2021 Georgia Code
Title 24 - Evidence
Chapter 4 - Relevant Evidence and Its Limits
§ 24-4-405. Methods of Proving Character

1. In all proceedings in which evidence of character or a trait of character of a person is admissible, proof shall be made by testimony as to reputation or by testimony in the form of an opinion.
2. In proceedings in which character or a trait of character of a person is an essential element of a charge, claim, or defense or when an accused testifies to his or her own character, proof may also be made of specific instances of that person's conduct. The character of the accused, including specific instances of the accused's conduct, shall also be admissible in a presentencing hearing subject to the provisions of Code Section 17-10-2.
3. On cross-examination, inquiry shall be allowable into relevant specific instances of conduct.

(Code 1981, §24-4-405, enacted by Ga. L. 2011, p. 99, § 2/HB 24.)

- Methods of proving character, Fed. R. Evid. 405.

- In light of the reenactment of this Title, effective January 1, 2013, the reader is advised to consult the annotations following Code Section 24-4-404, for cases discussing character and specific instances of previous conduct; Code Section 24-4-412, for cases discussing the complainant's character in sexual assault cases; Code Section 24-4-413, for cases discussing sexual assault; Code Section 24-4-414, for cases discussing child molestation; and Code Section 24-4-417, for cases discussing driving under the influence.

- For annual survey on evidence, see 65 Mercer L. Rev. 125 (2013).

JUDICIAL DECISIONS

Good character conduct evidence in child molestation trial.

- In a child molestation case, the appellate court could not reach the merits of the defendant's claim regarding the exclusion of specific instances of conduct testimony from character witnesses for the defense because the affidavits from three of the character witnesses who testified at trial failed to identify any specific instance of the defendant's conduct that the witnesses were unable to testify to; furthermore, the defendant was able to present a variety of evidence regarding the defendant's good character, including specific instances of conduct. Goggins v. State, 330 Ga. App. 350, 767 S.E.2d 753 (2014).

- In a child molestation case, the trial court did not restrict the defendant's character witnesses' ability to testify as to the defendant's character trait of moral behavior and trustworthiness with children as three witnesses testified as to that character trait, and any additional testimony regarding the defendant's morality and trustworthiness with children would have been cumulative. Goggins v. State, 330 Ga. App. 350, 767 S.E.2d 753 (2014).

- Trial court did not abuse the court's discretion in finding that the defense intentionally placed the defendant's general character in issue and triggered the state's right to cross-examine a character witness about the defendant's criminal history as although defense counsel may not have specifically aimed at eliciting character testimony, the door was opened when defense counsel did not object or move to strike the testimony that the defendant was a man of integrity as nonresponsive, and, in fact, presented 11 character witnesses. Montgomery v. State, 350 Ga. App. 244, 828 S.E.2d 620 (2019).

- Trial court did not commit plain error in the court's charge to the jury on good character evidence because the defendant used the idea that the defendant did not have a reputation for violence as a means of attempting to show the defendant's good character, and the trial court merely reflected that in the court's charge to the jury; and the jury was properly left to determine whether the defendant would have acted consistently with the defendant's purported character with respect to violence, which was to not act violently towards anyone, including the victim; further, giving that proper charge did not amount to the trial court commenting on the evidence. Jacobs v. State, 303 Ga. 245, 811 S.E.2d 372 (2018).

Plain error did not occur given that character instruction given by the trial court fully and adequately explained to the jury how the jury ought to consider the defendant's character trait of truthfulness; thus, the defendant failed to show that simply adding a reference to the defendants general character would have likely affected the outcome of the trial court proceedings. Montgomery v. State, 350 Ga. App. 244, 828 S.E.2d 620 (2019).

- Trial court erred in allowing the state to introduce evidence in its case in chief of threatening posts the defendant had made on Facebook as evidence of the defendant's allegedly violent character and behavior in conformity therewith because O.C.G.A. § 24-4-405 required such proof be made by testimony as to reputation or in the form of an opinion; however, the error was harmless. Timmons v. State, 302 Ga. 464, 807 S.E.2d 363 (2017).

- There is no reason to construe the rules regarding the admission of character evidence as a modification of Georgia's long-standing requirement that a defendant must first make a prima facie showing of self-defense before requiring a trial court to determine whether evidence pertaining to the victim's character is admissible. Oliver v. State, 329 Ga. App. 377, 765 S.E.2d 606 (2014).

- Trial court did not err by barring evidence that the victim was involved in an altercation with a third party on the evening before the killing because there was no evidence to support a claim of self-defense and, thus, the alleged earlier incident involving the victim and a third person was irrelevant to any issue presented at trial. White v. State, 307 Ga. 882, 838 S.E.2d 828 (2020).

