2020 Georgia Code
Title 24 - Evidence
Chapter 5 - Privileges
§ 24-5-505. Party or Witness Privilege

1. No party or witness shall be required to testify as to any matter which may incriminate or tend to incriminate such party or witness or which shall tend to bring infamy, disgrace, or public contempt upon such party or witness or any member of such party or witness's family.
2. Except in proceedings in which a judgment creditor or judgment creditor's successor in interest seeks postjudgment discovery involving a judgment debtor pursuant to Code Section 9-11-69, no party or witness shall be required to testify as to any matter which shall tend to work a forfeiture of his or her estate.
3. No official persons shall be called on to disclose any state matters of which the policy of the state and the interest of the community require concealment.

(Code 1981, §24-5-505, enacted by Ga. L. 2011, p. 99, § 2/HB 24.)

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

- For article, "Caught Between a Rock and a Hard Place: Invocation of the Privilege Against Self-Incrimination in Civil Cases," see 15 (No. 1) Ga. St. B.J. 14 (2009). For note discussing discovery proceedings available to creditors, see 12 Ga. L. Rev. 814 (1978). For comment discussing the privilege against answers tending to disgrace but not incriminate, see 18 Ga. B.J. 88 (1955). For comment, "The Government's Privilege to Withhold the Identity of Informers, as Applied to Decoys," see 20 Ga. B.J. 562 (1958).

ANALYSIS

• General Consideration
• Self-Incrimination
• Forfeiture of Estate
• State Matters

General Consideration

Editor's notes.

- In light of the similarity of the statutory provisions, decisions under former Code 1882, §§ 3102, 3814, 3870, former Civil Code 1895, §§ 3947, 3957, 5288, former Civil Code 1910, §§ 4544, 4554, 5877, former Code 1933, §§ 38-1102, 38-1205, 38-1711, Ga. L. 1978, p. 2000, § 1, and former O.C.G.A. § 24-9-27 are included in the annotations for this Code section.

Public policy underlying this privilege is to protect and encourage the flow of information to law enforcement officials. Thornton v. State, 238 Ga. 160, 231 S.E.2d 729, later appeal, 239 Ga. 693, 238 S.E.2d 376 (1977), cert. denied, 434 U.S. 1073, 98 S. Ct. 1260, 55 L. Ed. 2d 778 (1978) (decided under former Code 1933, §§ 38-1102, 38-1205, and 38-1711).

- When it is plain from the context of the questioning in general that the plaintiff was invoking the Fifth Amendment privilege against self-incrimination it is not necessary to invoke the privilege in express terms. Temple v. Temple, 228 Ga. 73, 184 S.E.2d 183 (1971) (decided under former Code 1933, §§ 38-1102, 38-1205, and 38-1711).

- In a widow's wrongful death suit arising out of a vehicle accident in which defendant driver was charged, the driver did not waive the driver's Fifth Amendment privilege by speaking to insurance investigators in the accident prior to the lawsuit being brought. U-Haul Co. of Arizona v. Rutland, 348 Ga. App. 738, 824 S.E.2d 644 (2019).

- Self-incrimination privilege involved important policy and constitutional implications not applicable to the forfeiture privilege. Kushner v. Mascho, 143 Ga. App. 801, 240 S.E.2d 290 (1977) (decided under former Code 1933, §§ 38-1102, 38-1205, and 38-1711).

- Protection was not limited to cases if the question or answer had a direct tendency to incriminate the defendant or to expose the defendant to a penalty or forfeiture; the defendant was protected from answering any question which may form a link in the chain by which such cases were to be established. Simpson v. Simpson, 233 Ga. 17, 209 S.E.2d 611 (1974) (decided under former Code 1933, §§ 38-1102, 38-1205, and 38-1711).

- Witness may not stand moot, but must testify that the answer would incriminate or tend to incriminate oneself, work a forfeiture of one's estate, or tend to bring infamy or disgrace or public contempt upon the witness or any member of one's family as the case may be, otherwise one would be in contempt. Wynne v. State, 139 Ga. App. 355, 228 S.E.2d 378 (1976) (decided under former Code 1933, §§ 38-1102, 38-1205, and 38-1711).

- Although a person does have a right to invoke the privilege in a civil case in order to protect oneself, when the person does so, an inference against the person's interest may be drawn by the factfinder. Simpson v. Simpson, 233 Ga. 17, 209 S.E.2d 611 (1974) (decided under former Code 1933, §§ 38-1102, 38-1205, and 38-1711); Jefferson Ins. Co. v. Dunn, 224 Ga. App. 732, 482 S.E.2d 383 (1997);(decided under former O.C.G.A. § 24-9-27).

