsection (a).

Failure to include coindictee's name on witness list was not reversible error since the defendant was notified a month before trial that the state was dropping charges against the coindictee in exchange for the coindictee's testimony against the defendant. Mize v. State, 269 Ga. 646, 501 S.E.2d 219 (1998), cert. denied, 525 U.S. 1078, 119 S. Ct. 817, 142 L. Ed. 2d 676 (1999).

Even though a witness's name was not on the state's witness list, the state's formal disclosure of the witness as the confidential informant six weeks prior to trial, combined with: (i) the summary of the witness's testimony found in the search warrant affidavit given to the defendant; (ii) the defendant's admitted knowledge of the witness's identity prior to the formal disclosure; (iii) the defendant's own pretrial reference to the witness as a material witness; and (iv) the defendant's attempts to interview the witness prior to trial, fulfilled the purpose of the witness list rule. McLarty v. State, 238 Ga. App. 27, 516 S.E.2d 818 (1999).

No error occurred in permitting an unlisted witness, a police officer, to testify to facts contained in a police report regarding the defendant's arrest a decade earlier for rape as defense counsel was informed that the police officer would be called to testify if the victim of the attack a decade earlier could not be located, was notified during discovery that the police officer would have to testify, was given reports during discovery that contained the officer's name, and was allowed an opportunity to interview the officer. Rose v. State, 275 Ga. 214, 563 S.E.2d 865 (2002).

State was properly allowed to present a cab driver's testimony, even though the cab driver was not on the witness list, as the state established good cause for not having the cab driver on the witness list by demonstrating that the cab driver fled just before the trial commenced and as the defendant was given the opportunity to interview the cab driver prior to the cab driver testifying at trial. Puga-Cerantes v. State, 281 Ga. 78, 635 S.E.2d 118 (2006).

Trial court did not abuse the court's discretion in allowing two witnesses to testify regarding damages done to a business's gate at the defendant's trial for armed robbery, theft of a motor vehicle, and other crimes, who were not identified on the prosecutor's witness list as the manager of the location from which the defendant stole the vehicle and damaged the gate suffered a severe back injury the day before testifying. The trial court properly allowed defense counsel to interview the repairman and the bookkeeper, who did testify as to the gate's damages, and the defendant never requested a continuance. Johnson v. State, 293 Ga. App. 32, 666 S.E.2d 452 (2008).

- O.C.G.A. § 17-16-8 was not violated since the state provided the defendants with a copy of the taped statement of a witness on the day it was taken, four days before trial, and with a transcript thereof the following morning, and since, at trial, neither the defendant sought a recess to interview the witness. Johnson v. State, 241 Ga. App. 448, 526 S.E.2d 903 (1999).

- In a prosecution for armed robbery and furnishing a pistol to a minor, the trial court did not err in a motion in limine to exclude the testimony of a K-9 officer identified as a witness less than ten days before trial because the defendant was neither surprised nor prejudiced by the officer's testimony. Rollinson v. State, 276 Ga. App. 375, 623 S.E.2d 211 (2005).

With regard to the defendant's conviction for burglary, the trial court did not abuse the court's discretion by allowing a government witness to testify even though the state failed to include the witness on the state's witness list because the witness was not a "surprise" witness or unknown to the defendant; rather, the witness was a key element of the defendant's own explanation for the defendant's presence at the victims' home. Further, the trial court granted defense counsel an opportunity to interview the witness, and counsel asked for no additional relief following that interview, and the defendant did not argue or cite any evidence that the state's failure to list the witness as a witness resulted from bad faith. Luker v. State, 291 Ga. App. 434, 662 S.E.2d 240 (2008).

Trial court did not abuse the court's discretion in allowing a new witness for the state to testify at trial even though the state failed to disclose the witness at least ten days before trial in violation of O.C.G.A. § 17-16-8(a) because the defendant did not contend that the state acted in bad faith, and the defendant acknowledged in the defendant's appellate brief that the defendant believed that the state's failure to provide the name of the witness was unintentional; the defendant did not seek an opportunity to interview the witness despite the state's invitation for the defendant to do so. Taylor v. State, 305 Ga. App. 748, 700 S.E.2d 841 (2010).

