2021 Georgia Code
Title 17 - Criminal Procedure
Chapter 16 - Discovery
Article 1 - Definitions; Felony Cases
§ 17-16-2. Applicability of Article

1. This article shall apply to all criminal cases in which at least one felony offense is charged in the event that at or prior to arraignment, or at such time as the court permits, the defendant provides written notice to the prosecuting attorney that such defendant elects to have this article apply to the defendant's case. When one defendant in a multidefendant case demands discovery under this article, the provisions of this article shall apply to all defendants in the case, unless a severance is granted.
2. Except as provided in subsection (c) of this Code section, this article shall not apply to juvenile court proceedings.
3. This article shall be deemed to have been automatically invoked, without the written notice provided for in subsection (a) of this Code section, when a defendant has sought discovery pursuant to Chapter 11 of Title 9, the "Georgia Civil Practice Act," pursuant to Part 8 of Article 6 of Chapter 11 of Title 15, or pursuant to the Uniform Rules for the Juvenile Courts of Georgia where such discovery material is the same as the discovery material that may be provided under this article when a written notice is filed pursuant to subsection (a) of this Code section.
4. Except as provided under Code Section 17-16-8, this article is not intended to authorize discovery or inspection of attorney work product.
5. This article shall apply also to all criminal cases in which at least one felony offense is charged which was docketed, indicted, or in which an accusation was returned prior to January 1, 1995, if both the prosecuting attorney and the defendant agree in writing that the provisions of this article shall apply to the case.
6. Except as provided in paragraph (3) of subsection (b) of Code Section 17-16-4, if a defendant has elected to have the provisions of this article apply, the provisions of this article shall also apply to sentencing hearings and the sentencing phase of a death penalty trial.

(Code 1981, §17-16-2, enacted by Ga. L. 1994, p. 1895, § 4; Ga. L. 1995, p. 1250, § 2; Ga. L. 2005, p. 20, § 12/HB 170; Ga. L. 2005, p. 474, § 1/HB 222; Ga. L. 2013, p. 294, § 4-21/HB 242.)

- Pursuant to Code Section 28-9-5, in 2005, subsection (e) as enacted by Ga. L. 2005, p. 20, § 12, was redesignated as subsection (f).

- Ga. L. 2005, p. 20, § 1/HB 170, not codified by the General Assembly, provides that: "This Act shall be known and may be cited as the 'Criminal Justice Act of 2005.'"

Ga. L. 2005, p. 20, § 17/HB 170, not codified by the General Assembly, provides that the first 2005 amendment applies to all trials which commence on or after July 1, 2005.

Ga. L. 2013, p. 294, § 5-1/HB 242, not codified by the General Assembly, provides that: "This Act shall become effective on January 1, 2014, and shall apply to all offenses which occur and juvenile proceedings commenced on and after such date. Any offense occurring before January 1, 2014, shall be governed by the statute in effect at the time of such offense and shall be considered a prior adjudication for the purpose of imposing a disposition that provides for a different penalty for subsequent adjudications, of whatever class, pursuant to this Act. The enactment of this Act shall not affect any prosecutions for acts occurring before January 1, 2014, and shall not act as an abatement of any such prosecutions."

- For note and comment, "Hope for the Best and Prepare for the Worst: The Capital Defender's Guide to Reciprocal Discovery in the Sentencing Phase of Georgia Death Penalty Trials," see 23 Ga. St. U.L. Rev. 995 (2007).

JUDICIAL DECISIONS

Construction with

§ 17-16-4(a). - If a defendant fails to provide written notice to the prosecuting attorney that the defendant elects to have subsection (a) of O.C.G.A. § 17-6-2 apply to the defendant's case, the discovery disclosure provisions of O.C.G.A. § 17-16-4(a) do not apply. Miller v. State, 235 Ga. App. 724, 510 S.E.2d 560 (1999), appeal dismissed, 264 Ga. App. 801, 592 S.E.2d 450 (2003); Hammett v. State, 246 Ga. App. 287, 539 S.E.2d 193 (2000).

Construction with § 17-16-6. - If the defendant made no showing that the state improperly withheld evidence from the defendant or acted in bad faith so as to trigger the imposition of any of the sanctions authorized by O.C.G.A. § 17-16-6, the defendant failed to sustain the defendant's appellate burden of establishing how the defendant was harmed by the trial court's ruling regarding the defendant's failure to properly provide written notice to the prosecution under O.C.G.A. § 17-16-2(a). Miller v. State, 235 Ga. App. 724, 510 S.E.2d 560 (1999), appeal dismissed, 264 Ga. App. 801, 592 S.E.2d 450 (2003).