- Trial court's protective order was vacated and case remanded with instructions for the trial court to reconsider the renter's invocation of a Fifth Amendment privilege as the privilege pertained to each individual discovery request because the trial court did not evaluate the privilege with respect to requests to produce and such was necessary since the privilege can, but did not automatically apply to the act of producing documents. U-Haul Co. v. Rutland, 348 Ga. App. 738, 824 S.E.2d 644 (2019).

- State was without authority to appeal from the grant of a motion to disclose the identity of the confidential informant because it was not among the enumerated instances set forth in O.C.G.A. § 5-7-1, nor was the order dispositive of the charges against the defendant. Glenn v. State, 271 Ga. 604, 523 S.E.2d 13 (1999) (decided under former O.C.G.A. § 24-9-27).

Public policy in Georgia favored nondisclosure of the identity of a confidential informant (CI); because a CI did not participate in a controlled drug buy, the defendant's request to disclose the CI's identity was properly denied; while the defendant argued that the CI was a witness to whether or not the defendant consented to a search of the defendant's car, whether the defendant consented was immaterial because an officer was authorized to arrest the defendant for drug possession, and based on that arrest, the officer had the authority to search the car. Little v. State, 280 Ga. App. 60, 633 S.E.2d 403 (2006) (decided under former O.C.G.A. § 24-9-27).

Trial court did not err in refusing the defendant's request to disclose the identity of a confidential informant in order to support an entrapment defense as the defendant was unable to present an arguably persuasive case regarding the lack of a predisposition to commit the crime based specifically on: (1) a discussion with a detective about the impending drug sale; (2) the defendant's act of displaying a weapon considered to be protection against a robbery; and (3) the defendant's act of coordinating the movements of the numerous participants in the large-scale transaction the defendant was a part of. Griffiths v. State, 283 Ga. App. 176, 641 S.E.2d 169 (2006) (decided under former O.C.G.A. § 24-9-27).

- It was not reversible error for the court to fail or refuse to instruct a witness of the existence of a law designed for the witness's own protection and not for the protection of another person who was on trial; whatever might be its effect if the witness were personally afterward put on trial, a third person, against whom the witness testified, cannot complain that such witness was not so instructed. Guiffrida v. State, 61 Ga. App. 595, 7 S.E.2d 34 (1940) (decided under former Code 1933, §§ 38-1102, 38-1205, and 38-1711).

When the court instructed the witness as follows: "If at any time there's any question as to whether or not you should answer a question as possibly tending to incriminate you or as holding you up for public contempt, for public ridicule, you may have a right to refuse to answer it," there was no error, since the court gave the witness fair and adequate notice of the witness's privilege against self-incrimination. Wilbanks v. Wilbanks, 220 Ga. 665, 141 S.E.2d 161 (1965) (decided under former Code 1933, §§ 38-1102, 38-1205, and 38-1711).

Privilege against self-incrimination can be waived in praesenti. Feig v. Feig, 246 Ga. 763, 272 S.E.2d 723 (1980) (decided under former Code 1933, §§ 38-1102, 38-1205, and 38-1711).

- Privilege against self-incrimination can be voluntarily waived by property settlement agreement as to future income tax returns and financial information covering future financial events unknown at the time of entering into the contract. Feig v. Feig, 246 Ga. 763, 272 S.E.2d 723 (1980) (decided under former Code 1933, §§ 38-1102, 38-1205, and 38-1711).

- When a person represented by counsel enters into a property settlement agreement which has the necessary effect of waiving a constitutional right, express notice of or reference to such waiver is not required. Feig v. Feig, 246 Ga. 763, 272 S.E.2d 723 (1980) (decided under former Code 1933, §§ 38-1102, 38-1205, and 38-1711).

Waiver by a witness at a former trial of the same case will not bar the witness's right to exercise the witness's privilege. Georgia R.R. & Banking Co. v. Lybrend, 99 Ga. 421, 27 S.E. 794 (1896) (decided under former Civil Code 1895, §§ 3947, 3957, and 5288); Mallin v. Mallin, 227 Ga. 833, 183 S.E.2d 377 (1971);(decided under former Code 1933, §§ 38-1102, 38-1205, and 38-1711).

