2020 Georgia Code
Title 17 - Criminal Procedure
Chapter 7 - Pretrial Proceedings
Article 2 - Commitment Hearings
§ 17-7-28. Hearing of Evidence by Court of Inquiry; Right of Accused to Testify; Application of Rules of Evidence; Effect of Failure of Accused to Testify

The court of inquiry shall hear all legal evidence submitted by either party. If the accused wishes to testify and announces in open court before the court of inquiry his or her intention to do so, the accused may testify in his or her own behalf. If the accused elects to testify, he or she shall be sworn as any other witness and may be examined and cross-examined as any other witness. The rules of evidence shall apply except that hearsay shall be admissible. The failure of an accused to testify shall create no presumption against the accused, and no comment may be made because of such failure.

(Orig. Code 1863, § 4614; Code 1868, § 4636; Code 1873, § 4733; Code 1882, § 4733; Penal Code 1895, § 910; Penal Code 1910, § 935; Code 1933, § 27-405; Ga. L. 1962, p. 453, § 1; Ga. L. 1973, p. 292, § 1; Ga. L. 2011, p. 99, § 30/HB 24.)

- Prohibition against compelled self-incrimination, Ga. Const. 1983, Art. I, Sec. I, Para. XVI.

Testimony of accused in criminal case, § 24-5-506.

- Ga. L. 2011, p. 99, § 101/HB 24, not codified by the General Assembly, provides that this Act shall apply to any motion made or hearing or trial commenced on or after January 1, 2013.

- For article discussing available means of discovery for criminal cases in Georgia, see 12 Ga. St. B.J. 134 (1976). For article on the effect of a conviction that is based on a nolo contendere plea, see 13 Ga. L. Rev. 723 (1979). For article, "Evidence," see 27 Ga. St. U.L. Rev. 1 (2011). For article on the 2011 amendment of this Code section, see 28 Ga. St. U.L. Rev. 1 (2011). For note, "Defendant as a Witness in a Criminal Proceeding," see 3 Mercer L. Rev. 335 (1952). For note discussing the unsworn statement formerly provided for in Georgia criminal trials, see 14 Mercer L. Rev. 412 (1963). For note discussing the unsworn statement in Georgia law (prior to its abolition in 1973), see 16 Mercer L. Rev. 441 (1965).

ANALYSIS

• General Consideration
• Defendant's Right to Present Evidence
• Evidence of Bad Character and Prior Convictions
• Prosecutorial Comment on Failure to Testify

General Consideration

Section creates no right to discovery.

- There is no general right to discovery in a criminal case, and nothing in O.C.G.A. §§ 17-7-23 and17-7-28 creates one, or authorizes the defendant to go on a "fishing expedition" for evidence concededly beyond the scope of the real purpose of the commitment hearing. Pruitt v. State, 258 Ga. 583, 373 S.E.2d 192 (1988), cert. denied, 493 U.S. 1093, 110 S. Ct. 1170, 107 L. Ed. 2d 1072 (1990).

This section was for the benefit of the state as well as the defendant; and while the duty there imposed upon a justice of the peace was clearly mandatory, it can have no reasonable relation to the legality of the commitment. Harris v. Norris, 188 Ga. 610, 4 S.E.2d 840 (1939).

- Trial court did not err by allowing the defendant to testify at trial because, although the defendant contended that the defendant was not sufficiently competent to knowingly waive the right to remain silent, the record showed that experts found the defendant competent to stand trial prior to the proceedings; the trial court engaged in a full and extensive colloquy with the defendant about the right to remain silent before the defendant took the stand at trial; and the defendant rejected counsel's strong recommendation that the defendant should not testify; thus, the defendant knowingly waived the right against self-incrimination and exercised the right to testify at trial after being fully informed of the consequences. Owens v. State, 298 Ga. 813, 783 S.E.2d 611 (2016), cert. denied, 137 S. Ct. 143, 196 L. Ed. 2d 110 (U.S. 2016).

- Magistrate has no right to examine a defendant for the purpose of obtaining from the defendant contradictory statements. Cicero v. State, 54 Ga. 156 (1875).

- Because a preliminary hearing was ordinarily a much less searching exploration into the merits of a case than a trial, simply because the hearing's function was the more limited one of determining whether probable cause exists to hold the accused for trial, an accused did not have a constitutional right to confrontation as the right to confrontation applies only to trials. Gresham v. Edwards, 281 Ga. 881, 644 S.E.2d 122 (2007).

- Trial court did not err in ruling that hearsay evidence had to be admitted as legal evidence at preliminary hearings because magistrate judges were required to admit and weigh hearsay evidence in preliminary hearings; the public's interest in justice and safety is implicated when criminal charges are preliminarily dismissed against persons who were arrested pursuant to a showing of probable cause sufficient to obtain an arrest warrant. Bethel v. Fleming, 310 Ga. App. 717, 713 S.E.2d 900 (2011).

