2021 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.)
Cross references.- Prohibition against compelled self-incrimination, Ga. Const. 1983, Art. I, Sec. I, Para. XVI.
Testimony of accused in criminal case, § 24-5-506.
Editor's notes.- 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.
Law reviews.- 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).
JUDICIAL DECISIONSANALYSIS
- General Consideration
- Defendant's Right to Present Evidence
- Evidence of Bad Character and Prior Convictions
- Prosecutorial Comment on Failure to Testify
RESEARCH REFERENCES
Am. Jur. 2d.
- 21 Am. Jur. 2d, Criminal Law, § 554.
C.J.S.- 23 C.J.S., Criminal Procedure and Rights of the Accused, §§ 848 et seq., 990 et seq.
ALR.
- 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.