Party, though introduced as a witness in party's own behalf, may, upon cross-examination as to matters not voluntarily testified about on direct examination, decline to give testimony which would tend to incriminate the party, or to bring infamy, disgrace, or public contempt upon the witness or the witness's family, notwithstanding the fact that at a previous trial of the case the witness had waived the privilege of remaining silent as to these matters. A waiver of this kind is not binding upon a witness at a trial subsequent to that at which the waiver was made. Bass v. Bass, 222 Ga. 378, 149 S.E.2d 818 (1966) (decided under former Code 1933, §§ 38-1102, 38-1205, and 38-1711).

Cited in State v. Wakefield, 324 Ga. App. 587, 751 S.E.2d 199 (2013).

Interest of the court in considering a refusal on the grounds of incrimination is not that the defendant may be criminally implicated by an answer but that the defendant might conceivably be so implicated. Tennesco, Inc. v. Berger, 144 Ga. App. 45, 240 S.E.2d 586 (1977) (decided under former Code 1933, §§ 38-1102, 38-1205, and 38-1711).

- Questioned party's invocation of a constitutional privilege to be free from compulsion to testify against oneself must be honored. Eason v. Berger & Co., 153 Ga. App. 126, 264 S.E.2d 579 (1980) (decided under former Code 1933, §§ 38-1102, 38-1205, and 38-1711).

- Witness in a state court can claim the privilege against self-incrimination as to matters which might tend to incriminate the witness under either state or federal law. Mallin v. Mallin, 227 Ga. 833, 183 S.E.2d 377 (1971) (decided under former Code 1933, §§ 38-1102, 38-1205, and 38-1711).

- Privilege against self-incrimination was that of the person under examination as a witness, and was intended for the witness's protection only. Thomas v. State, 245 Ga. 688, 266 S.E.2d 499 (1980), sentence vacated, 449 U.S. 988, 101 S. Ct. 523, 66 L. Ed. 2d 285 (1980) (remanded for consideration in light of Godfrey v. Georgia, 446 U.S. 420, 100 S. Ct. 1759, 64 L. Ed. 2d 398 (1980)), aff'd, 247 Ga. 233, 275 S.E.2d 318 (1981) decided under former Code 1933, §§ 38-1102, 38-1205, and 38-1711); Riley v. State, 257 Ga. 91, 355 S.E.2d 66 (1987);(decided under former O.C.G.A. § 24-9-27).

Privilege cannot be asserted in advance of the questions actually propounded in the examination or hearing. Chastain v. State, 113 Ga. App. 601, 149 S.E.2d 195 (1966) (decided under former Code 1933, §§ 38-1102, 38-1205, and 38-1711).

- What was impermissible was that a defendant in a civil case merely slides out of the defendant's obligations by a brash assertion that any and all questions directed to the defendant would tend to incriminate the defendant, regardless of the likelihood of such result. Tennesco, Inc. v. Berger, 144 Ga. App. 45, 240 S.E.2d 586 (1977) (decided under former Code 1933, §§ 38-1102, 38-1205, and 38-1711).

- Witness was required to answer questions tending to bring infamy, disgrace, or public contempt upon the witness or the witness's family, if the proposed evidence was material to the issues in the case; it was only if the proposed answer had no effect on the case except to impair the witness's credibility that the witness may fall back on the privilege. Brown v. State, 242 Ga. 536, 250 S.E.2d 438 (1978) (decided under former Code 1933, §§ 38-1102, 38-1205, and 38-1711).

- It was not error for the trial court to allow the state to advise a defense witness before the witness testified regarding Miranda warnings and the witness's Fifth Amendment rights when, in an earlier statement, the witness detailed how the defendant had forced the witness to have sexual intercourse with the victim on three occasions creating the possibility that the witness could be charged with felony offenses. Allen v. State, 210 Ga. App. 447, 436 S.E.2d 559 (1993), overruled on other grounds by State v. Burns, 829 S.E.2d 367, 2019 Ga. LEXIS 400 (Ga. 2019), overruled on other grounds by State v. Lane, 2020 Ga. LEXIS 98 (Ga. 2020) (decided under former O.C.G.A. § 24-9-27).