- Even if the first defendant's counsel performed deficiently by failing to obtain the victim's criminal history, which the first defendant alleged would have shown the existence of a prior incident of domestic violence in Alabama and the victim's propensity for violence, the first defendant failed to show prejudice because it was not clear that any such specific incident of violence would have been admissible at the first defendant's trial as the first defendant's case was tried after the enactment of Georgia's new Evidence Code; and because, at the motion for new trial hearing, the first defendant did not present any witnesses to authenticate the Alabama domestic violence police report. Ballard v. State, 297 Ga. 248, 773 S.E.2d 254 (2015).

- Because the defendant failed to make a prima facie showing that the defendant acted in self-defense and evidence of the victim's propensity for violence could not be introduced, the defendant could not satisfy the requirement of demonstrating a pertinent trait of character of the alleged victim of the crime, and there was no need to address the defendant's contention that the court incorrectly applied the rule regarding the methods of proving character. Oliver v. State, 329 Ga. App. 377, 765 S.E.2d 606 (2014).

- Even if any of the victim's alleged prior crimes involved specific acts of violence, because the defendant never introduced into evidence at the motion for new trial hearing any of the victim's alleged prior convictions, the defendant could not support the defendant's claim that the defendant's counsel could have been ineffective for failing to attempt to introduce such evidence at trial. Revere v. State, 302 Ga. 44, 805 S.E.2d 69 (2017).

Counsel was not ineffective for failing to present evidence that the first victim had a criminal history and was a gang member as the defendant did not come forward with any evidence that the first victim was ever in a gang; the defendant did not show that any of the first victim's prior convictions would have been admissible; and the first victim's prior convictions would not have been admissible to show the defendant's state of mind or the reasonableness of the defendant's conduct as the defendant was not aware of those convictions at the time of the shootings. Wofford v. State, 305 Ga. 694, 827 S.E.2d 652 (2019).

- Assuming without deciding that the defendant's inquiry into the victim's character would have been permitted, it was not an abuse of discretion to disallow the inquiry since the trial court had already afforded the defendant wide latitude to cross-examine a witness by asking the witness about the details of the two armed robbery charges that had been brought against the victim. Griffin v. State, 309 Ga. 860, 849 S.E.2d 191 (2020).

- Trial court did not err in limiting the scope of evidence regarding the defendant's good character as the additional testimony the defendant sought to have introduced would have been cumulative. Goggins v. State, 330 Ga. App. 350, 767 S.E.2d 753 (2014).

- Trial court committed reversible error by admitting character evidence and holding that the evidence was intrinsic to the alleged crimes of robbery as the defendant did not testify as to character and the character trait was not an essential element of a charge, claim, or defense; the text introduced a specific bad act, possible fraud, which was not allowed and the fact that the defendant may have attempted to defraud an apartment complex a week earlier did not arise out of the same transaction. Holt v. State, 352 Ga. App. 504, 835 S.E.2d 336 (2019).

- Trial counsel performed deficiently as counsel should have objected to the inadmissible statements of three witness that improperly placed the victim's good character in issue, but counsel's deficient performance was not prejudicial because, considering the totality of the evidence, there was no reasonable probability that, had trial counsel objected to that testimony, the outcome in the defendant's case would have been different. Revere v. State, 302 Ga. 44, 805 S.E.2d 69 (2017).

- Appellant's convictions for felony murder, aggravated assault, and knife-possession offenses were reversed because the Georgia Supreme Court could not say that the trial court's erroneous admission of the voluminous evidence that the appellant had previously committed multiple serious violent acts did not contribute to the guilty verdicts that the jury returned. Strong v. State, 309 Ga. 295, 845 S.E.2d 653 (2020).

- In a case in which the defendant was convicted of malice murder arising out of the beating death of a child, any error by the trial court in limiting the witnesses' testimony about whether the defendant was good around children or about specific instances of good character was harmless because the jury heard testimony from seven character witnesses, and most of them testified to numerous specific examples of the defendant's conduct with children, including the deceased child and the child's brother as well as the witnesses' own children or grandchildren; the evidence presented by the witnesses on the defendant's motion for new trial was largely cumulative of their trial testimony; and the evidence of the defendant's guilt was very strong. Truett v. State, Ga. , S.E.2d (Apr. 19, 2021).

Cited in Gibson v. State, 300 Ga. 494, 796 S.E.2d 712 (2017).

RESEARCH REFERENCES

ALR.

- Admissibility of expert or opinion evidence of battered-woman syndrome on issue of self-defense, 58 A.L.R.5th 749.