- There can be no doubt that a statement made by the accused upon the accused's commitment hearing is admissible against the accused upon the accused's trial in chief. Gresham v. State, 84 Ga. App. 403, 66 S.E.2d 255 (1951).

- It is not error for the trial judge to fail to instruct the jury as to what weight is to be given the defendant's testimony because the defendant's testimony should be given the same weight and credit as any other witness. Jester v. State, 131 Ga. App. 269, 205 S.E.2d 444 (1974).

- Although a crime is alleged to have been committed prior to July 1, 1973, the effective date of Ga. L. 1973, p. 292, § 1, the law abolishing unsworn statements, the abolition can be applied to a defendant without violating the prohibition against ex post facto laws. Walker v. State, 132 Ga. App. 274, 208 S.E.2d 5 (1974).

This section was not relevant to a hearing on a revocation of a probationary sentence since such a hearing was not a criminal trial. Sellers v. State, 107 Ga. App. 516, 130 S.E.2d 790 (1963).

- Supreme Court of Georgia reversed the judgment of the lower courts granting a district attorney a declaratory judgment because the district attorney did not have the right to bring a declaratory judgment action to obtain review of the probable cause decisions of magistrate judges at preliminary hearings or to challenge the admissibility of hearsay evidence at such hearings. Leitch v. Fleming, 291 Ga. 669, 732 S.E.2d 401 (2012).

Cited in Dumas v. State, 63 Ga. 600 (1879); Daniel v. State, 65 Ga. 199 (1880); Crosby v. State, 100 Ga. App. 49, 110 S.E.2d 94 (1959); Brown v. State, 223 Ga. 76, 153 S.E.2d 709 (1967); Almand v. Brock, 227 Ga. 586, 182 S.E.2d 97 (1971); Highland v. State, 127 Ga. App. 518, 194 S.E.2d 332 (1972); Cauley v. State, 130 Ga. App. 278, 203 S.E.2d 239 (1973); White v. Henry, 232 Ga. 64, 205 S.E.2d 206 (1974); Culpepper v. State, 132 Ga. App. 733, 209 S.E.2d 18 (1974); Hewell v. State, 232 Ga. 175, 205 S.E.2d 216 (1974); Veasley v. State, 142 Ga. App. 863, 237 S.E.2d 464 (1977); Key v. State, 147 Ga. App. 800, 250 S.E.2d 527 (1978); Pennewell v. State, 148 Ga. App. 611, 251 S.E.2d 832 (1979); Deshazier v. State, 155 Ga. App. 526, 271 S.E.2d 664 (1980); Davis v. State, 161 Ga. App. 358, 288 S.E.2d 631 (1982); Fuller v. State, 165 Ga. App. 55, 299 S.E.2d 397 (1983); Williams v. State, 165 Ga. App. 72, 299 S.E.2d 405 (1983).

Defendant's Right to Present Evidence

Defendant's testimony under oath generally.

- When a defendant testifies under oath as any other witness, the testimony must be considered as sworn testimony and not merely a statement. Pittman v. State, 133 Ga. App. 902, 212 S.E.2d 505 (1975).

- Defendant is permitted to be cross-examined as any other witness except as to general bad character or prior convictions. Such cross-examination may be thorough and sifting. Leonard v. State, 146 Ga. App. 439, 246 S.E.2d 450 (1978).

- Error is committed by the denial of the right of accused to call witnesses and present evidence at a preliminary hearing. However, such an error does not in and of itself afford grounds for relief if the defendant is subsequently indicted by a grand jury. Baldwin v. Sapp, 238 Ga. 597, 234 S.E.2d 513 (1977).

- Imperfect commitment hearing, that is, one in which the appellant is not allowed to examine persons who are potential witnesses for the state on the trial, subpoenaed by the appellant for the purpose of discovery, does not authorize the trial judge to quash the indictment or grant the appellant a new trial. Day v. State, 237 Ga. 538, 228 S.E.2d 913 (1976).

Evidence of Bad Character and Prior Convictions

Test for admission of evidence of other, wholly distinct crimes.

- On a prosecution for a particular crime, evidence which in any manner shows or tends to show that the accused has committed another crime wholly distinct, independent, and separate from that for which the accused is on trial, even though it is a crime of the same sort, is irrelevant and inadmissible, unless there be shown some logical connection between the two from which it can be said that proof of the one tends to establish the other. Rakestraw v. State, 155 Ga. App. 563, 271 S.E.2d 696 (1980).

Before evidence of independent crimes is admissible, two conditions must be satisfied. First, there must be evidence that the defendant was in fact the perpetrator of the independent crime. Second, there must be sufficient similarity or connection between the independent crime and the offense charged that proof of the former tends to prove the latter. Rakestraw v. State, 155 Ga. App. 563, 271 S.E.2d 696 (1980).