- When a question is propounded it belongs to the court to consider and to decide whether any direct answer to the question can implicate the witness. If this be decided in the negative, then the witness may answer the question without violating the privilege which is secured to the witness by law. If a direct answer to it may incriminate the witness, then the witness must be the sole judge what the witness's answer would be. The court cannot participate with the witness in this judgment. If the question be of such a description that the answer to the question may or may not incriminate the witness, according to the purport of that answer, it must rest with the witness, who alone can tell what it would be, to answer the question or not. If in such a case the witness says, upon the witness's oath, that the witness's answer would incriminate the witness, the court can demand no other testimony of the fact. Bass v. Bass, 222 Ga. 378, 149 S.E.2d 818 (1966) (decided under former Code 1933, §§ 38-1102, 38-1205, and 38-1711); Interstate Life & Accident Ins. Co. v. Wilmont, 123 Ga. App. 337, 180 S.E.2d 913 (1971); Wynne v. State, 139 Ga. App. 355, 228 S.E.2d 378 (1976) (decided under former Code 1933, §§ 38-1102, 38-1205, and 38-1711); Baker v. State, 162 Ga. App. 606, 292 S.E.2d 451 (1982); Lawrence v. State, 257 Ga. 423, 360 S.E.2d 716 (1987) (decided under former Code 1933, §§ 38-1102, 38-1205, and 38-1711);(decided under former O.C.G.A. § 24-9-27);(decided under former O.C.G.A. § 24-9-27).

When a court cannot say that answers to questions concerning a defendant's financial resources and dealings might not tend to incriminate the defendant in any matter, under either state or federal law, a trial judge does not err in allowing the defendant to determine whether answers to the interrogatories might tend to incriminate the defendant. Mallin v. Mallin, 227 Ga. 833, 183 S.E.2d 377 (1971) (decided under former Code 1933, §§ 38-1102, 38-1205, and 38-1711).

Mere say-so of the witness did not establish a substantial, real danger of incrimination: the defendant must also show the defendant had reasonable cause to apprehend danger of incrimination from the answer, and the court must first determine whether there was a proper basis for invoking the privilege. Prince & Paul v. Don Mitchell's WLAQ, Inc., 127 Ga. App. 502, 194 S.E.2d 269 (1972) (decided under former Code 1933, §§ 38-1102, 38-1205, and 38-1711).

In a civil action the burden was on the reneging defendant to consider each question separately and state the defendant's general reason for any refusal to answer, at which point the trial judge may decide either that the question might be incriminating under certain circumstances (whether or not the defendant had in fact committed any crime) or whether or not the line of questions as a whole, and as a matter of law, might so tend; the discretion of neither was absolute. Tennesco, Inc. v. Berger, 144 Ga. App. 45, 240 S.E.2d 586 (1977) (decided under former Code 1933, §§ 38-1102, 38-1205, and 38-1711).

Trial court did not engage in the required analysis for a witness asserting a Fifth Amendment privilege, but merely declared that answering the questions concerning knowledge of the court's order regarding removing a child from a father's home would not incriminate the witness; at a minimum, such knowledge would establish a link in the chain of evidence needed to prove the witness was in contempt of that order and the trial court's finding of contempt based on the witness's refusal to answer the question was improper. In re Tidwell, 279 Ga. App. 734, 632 S.E.2d 690 (2006) (decided under former O.C.G.A. § 24-9-27).

- There was no blanket right to refuse to answer questions in civil proceedings based on the self-incrimination privilege, and since there was no transcript of the hearing at which the trial court made the court's finding that the privilege was not implicated, the appellate court presumed that evidence supported the trial court's finding and order compelling discovery; further, the trial court's order compelling an employee and the husband to produce financial documents such as checks, account statements, and tax returns in a civil proceeding did not violate the self-incrimination privilege. Dempsey v. Kaminski Jewelry, Inc., 278 Ga. App. 814, 630 S.E.2d 77 (2006) (decided under former O.C.G.A. § 24-9-27).

Requiring suspect to verbalize specified words for identification purposes, whether or not the words used were the same as those allegedly used during the commission of the offense, did not violate an accused's privilege against self-incrimination accorded the accused by the United States Constitution and the state's statutes and constitution. Clark v. State, 166 Ga. App. 366, 304 S.E.2d 494 (1983) (decided under former O.C.G.A. § 24-9-27).

- Trial court did not err by refusing an ex-husband's questions to his former wife seeking to determine whether she engaged in sexual intercourse with her live-in lover on the grounds of self-incrimination in an ex-husband's action to modify alimony payments. Hathcock v. Hathcock, 249 Ga. 74, 287 S.E.2d 19 (1982) (decided under former O.C.G.A. § 24-9-27).

- Ex-wife litigant's refusal to incriminate herself by answering questions about her sexual relations with a live-in lover required the trial court to instruct the jury about the adverse inference the jury might wish to draw from such an answer. The failure to charge the jury left the jury without instructions as to the nature and effect of the legal basis for this adverse inference, and the error was harmful since proof of sexual intercourse between an ex-wife and the third party was the linch-pin of the former husband's case. Hathcock v. Hathcock, 249 Ga. 74, 287 S.E.2d 19 (1982) (decided under former O.C.G.A. § 24-9-27).

