Georgia Criminal Law Blog

Click here to read an article on Felony discovery in Georgia.  There are many times that is advantageous not to “opt in.”  This article was written by me and published in the Cobb County Bar Association newsletter.

Practice Pointers

Criminal Discovery in Felony Cases

By: Robert D. Leonard II
O.C.G.A. § 17-16-1 et. seq. are the statutes most often used, but probably the least often read by the criminal defense practitioner.  This article is intended to be an overview that will serve as a primer for the new lawyer and a refresher for those that are more experienced.
An overview of the statutes:

O.C.G.A. § 17-16-1 – Definitions – the most important definition contained here is the definition of “Possession, custody or control of the State or prosecution.”  It means an item within the possession, custody or control of the prosecuting attorney, or any law enforcement agency involved in the investigation of the case being prosecuted.  This means that even if the DA does not have one of the items listed below, he/she must affirmatively check the police file as well to comply with the statutes below.
O.C.G.A. § 17-16-2 – If defendant elects to “opt in” to the reciprocal discovery statutes, he must do so in writing.
Beware that the following language in O.C.G.A. § 17-16-2 just passed in HB 170 and was signed in to law:
Said title is further amended by adding a new subsection (e) to Code Section 17-16-2, relating to applicability of discovery in criminal cases, to read as follows:
(e) 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.
O.C.G.A. § 17-16-3 – Regardless of whether you “opt in,” every person charged with a crime shall be furnished a copy of the indictment and witness list, prior to arraignment.
O.C.G.A. § 17-16-4 – Statements - The DA shall furnish any statement made by the defendant to any law enforcement officer or DA.  It does not matter whether the defendant was in custody or not when the statement was made.  The defendant can also get the statements made by co-conspirators that are attributable to him.  These statements need not be written, they must also disclose the nature of any oral statement if they plan to use it at trial.  Criminal Histories – The prosecutor shall furnish the defendant with a copy of his GCIC, if it is in the possession of the District Attorney.  Open Files – The DA shall permit the defendant to inspect and copy/photograph documents and physical evidence that the State intends to introduce in its case-in-chief or rebuttal.  Forensic Stuff – The Defendant may examine and test any evidence held at the GBI Crime Lab or other lab.  Physical, Mental & Scientific tests – The defendant is entitled to inspect and copy any report from physical, mental and scientific tests.  This includes a summary of the basis of the expert opinion in the report, if the State intends to use the information in their case-in-chief or rebuttal.  If the report is oral or partially oral, the prosecutor shall reduce it to writing and provide it to the defense.  But see Garey v. State, 273 Ga. 133 (2000).[1]  However, the defense does not get the psychiatric treatment of any witness or victim.  It’s called reciprocal discovery for a reason – if you request these items, you must also provide these same items if you are going to use them in your case-in chief or rebuttal.  Continuing Duty to Disclose – both the prosecution and defense have a continuing duty to provide this information as it becomes available.  When – the prosecution is required to provide this information not later than 10 days prior to trial.  The defense is required to provide it within 10 days of the prosecutor’s timely compliance, but not later than 5 days prior to trial.
Beware that the following language in O.C.G.A. 17-16-4 just passed in HB 170 and was signed it to law:
Said title is further amended in Code Section 17-16-4, relating to discovery disclosure required by the prosecuting attorney and defendant, by adding a new paragraph (5) at the end of subsection (a) and a new paragraph (3) at the end of subsection (b) to read as follows:
(5) The prosecuting attorney shall, no later than ten days prior to trial, or at such time as the court orders but in no event later than the beginning of the trial, provide the defendant with notice of any evidence in aggravation of punishment that the state intends to introduce in sentencing.