Once the identity of the accused as a perpetrator of an offense separate and distinct from the one for which the accused is on trial has been proven, testimony concerning the independent crime may be admitted for the purpose of showing identity, motive, plan, scheme, bent of mind, and course of conduct. Rakestraw v. State, 155 Ga. App. 563, 271 S.E.2d 696 (1980).

Evidence of other offenses of the defendant is admissible only if some logical connection can be shown between the offenses and the crime charged from which it can be said that proof of one tends to establish the other, other than by merely showing the bad character of the accused. Carroll v. State, 155 Ga. App. 514, 271 S.E.2d 650 (1980).

If the evidence of other transactions tends to illustrate the transaction in issue, or to establish some necessary ingredient of the particular offense under investigation, the evidence is admissible. Rakestraw v. State, 155 Ga. App. 563, 271 S.E.2d 696 (1980).

- Fact that the defendant was not arrested and charged with the commission of independent crimes does not render evidence of the commission of such crimes inadmissible for showing common motive, plan, or scheme. Woodard v. State, 155 Ga. App. 533, 271 S.E.2d 671 (1980).

- See Rakestraw v. State, 155 Ga. App. 563, 271 S.E.2d 696 (1980).

- See Wilson v. State, 155 Ga. App. 560, 271 S.E.2d 694 (1980).

- See Woodard v. State, 155 Ga. App. 533, 271 S.E.2d 671 (1980).

Prosecutorial Comment on Failure to Testify

When prohibition against comment applies.

- Statutory prohibitions upon comment on the defendant's failure to testify are applicable only when the defendant fails to testify. Gosha v. State, 239 Ga. 37, 235 S.E.2d 527 (1977).

- If the defendant testifies in defendant's own behalf, there is no violation of U.S. Const., amend. 5 when the district attorney comments upon the defendant's failure, when the defendant testified, to explain or deny the testimony of particular witnesses. Gosha v. State, 239 Ga. 37, 235 S.E.2d 527 (1977).

Prosecutorial comment places cost on assertion of U.S. Const., amend. 5. - Self-incrimination clause of U.S. Const., amend. 5 forbids comment by the prosecution on the defendant's silence. Comment by the prosecutor cuts down on the privilege against self-incrimination by making the privilege's assertion costly. Gosha v. State, 239 Ga. 37, 235 S.E.2d 527 (1977).

- While a prosecutor may not comment on a defendant's failure to testify, it is not error, nor is it improper, for the prosecutor to reflect upon the failure of the defense to present any evidence to rebut proof adduced by the state. Battle v. State, 155 Ga. App. 541, 271 S.E.2d 679 (1980).

Comment upon a defendant's failure to produce a witness is not error. Battle v. State, 155 Ga. App. 541, 271 S.E.2d 679 (1980).

- Fact that the defendant is not permitted to present any evidence at the hearing does not require the grant of a mistrial when a trial witness is questioned about coming to the preliminary hearing and testifying, since inquiry into a trial witness' failure to disclose before trial the facts to which the witness testified is a legitimate subject of cross-examination. Such questioning indicates harmful error only when examination as to prior silence is directed toward a defendant. Day v. State, 237 Ga. 538, 228 S.E.2d 913 (1976).

- Upon a proper and timely request, a defendant in a criminal proceeding is entitled to a jury instruction that defendant's failure to testify raises no presumption against the defendant. Wells v. State, 151 Ga. App. 416, 260 S.E.2d 374 (1979), overruled on other grounds, Copeland v. State, 160 Ga. App. 786, 287 S.E.2d 120 (1982).

RESEARCH REFERENCES

Am. Jur. 2d.

- 21 Am. Jur. 2d, Criminal Law, § 554.

- 23 C.J.S., Criminal Procedure and Rights of the Accused, §§ 848 et seq., 990 et seq.

- What amounts to violation of statute forbidding comment by prosecuting attorney on failure of accused to testify, 68 A.L.R. 1108.

Right to cross-examine accused as to previous prosecution for or conviction of crime as affecting his credibility, 103 A.L.R. 350; 161 A.L.R. 233.

Admissibility of plea of guilty at preliminary hearing, 141 A.L.R. 1335.

Accused who testifies in his own behalf as subject to cross-examination to show previous conviction in order to enhance punishment, 153 A.L.R. 1159.

Constitutional or statutory provision permitting comment on failure of defendant in criminal case to explain or deny by his testimony, evidence or facts against him, 171 A.L.R. 1267.

Duty of court to inform accused who is not represented by counsel of his right not to testify, 79 A.L.R.2d 643.

Comment or argument by court or counsel that prosecution evidence is uncontradicted as amounting to improper reference to accused's failure to testify, 14 A.L.R.3d 723.