- After a female witness was asked if she did not have children and she reluctantly replied in the affirmative and was then asked if she had ever been married, there was no error on the part of the court in instructing the witness that she need not answer the question, nor in ruling out the former answer, on her declining to answer the second question. Gravett v. State, 74 Ga. 191 (1884) (decided under former Code 1882, §§ 3107, 3814, and 3870).

- Party, though introduced as a witness in the party's own behalf, may, upon cross-examination as to matters not voluntarily testified about on direct examination, claim the party's privilege. Bishop v. Bishop, 157 Ga. 408, 121 S.E. 305 (1924) (decided under former Civil Code 1910, §§ 4544, 4554, and 5877).

- When it is plain from the context of the questioning in general that the plaintiff was invoking the Fifth Amendment privilege against self-incrimination it is not necessary to invoke the privilege in express terms. Temple v. Temple, 228 Ga. 73, 184 S.E.2d 183 (1971) (decided under former Code 1933, §§ 38-1102, 38-1205, and 38-1711).

Forfeiture of Estate

Determining the possibility of incrimination.

- When a witness testifies under oath that the witness's answer to any question asked of the witness would incriminate the witness and come within the constitutional immunities guaranteed to the witness, the court can demand no further testimony of the fact. Interstate Life & Accident Ins. Co. v. Wilmont, 123 Ga. App. 337, 180 S.E.2d 913 (1971) (decided under former Code 1933, §§ 38-1102, 38-1205, and 38-1711).

Extensive questioning concerning financial affairs might tend to incriminate a person as a matter of law. In the particular situation of financial affairs, only the defendant or witness can weigh the effect. Busby v. Citizens Bank, 131 Ga. App. 738, 206 S.E.2d 640 (1974) (decided under former Code 1933, §§ 38-1102, 38-1205, and 38-1711).

Privilege did not cover a pledge by the defendant not to reveal information. Tennesco, Inc. v. Berger, 144 Ga. App. 45, 240 S.E.2d 586 (1977) (decided under former Code 1933, §§ 38-1102, 38-1205, and 38-1711).

- Forfeiture of estate objection, if it meant merely that answering would interfere with the defendant's mode of earning a living, was not acceptable. Tennesco, Inc. v. Berger, 144 Ga. App. 45, 240 S.E.2d 586 (1977) (decided under former Code 1933, §§ 38-1102, 38-1205, and 38-1711); In re Manheim, 259 Ga. 791, 387 S.E.2d 330 (1990);(decided under former O.C.G.A. § 24-9-27).

- Former statute did not protect a person from answering financial questions on post-judgment discovery because such answer may tend to work a forfeiture of a person's estate. Any forfeiture would not result from answering the questions or producing documents, but rather as a result of the judgment already entered. First Fed. Sav. & Loan Ass'n v. Fisher, 422 F. Supp. 1 (N.D. Ga. 1976), aff'd, 544 F.2d 902 (5th Cir. 1977) (decided under former Code 1933, §§ 38-1102, 38-1205, and 38-1711); Kushner v. Mascho, 143 Ga. App. 801, 240 S.E.2d 290 (1977);(decided under former Code 1933, §§ 38-1102, 38-1205, and 38-1711).

State Matters

Identity of informants need not be disclosed.

- Ordinarily, one who acts in the capacity of a peace officer or connected therewith will not be required by the courts to disclose the name of their informants concerning a crime for which an accused is being tried. Anderson v. State, 72 Ga. App. 487, 34 S.E.2d 110 (1945) (decided under former Code 1933, §§ 38-1102, 38-1205, and 38-1711); Morgan v. State, 211 Ga. 172, 84 S.E.2d 365 (1954); Thomas v. State, 134 Ga. App. 18, 213 S.E.2d 129 (1975) (decided under former Code 1933, §§ 38-1102, 38-1205, and 38-1711); State v. Keith, 139 Ga. App. 399, 228 S.E.2d 332 (1976); 238 Ga. 157, 231 S.E.2d 727 (1977) (decided under former Code 1933, §§ 38-1102, 38-1205, and 38-1711); State v. Burnett, 249 Ga. App. 334, 548 S.E.2d 443 (2001);aff'd,(decided under former Code 1933, §§ 38-1102, 38-1205, and 38-1711);(decided under former O.C.G.A. § 24-9-27).

Disclosure of an informer's name was not required under former O.C.G.A. § 24-9-27. Childs v. State, 158 Ga. App. 376, 280 S.E.2d 401 (1981) (decided under former Code 1933, §§ 38-1102, 38-1205, and 38-1711).