(3)(A) The defendant shall, no later than the announcement of the verdict of the jury or if the defendant has waived a jury trial at the time the verdict is published by the court, serve upon the prosecuting attorney all books, papers, documents, photographs, tangible objects, audio and visual tapes, films and recordings, or copies or portions thereof and to inspect and photograph buildings or places which are within the possession, custody, or control of the defendant and which the defendant intends to introduce as evidence in the presentence hearing.
(B) The defendant shall, no later than the announcement of the verdict of the jury or if the defendant has waived a jury trial at the time the verdict is published by the court, serve upon the prosecuting attorney all reports of any physical or mental examinations and scientific tests or experiments, including a summary of the basis for the expert opinions rendered in the reports, or copies thereof, if the defendant intends to introduce in evidence in the presentence hearing the results of the physical or mental examination or scientific test or experiment. If the report is oral or partially oral, the defendant shall reduce all relevant and material oral portions of such report to writing and shall serve opposing counsel with such portions.
(C) The defendant shall, no later than five days before the trial commences, serve upon the prosecuting attorney a list of witnesses that the defendant intends to call as a witness in the presentence hearing. No later than the announcement of the verdict of the jury or if the defendant has waived a jury trial at the time the verdict is published by the court, the defendant shall produce for the opposing party any statement of such witnesses that is in the possession, custody, or control of the defendants or the defendant́s counsel that relates to the subject matter of the testimony of such witnesses unless such statement is protected from disclosure by the privilege contained in paragraph (5), (6), (7), or (8) of Code Section 24-9-21.
O.C.G.A. § 17-16-5 – Alibi - if the DA requests it, the defense must notify the DA of its intent to use an alibi defense.  This notice must include the place that the Defendant claims to have been at the time of the offense, a list of witnesses, including their names, addresses, dates of birth and telephone numbers, if known.  In turn, the DA must disclose the same information of any witnesses that rebut the claim of alibi offered by the defendant.  This information must be furnished to the prosecutor within 10 days of the prosecutors demand or 10 days prior to trial, whichever is later.  The prosecutor must give his rebuttal witnesses 5 days after the defendant’s notice or 5 days prior to trial, whichever is later.
O.C.G.A. § 17-16-6 – Failure to comply – the court can order compliance or grant a continuance if either side fails to comply in good faith.  If prejudice and bad faith can be shown, the evidence may be suppressed.
O.C.G.A. § 17-16-7 – Statements of Witnesses – both sides must produce statements of any witnesses that it intends to call at trial or in an evidentiary hearing.  This must be done 10 days prior to trial or at the time of the evidentiary hearing.  Oral statements of witnesses need not be produced, unless recorded or committed to writing.  Notes of a witness statement made by counsel need not be produced.
O.C.G.A.§ 17-16-8 – Witness Lists – both sides should furnish to the other side, as an officer of the court and in confidence, the names, current locations, dates of birth and telephone numbers for their witnesses.  This should be done not later than 10 days prior to trial by the prosecutor and 5 days prior to trial by the defense.[2]
O.C.G.A. § 17-16-9 – Reimbursement for Costs – While probably in violation of Article I, Section I, Paragraph XXIV of the Georgia Constitution, it provides that the party providing the material may be reimbursed for the actual costs incurred in complying with the Code section.
O.C.G.A. § 17-16-10 – No need to provide material already furnished by the other side – Either party need not provide materials covered in these code sections where that same material has already been provided by the opposing party.  In other words, if you intend to call a person that the State listed on their witness list, there is no need to add that person to your list.