Trial court did not abuse the court's discretion in denying the defendant's motion for a continuance and permitting the state's witnesses to testify because the defendant did not ask to interview the witnesses before the witnesses testified and did not contend that the defendant was surprised by the witnesses' testimony or prejudiced by not knowing earlier that the witnesses were going to testify; the defendant made no showing that the state acted in bad faith in failing to list the witnesses earlier. Powers v. State, 314 Ga. App. 733, 725 S.E.2d 848 (2012).

Trial court did not abuse the court's discretion by denying the defendant's request for a continuance when the court determined that the second similar transaction was admissible because the record showed months before trial, the state filed notice of the state's intent to introduce that similar transaction, listing the prior offense's case number, date of offense, county of offense, disposition, and victim's name, and defense counsel met with the victim prior to the testimony, but the victim refused to talk to counsel. Arbegast v. State, 332 Ga. App. 414, 773 S.E.2d 283 (2015).

Trial court erred in excluding the defendant's witness from testifying based on the failure to provide the state with a phone number and birth date for the witness because the state already possessed the information on the witness, who had been an occupant of the vehicle during the traffic stop. However, the error was harmless in light of the overwhelming evidence of the defendant's guilt. Diaz v. State, 348 Ga. App. 256, 820 S.E.2d 249 (2018), cert. denied, S20C0591, 2019 Ga. LEXIS 542 (Ga. 2019).

- Because the defendant did not request a continuance upon denial of a motion to compel based on the state's failure to provide the birth date of a witness until shortly before trial, the defendant waived the right to argue that the trial court erred in allowing the witness to testify. Dickerson v. State, 241 Ga. App. 593, 526 S.E.2d 443 (1999).

Trial court did not abuse the court's discretion under O.C.G.A. § 17-16-6 in permitting witnesses to testify whose birth dates were not provided to the defendant at least ten days before the trial, as required under O.C.G.A. § 17-16-8, since: (1) the defendant did not request that the trial court exclude the witnesses' testimony; (2) the witnesses' birth dates were provided to the defense during trial; (3) the defense did not request a continuance to attempt to cure any prejudice from the failure to have the birth dates before trial; and (4) the defense had the opportunity to interview the witnesses before trial. Ehle v. State, 275 Ga. 560, 570 S.E.2d 284 (2002).

- Trial court did not abuse the court's discretion in excluding a witness as the defendant did not disclose the witness's written statement to the state within ten days of trial; further, the defendant did not include the witness's birth date on the witness list and the state was unable to investigate the witness's criminal record, if any. Clark v. State, 271 Ga. App. 534, 610 S.E.2d 165 (2005).

- While the state failed to provide the defense with the requisite information on a witness, the trial court found no harm since information as to the witness's criminal history appeared in a transcript provided to the defense. Hammond v. State, 255 Ga. App. 549, 565 S.E.2d 873 (2002).

- Trial court properly dismissed the defendant's motion for a mistrial because the court did not abuse the court's discretion by concluding that the state did not act in bad faith by not furnishing the defendant with the victim's complete current address. Further, the defense counsel did not accept the offer to interview the victim under the condition that the victim imposed, and the defendant did not request a continuance. Shields v. State, 264 Ga. App. 232, 590 S.E.2d 217 (2003).

- Trial court did not err in denying the defendant's motion in limine to exclude the testimony of two witnesses since the state's witness list provided 17 days prior to trial failed to contain the name of either witness and the list provided ten days prior to trial contained only one name but had incorrect contact information for that witness. Defendant failed to show how the defendant was prejudiced by the late identification or that the outcome would have been different absent such; nor did the defendant request a continuance to cure any prejudice the defendant claimed may have arisen as a result of the state's failure to comply with O.C.G.A. § 17-16-8(a). Morris v. State, 268 Ga. App. 325, 601 S.E.2d 804 (2004).