Trial court did not abuse the court's discretion in denying disclosure of the identity of a confidential informant who may have seen the defendant in the possession of contraband, but who was not present, did not participate in the arrest, and did not take part in the offense. Leonard v. State, 228 Ga. App. 792, 492 S.E.2d 747 (1997) (decided under former O.C.G.A. § 24-9-27).

- When the defendant was seeking the testimony of an eyewitness to the incident which formed the basis of the crimes charged, the witness was not subject to protection as a confidential informer and the defendant did not have the burden of proving the materiality or necessity of the witness's testimony. Swint v. State, 199 Ga. App. 515, 405 S.E.2d 333 (1991) (decided under former O.C.G.A. § 24-9-27).

In a prosecution for possession of cocaine with intent to distribute, the trial court did not err in not revealing the identity of a confidential informant since the informant's testimony was not material to the issue of guilt or punishment as the defendant was not charged with selling cocaine to the informant and the informant was not present during the search and arrest and was neither a participant in nor a witness to the specific offense with which the defendant was charged. Turner v. State, 247 Ga. App. 775, 544 S.E.2d 765 (2001) (decided under former O.C.G.A. § 24-9-27).

- Privilege of not disclosing sources of information in criminal cases is grounded in a sound public policy which recognizes the need for informants in the enforcement of the criminal laws and the further consideration that revelation of the identity of an informer destroys the informer's usefulness for any other cases. Stanford v. State, 134 Ga. App. 61, 213 S.E.2d 519 (1975) (decided under former Code 1933, §§ 38-1102, 38-1205, and 38-1711).

When the possible testimony of an informant would be of minimal significance to a defendant and when the information provided was mere evidence tending to establish a public nuisance, the public policy in favor of nondisclosure of the informant's identify must control. Chancey v. Hancock, 233 Ga. 734, 213 S.E.2d 633 (1975) (decided under former Code 1933, §§ 38-1102, 38-1205, and 38-1711).

- An absolute privilege against disclosure of the identity of every informer who supplied the information upon which an arrest was based was impermissible when a motion was made to disclose information favorable to the defendant. Thornton v. State, 238 Ga. 160, 231 S.E.2d 729, later appeal, 239 Ga. 693, 238 S.E.2d 376 (1977), cert. denied, 434 U.S. 1073, 98 S. Ct. 1260, 55 L. Ed. 2d 778 (1978) (decided under former Code 1933, §§ 38-1102, 38-1205, and 38-1711).

- Disclosure of the name, address, and the other information of an informant was not required as a matter of law, but rested in the discretion of the trial judge, balancing the rights of the defendant and the rights of the state under all the facts and circumstances. Taylor v. State, 136 Ga. App. 31, 220 S.E.2d 49 (1975) (decided under former Code 1933, §§ 38-1102, 38-1205, and 38-1711); State v. Keith, 139 Ga. App. 399, 228 S.E.2d 332 (1976); 238 Ga. 157, 231 S.E.2d 727 (1977), aff'd, Thornton v. State, 238 Ga. 160, 231 S.E.2d 729 (decided under former Code 1933, §§ 38-1102, 38-1205, and 38-1711); 239 Ga. 693, 238 S.E.2d 376 (1977); 434 U.S. 1073, 98 S. Ct. 1260, 55 L. Ed. 2d 778 (1978), later appeal, Hatcher v. State, 154 Ga. App. 770, 270 S.E.2d 16 (1980), cert. denied, Miller v. State, 163 Ga. App. 889, 296 S.E.2d 182 (1982);(decided under former Code 1933, §§ 38-1102, 38-1205, and 38-1711);(decided under former O.C.G.A. § 24-9-27).

- If the state proves to the court's satisfaction that an informer is a pure tipster, who has neither participated in nor witnessed the offense, any evidence the informer might offer would be hearsay and inadmissible. Thus, the tipster's identity could not be material to the guilt or innocence of the defendant or be relevant and helpful to the defense. The public policy of the state toward nondisclosure would not be overcome and the state may rely on the privilege. Thornton v. State, 238 Ga. 160, 231 S.E.2d 729, later appeal, 239 Ga. 693, 238 S.E.2d 376 (1977), cert. denied, 434 U.S. 1073, 98 S. Ct. 1260, 55 L. Ed. 2d 778 (1978) (decided under former Code 1933, §§ 38-1102, 38-1205, and 38-1711).