- Trial court properly denied the defendant's motion for a continuance under the reciprocal discovery statute; the state learned of a new witness with a criminal history only three days before trial, defense counsel's daughter who was assisting defense counsel in court was available to interview the witness, the trial court stated that the defendant would have an opportunity to interview the witness, and the defendant did not show prejudice from the commencement of trial on the day in question. Dunagan v. State, 286 Ga. App. 668, 649 S.E.2d 765 (2007), reversed on other grounds, 283 Ga. 501, 661 S.E.2d 525 (2008).

Discovery in presentence hearings in both capital or noncapital cases is governed by O.C.G.A. § 17-10-2 and the Criminal Procedure Discovery Act, O.C.G.A. § 17-16-1 et seq., does not apply. State v. Lucious, 271 Ga. 361, 518 S.E.2d 677 (1999).

- Trial court did not err in denying the defendant's motion for a new trial based on the defendant's trial counsel failing to object to the state failing to provide notice of the state's intent to use a prior conviction in aggravation of sentencing because the defendant could not show that the outcome of sentencing would have been different. Soler v. State, 354 Ga. App. 93, 840 S.E.2d 169 (2020).

- 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).

- State's use of a witness that was not on the list provided to the defendant did not violate O.C.G.A. § 17-16-3; there was nothing in the record to show that the defendant gave the state a written discovery request pursuant to O.C.G.A. § 17-16-2 or made a written demand for a list of witnesses, and the witness was offered to rebut an assertion that the defendant made while testifying in the defendant's own defense; moreover, the trial court gave the defendant time to interview the witness and limited the scope of questioning. Rayo-Leon v. State, 281 Ga. App. 74, 635 S.E.2d 368 (2006).

- Defendant who chose not to participate in the Criminal Procedure Discovery Act, O.C.G.A. § 17-16-1 et seq., was not entitled to discover all of the state's scientific reports, the state's scientific work product, or the witness list provided by Uniform Superior Court Rule 30.3. State v. Lucious, 271 Ga. 361, 518 S.E.2d 677 (1999).

Court of Appeals rejected the defendant's claimed discovery violation as the defendant could not complain that discovery materials were not made available to counsel before trial as the defendant failed to show an election to proceed under the reciprocal discovery statute and could not show what materials were withheld, or how the availability of the materials might have changed the outcome of the trial. Hall v. State, 282 Ga. App. 562, 639 S.E.2d 341 (2006).

Trial court did not err in denying the defendant's motion for continuance to gather more data or obtain an expert's opinion regarding DNA evidence, because the defendant had not opted in to reciprocal discovery under O.C.G.A. § 17-16-2, and thus, was not entitled to additional documents, nor the delay to obtain them. Simmons v. State, 291 Ga. 705, 733 S.E.2d 280 (2012).

- O.C.G.A. § 17-16-2(a) requires a defendant to provide written notice to the prosecuting attorney that such defendant elects to have the Criminal Procedure Discovery Act, O.C.G.A. § 17-16-1 et seq., apply to the defendant's case. Although the state waited until the first day of trial to have the marijuana tested, in the absence of proof that the state's last-minute test of the suspected marijuana was designed to circumvent the discovery process, the defendant's conviction for marijuana possession stands. Davis v. State, 232 Ga. App. 320, 501 S.E.2d 836 (1998).

- With regard to the defendant's domestic violence convictions, the trial court did not err in denying the admission into evidence of a photograph detailing the defendant's injuries based on failing to provide inspection of the photograph because any error by the trial court in excluding the photograph was harmless since the photograph was cumulative of both the defendant's testimony that the wife scratched the defendant as well as the wife's testimony that the wife tried to scratch the defendant. Palmer v. State, 330 Ga. App. 679, 769 S.E.2d 107 (2015).

Having chosen not to provide the written notice required, a defendant was not entitled to have the other provisions of the reciprocal discovery process applied to the defendant's case. Brown v. State, 274 Ga. 202, 552 S.E.2d 812 (2001).

- In the absence of bad faith on the part of the state as well as prejudice to the defendant, the trial court erred in excluding from evidence a videotape and photographs of child pornographic images taken from the defendant's computer as a sanction for the state's failure to comply with a court-ordered discovery deadline. State v. Jones, 283 Ga. App. 539, 642 S.E.2d 183 (2007).

Cited in Morgan v. State, 226 Ga. App. 624, 487 S.E.2d 420 (1997); Wright v. State, 226 Ga. App. 848, 487 S.E.2d 405 (1997); Johnson v. State, 272 Ga. 468, 532 S.E.2d 377 (2000); Bazemore v. State, 244 Ga. App. 460, 535 S.E.2d 830 (2000); Cockrell v. State, 281 Ga. 536, 640 S.E.2d 262 (2007); Stinski v. State, 281 Ga. 783, 642 S.E.2d 1 (2007); Grayer v. State, 282 Ga. 224, 647 S.E.2d 264 (2007); Fyfe v. State, 305 Ga. App. 322, 699 S.E.2d 546 (2010); State v. Thompson, 334 Ga. App. 692, 780 S.E.2d 67 (2015).