- Trial court did not abuse the court's discretion in refusing to exclude the DNA results from testing of a bloody knife and tee-shirt in the defendant's trial for murder, which the state sought to introduce three days into the state's case-in-chief, since the state had just received the results and the defense counsel acknowledged at the hearing on the defendant's motion for a new trial that there was no evidence of prosecutorial misconduct and it was undisputed that the defendant was afforded an opportunity to interview the witnesses. Cockrell v. State, 281 Ga. 536, 640 S.E.2d 262 (2007).

- Since the defendant made no showing that the defendant was prejudiced as a result of the state's failure to make a custodial statement available to the defendant prior to trial or that the state acted in bad faith in failing to list a witness, the trial court did not abuse the court's discretion in permitting the witness to testify. Jones v. State, 243 Ga. App. 351, 532 S.E.2d 120 (2000).

A party charged with producing the statutorily charged information may not rest solely on the fact that the information is not within their possession because the statute imposes an affirmative duty on the producing party to attempt to acquire the information. State v. Dickerson, 273 Ga. 408, 542 S.E.2d 487 (2001).

- Although the name of the emergency medical technician (EMT) had not been provided to the state before trial in violation of subsection (a) of O.C.G.A. § 17-16-8, the EMT should have been allowed to testify after the state was afforded the opportunity to interview the EMT. Massey v. State, 272 Ga. 50, 525 S.E.2d 694 (2000).

- Trial court did not err in denying the defendant's request for a continuance based on the state violating the state's discovery obligations and failing to disclose exculpatory evidence when the state failed to provide the defendant with the transporting officer's out-of-state address because the state, acting in the state's role as the prosecution, has no obligation to locate defense witnesses and the defendant failed to show that any alleged discovery violation caused the defendant harm. Lafavor v. State, 334 Ga. App. 125, 778 S.E.2d 377 (2015).

- When defense counsel did not provide the prosecutor with timely notice of the defendant's expert witness or timely provide a copy of the witness's report, as required by O.C.G.A. §§ 17-16-4(b)(2),17-16-7, and17-16-8(a), and the witness was excluded, the defendant did not receive ineffective assistance of counsel; while counsel was deficient, it was not shown that the defendant was prejudiced as another expert testified to essentially the same facts and conclusions as the excluded witness, and referred to the excluded witness's findings, so the excluded witness's testimony would have been cumulative, and it was not shown that the outcome of the defendant's trial would have differed had counsel's performance not been deficient. Mann v. State, 276 Ga. App. 720, 624 S.E.2d 208 (2005).

- One month before trial, the state filed a notice of the state's intent to present nonstatutory aggravating circumstances involving several incidents that occurred while the defendant was in jail awaiting trial; this notice and the supplement to the witness list were not untimely. Brannan v. State, 275 Ga. 70, 561 S.E.2d 414, cert. denied, 537 U.S. 1021, 123 S. Ct. 541, 154 L. Ed. 2d 429 (2002).

With regard to a defendant's malice murder conviction arising from the suffocation death of the defendant's newborn daughter, the trial court did not err in excluding testimony from the defendant's proffered expert witness on police interrogation techniques and false confessions based on the state not being timely notified of that witness and because the area in which the expert would express an opinion had not reached a level of scientific reliability so as to allow the testimony. It was within the trial court's authority to exclude the expert's testimony for the defendant's failure to disclose the expert and there was no showing that the false confession theory and the interrogation method satisfied the evidentiary test in criminal cases set forth in case law. Wright v. State, 285 Ga. 428, 677 S.E.2d 82 (2009), cert. denied, 558 U.S. 1123, 130 S. Ct. 1076, 175 L. Ed. 2d 903 (2010).