When the interviewing officer testified that the tipster had no personal knowledge of the crime and was merely repeating the conversation of an unknown person the tipster had overheard at a party, and when the tipster's information was not supportable by any evidence the police were able to uncover, the state was empowered to refuse to identify the tipster on the ground that the tipster's contribution was not material to the defense on the issue of guilt or punishment. Mooney v. State, 243 Ga. 373, 254 S.E.2d 337, cert. denied, 444 U.S. 886, 100 S. Ct. 179, 62 L. Ed. 2d 391 (1979) (decided under former Code 1933, §§ 38-1102, 38-1205, and 38-1711).

Pursuant to former O.C.G.A. §§ 24-9-21 and24-9-27 (see now O.C.G.A. §§ 24-5-501 and24-5-505), the trial court correctly denied the defendant's motion to reveal a confidential informant's identity because the informant was a mere tipster; while the informant saw the victim and the defendant interact prior to entering a wooded area, the informant did not witness the actual rape, the offense forming the basis of the defendant's prosecution, and was not a participant in the attack. Strozier v. State, 314 Ga. App. 432, 724 S.E.2d 446 (2012) (decided under former O.C.G.A. § 24-9-27).

- If the district attorney objects to a question asking whether a "responsible citizen" in an affidavit is a particular person, and states that the lives of the informants had been threatened and requests the court not to require the witness to name them, there is no error in a court's refusing to disclose the name of the person who gave the information. Pass v. State, 227 Ga. 730, 182 S.E.2d 779 (1971) (decided under former Code 1933, §§ 38-1102, 38-1205, and 38-1711).

- When a person merely takes an undercover police officer to a location and identifies, or introduces the officer to the defendant, and the officer arranges for and buys contraband from the defendant, and the person witnesses such sale, or alleged sale, such person is an informant and not a "decoy" and a disclosure of one's name, address, etc., to the defendant is not required as a matter of law but rests in the discretion of the trial judge, balancing the rights of the defendant and the rights of the state under all the facts and circumstances. Bell v. State, 141 Ga. App. 277, 233 S.E.2d 253 (1977) (decided under former Code 1933, §§ 38-1102, 38-1205, and 38-1711); Miller v. State, 141 Ga. App. 382, 233 S.E.2d 460 (1977); Howard v. State, 144 Ga. App. 208, 240 S.E.2d 908 (1977) (decided under former Code 1933, §§ 38-1102, 38-1205, and 38-1711);(decided under former Code 1933, §§ 38-1102, 38-1205, and 38-1711).

- Mere refusal of the state to disclose the identity of an informer does not authorize a trial judge to exercise the judge's discretion as to whether disclosure should be required when the judge hears no evidence as the judge was required to do under Ga. L. 1966, p. 567, § 13 (now O.C.G.A. § 17-5-30(b)). State v. Keith, 139 Ga. App. 399, 228 S.E.2d 332 (1976), aff'd, 238 Ga. 157, 231 S.E.2d 727 (1977) (decided under former Code 1933, §§ 38-1102, 38-1205, and 38-1711).

- See Henderson v. State, 162 Ga. App. 320, 292 S.E.2d 77 (1982) (decided under former O.C.G.A. § 24-9-27).

- See Carter v. State, 168 Ga. App. 6, 308 S.E.2d 30 (1983) (decided under former O.C.G.A. § 24-9-27).

- Trial court does not err in failing to compel the state to disclose an informant's identity in camera at a motion to suppress hearing. Miller v. State, 169 Ga. App. 552, 314 S.E.2d 120 (1984) (decided under former O.C.G.A. § 24-9-27).

OPINIONS OF THE ATTORNEY GENERAL

Editor's notes.

- In light of the similarity of the statutory provisions, opinions under former Code 1933, §§ 38-1102, 38-1205, and 38-1711 are included in the annotations for this Code section.

Georgia Bureau of Investigation is not required to turn its files over to an investigating subcommittee of the United States Senate. 1954-56 Op. Att'y Gen. p. 336 (decided under former Code 1933, §§ 38-1102, 38-1205, and 38-1711).

Criminal Law - Need for Disclosure of identity of Informant, 33 POF2d 549.

- 27 C.J.S., Discovery, §§ 5, 18, 19.

- Right to recover property held by public authorities as evidence for use in a criminal trial, 13 A.L.R. 1168.

Constitutional immunity against giving incriminating testimony as affecting contractual stipulation to submit to examination, 18 A.L.R. 749.

Plea of privilege by the woman concerned in violation of White Slave Act, 48 A.L.R. 991.

Privilege against self-incrimination as applicable to answer to pleadings, 52 A.L.R. 143.

Footprint evidence as violating rule against self-defense, 64 A.L.R. 1089.

Admissibility of secondary evidence of incriminating document in possession of defendant, 67 A.L.R. 77.

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

Constitutional provision against self-incrimination as applicable to questions asked or testimony given in proceeding before nonjudicial officer or body, 68 A.L.R. 1503.

Waiver of immunity from testifying and constitutional provision against self-incrimination, by accomplice testifying for prosecution, 87 A.L.R. 882.

Burden of proof as to outlawry by limitation or otherwise of criminal prosecution when relied upon to defeat claim of privilege against self-incrimination, 101 A.L.R. 389.

Constitutionality, construction, and effect of statutes in relation to conduct of driver of automobile after happening of accident, 101 A.L.R. 911.

Right as against objection of one other than voter himself to consider testimony as to how he voted given by him after his claim of privilege had been erroneously overruled, 113 A.L.R. 1228.

Privilege against self-incrimination as justification for refusal to comply with order or subpoena requiring production of books or documents of private corporation, 120 A.L.R. 1102.

Disclosure by witness of fact or transaction as waiver of his privilege against self-incrimination in respect of details and particulars which will elucidate it, 147 A.L.R. 255.

Privilege against self-incrimination as available to member or officer of unincorporated association as regards its books or papers, 152 A.L.R. 1208.

Testimony of incriminating character which witness as compelled to give, by virtue of immunity statute or otherwise, as admissible in a prosecution of the witness for an offense subsequently committed, 157 A.L.R. 428.

Use in subsequent prosecution of self-incriminating testimony given without invoking privilege, 5 A.L.R.2d 1404.

Power of prosecuting attorney to extend immunity from prosecution to witness claiming privilege against self-incrimination, 13 A.L.R.2d 1438.

Right of witness to refuse to answer, on the ground of self-incrimination, as to membership in or connection with party, society, or similar organization or group, 19 A.L.R.2d 388.

Inferences arising from refusal of witness other than accused to answer question on the ground that answer would tend to incriminate him, 24 A.L.R.2d 895.

Right of witness to claim privilege against self-incrimination on subsequent criminal trial after testifying to same matter before grand jury, 36 A.L.R.2d 1403.

Sufficiency of witness's claim of privilege against self-incrimination, 51 A.L.R.2d 1178.

Adequacy of immunity offered as condition of denial of privilege against self-incrimination, 53 A.L.R.2d 1030, 29 A.L.R.5th 1.

Right of state in criminal contempt case to obtain data from defendant by interrogatories or pretrial discovery as permitted in civil actions, 72 A.L.R.2d 431.

Testifying in civil proceeding as waiver of privilege against self-incrimination, 72 A.L.R.2d 830.

Pretrial discovery to secure opposing party's private reports or records as to previous accidents or incidents involving the same place or premises, 74 A.L.R.2d 876.

Accused's right to, and prosecution's privilege against, disclosure of identity of informer, 76 A.L.R.2d 262.

Admissibility of confession, admission, or incriminatory statement of accused as affected by fact that it was made after indictment and in the absence of counsel, 90 A.L.R.2d 732.

Comment on accused's failure to testify, by counsel for codefendant, 1 A.L.R.3d 989.

Dismissing action or striking testimony where party to civil action asserts privilege against self-incrimination as to pertinent question, 4 A.L.R.3d 545.

Requiring suspect or defendant in criminal case to demonstrate voice for purposes of identification, 24 A.L.R.3d 1261.

Propriety of cross-examining witness as to illicit relations with defendant in criminal case, 25 A.L.R.3d 537.

Propriety and prejudicial effect of comment by counsel as to refusal to permit introduction of privileged testimony, 32 A.L.R.3d 906.

Propriety of requiring accused to give handwriting exemplar, 43 A.L.R.3d 653.

Witness's refusal to testify on ground of self-incrimination as justifying reception of evidence of prior statements or admissions, 43 A.L.R.3d 1413.

Refusal to answer questions before state grand jury as direct contempt of court, 69 A.L.R.3d 501.

Privilege of witness to refuse to give answers tending to disgrace or degrade him or his family, 88 A.L.R.3d 304.

Propriety of requiring criminal defendant to exhibit self, or perform physical act, or participate in demonstration, during trial and in presence of jury, 3 A.L.R.4th 374.

Propriety and prejudicial effect of prosecution's calling as witness, to extract claim of self-incrimination privilege, one involved in offense charged against accused, 19 A.L.R.4th 368.