- Even if the trial court assigned an incorrect reason for denying the defendant a continuance after the state untimely revealed a confidential informant's identity under O.C.G.A. § 17-16-8(a), the defendant did not show prejudice; defense counsel interviewed the informant and cross-examined the informant extensively about the informant's criminal history. Ingram v. State, 286 Ga. App. 662, 650 S.E.2d 743 (2007), overruled on other grounds by State v. Lane, 308 Ga. 10, 838 S.E.2d 808 (2020).

- In a capital murder case in which the defendant was granted ex parte orders for mental health experts to examine the defendant, the trial court erred in revealing to the state the identities of the experts, the experts' areas of practice, and the bases for the examinations; remand was required to assess the likelihood of prejudice and take curative measures. Putnal v. State, 303 Ga. 569, 814 S.E.2d 307 (2018).

Trial court did not abuse the court's discretion in refusing to allow an expert to testify that the defendant had post-traumatic stress disorder (PTSD) on the basis that the defendant did not disclose the expert as an expert witness in a timely fashion as the defendant did not make a proffer of the expert's testimony and, therefore, could not demonstrate prejudice; plus, the defendant testified at trial and informed the jury of the PTSD diagnosis. Keller v. State, 308 Ga. 492, 842 S.E.2d 22 (2020).

- Trial court had the discretion under O.C.G.A. § 17-16-6 to exclude witnesses provided by the defendant on the day of trial in violation of O.C.G.A. § 17-16-8(a); bad faith was satisfied because nothing in the record indicated that the defendant did not know of the witnesses, or did not intend to call the witnesses, until the day of the trial, and prejudice was established because the state had no notice of the witnesses until the day of trial and had no opportunity to investigate the witnesses or their testimony. Acey v. State, 281 Ga. App. 197, 635 S.E.2d 814 (2006).

Excluding a witness's testimony on the ground that the defendants did not comply with proper discovery procedures, in violation of O.C.G.A. § 17-16-8(a), was harmless error, if error at all, in light of the overwhelming evidence of the defendants' guilt. Carter v. State, 285 Ga. 394, 677 S.E.2d 71 (2009).

- Claim that the trial court abused the court's discretion by excluding the testimony of the defendant's father provided no basis for reversal because the defendant failed to make an offer of proof as to the father's testimony. Clemens v. State, 318 Ga. App. 16, 733 S.E.2d 67 (2012).

- Although the defendant had sought a mistrial after the prosecutor announced on the fourth day of trial that one disclosed witness had told the prosecutor of additional incriminatory testimony and that a previously undisclosed witness, who had not yet been found, might testify, neither witness ever testified; thus, the denial of the motion for mistrial was moot. Moreover, as required by O.C.G.A. § 17-16-8(a), the trial court allowed the defendant to interview the disclosed witness. Lankford v. State, 295 Ga. App. 590, 672 S.E.2d 534 (2009).

In a case in which the defendant argued that the trial court abused the court's discretion when the court denied the defendant's motion for a mistrial, arguing that the state violated O.C.G.A. § 17-16-8(a) by failing to disclose identifying information concerning a witness, the state did not violate § 17-16-8 since the state could not locate the witness and did not call the witness at trial. Manaois v. State, 300 Ga. App. 176, 684 S.E.2d 315 (2009).

- Defendant waived the issue that the trial court erred in denying the defendant's motion for a continuance and permitting the state's witnesses to testify because the defendant withdrew an objection when a substitute officer was called as a witness. Powers v. State, 314 Ga. App. 733, 725 S.E.2d 848 (2012).

Cited in Laney v. State, 271 Ga. 194, 515 S.E.2d 610 (1999); Sullivan v. State, 242 Ga. App. 839, 531 S.E.2d 367 (2000); Fairbanks v. State, 242 Ga. App. 830, 531 S.E.2d 381 (2000); Sweeder v. State, 246 Ga. App. 557, 541 S.E.2d 414 (2000); Wilbanks v. State, 251 Ga. App. 248, 554 S.E.2d 248 (2001); Grier v. State, 276 Ga. App. 655, 624 S.E.2d 149 (2005).