If the defendant elects not to “opt in” to the reciprocal discovery statute, the case is covered by O.C.G.A. § 17-16-20 et. seq. which is not discussed in this article.  There are many circumstances in which it may be to your client’s advantage not to “opt in.”  Counsel should think about the evidence he/she has and whether or not it would be required to be turned over to the State if you “opt in.”  You may still get many of the items that you would have gotten under the statutory reciprocal discovery by filing various motions.  Some of which are discussed below.

Another advantage to not “opting in” is that you may get a severance motion granted on a multi-defendant case.  O.C.G.A. § 17-16-2(a) states that when one co-defendant elects to “opt in” then the provisions of the reciprocal discovery act apply to all defendants in the case, unless a severance is granted.  Be prepared to make an ex parte showing of prejudice to the court.
Some important law that you need to be aware of whether you opt in or not:

Brady v. Maryland , 373 U.S. 83 (1963).  The U.S. Supreme Court held that the prosecution has a constitutional duty to disclose certain information to the defense.  It is a violation of the Due Process clause of the Fourteenth Amendment to fail to disclose information that had been requested if that information would tend to exculpate him OR reduce the penalty.
Kyles v. Whitley, 514 U.S. 419 (1995).  Discussing Brady material, the Court held that an individual prosecutor has a duty to learn of any favorable evidence known to others acting on the government’s behalf in the case, including the police.  The prosecutor remains responsible regardless of any failure by the police to bring favorable evidence to the prosecutor’s attention.
Wells v. State, 237 Ga.App. 109 (1999).  The Georgia Supreme Court held that to establish a Brady violation the defendant must show 6 things.  (1) The State possessed evidence favorable to the defense; (2) the defendant did not possess it and could not have obtained it with any reasonable effort; (3) the prosecution suppressed the favorable evidence; (4) that had the evidence been disclosed to the defense, a reasonable probability exists that the outcome of the proceedings would have been different; (5) access to the evidence was denied to the defendant; and (6) that the disclosure would have benefited the defense by providing evidence for the defense or impeaching prior inconsistent statements.[3]
Tribble v. State, 248 Ga. 274 (1981).  The Georgia Supreme Court held that the trial court is not required to conduct an in camera inspection of the State’s file unless such motion was filed after the State responded to the defense’s Brady motion.  It is error to refuse to examine the State’s file upon timely motion, but that error is not reversible where it may be cured by post-trial examination.  See McNeal v. State, 263 Ga. 397 (1993).
Giglio v. United States , 405 U.S. 150 (1972).  The U.S. Supreme Court held that a defendant is entitled to discover promises of leniency or promises of non-prosecution of a key government witness if a proper motion is filed requesting that information.  See also, Klinect v. State, 269 Ga. 570 (1998).
Livingston v. State, 264 Ga. 402 (1994). Defendant’s right to disclosure prior to trial of all “evidence in aggravation” that the state intends to rely upon regarding imposition of sentence at a pre-sentence hearing, including victim impact evidence under O.C.G.A § 17-10-1.2
Sabel v. State, 248 Ga. 10 (1981).  Defendant’s right to independent examination of critical evidence.
Wall v. State, 296 Ga. 506 (1998).  Defendant’s right to notice of state’s intent to introduce evidence of similar transactions, not involving “prior difficulties” between the defendant and victim.  See also U.S.C.R. 31.3.
Georgia Constitution Art. 1, §1, Para . 14 – Defendant’s constitutional right to copy of accusation/indictment and list of witnesses.
U.S.C.R. Rule 30.3 – Defendant’s right to list of witnesses, including addresses and telephone numbers.
O.C.G.A. § 35-3-34 – Defendant’s right to criminal records of witnesses and defendant from GCIC.
O.C.G.A. § 24-7-7 – Either party’s right to examine known handwriting samples intended to be introduced for comparison purposes.
Roviaro v. United States , 353 U.S. 53 (1957). – Defendant’s right to disclosure of informants in certain circumstances.  See also Wilson v State, 209 Ga.App. 436 (1993).
O.C.G.A. § 17-4-20.1(d) – Defendant’s right to review and copy reports of an act of “family violence.”
O.C.G.A. § 24-10-26 – Defendant’s right to require the prosecution to make available relevant documentary or physical evidence at a court proceeding by way of notice to produce.  See also Brown v. State, 238 Ga. 98 (1976).
O.C.G.A. § 24-10-22 – Either party’s right to require third parties to produce relevant documentary or physical evidence at a court proceeding.
O.C.G.A. § 50-18-70 – Georgia Open Records Act.
Marshall v. State, 230 Ga.App. 116 (1998). – This is a great case that discusses bad faith and prejudice to the client when the prosecutor did not disclose a defendant’s oral statement made to a detention officer that was called as a witness.  The DA just found out about the statement shortly before the witness testified.  The Court found bad faith because the State has an obligation to disclose evidence in the possession of the police.  It is also a good case to cite on “theory of the defense prejudice.”

Practice tips when a violation of the discovery statute occurs

You need to show “bad faith” on the part of the prosecutor and “prejudice” to your client.
ALWAYS at least move for a continuance for a state violation of the discovery statute.
Move for the exclusion of the evidence that is the subject of the violation.
If the court denies the above, ALWAYS make a proffer to the court specifically detailing the prejudice that the discovery violation has caused the client and your case.  Get creative with your prejudice arguments.  Examples — trial strategy, examination of evidence by an expert, theory of defense, fair opportunity to investigate, and developing other evidence to impeach with etc…
At the close of evidence, renew your objection to the material, again state your grounds and allege prejudice.
At the conclusion of trial, ask the jurors if they considered that material that was introduced over your objection and if it was a major factor in their verdict.  If so, ask the Judge to set aside the verdict and give a new trial because you can show a likelihood that the outcome would have been different if the evidence was excluded.
Many times a violation of the discovery statute may also be a Brady violation.  When making your motions and arguments allege the bad faith and prejudice requirements to establish the statutory violation and also allege the factors listed above in the Wells v. State case to establish the Brady violation.

I hope this material has been useful.  If you have any questions, comments or suggestions, please don’t hesitate to call me at 678-354-2290.
Rob Leonard practices criminal defense in Marietta and currently serves as the President of the Criminal Defense Section of the Cobb Bar.

 

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[1] The ruling in Garey was decided under different statutory language.  When Garey was decided, the statute did not have the language about reducing the oral report to writing.   The statute was amended in May 14, 2003 to include that language.  If the State cites Garey, make sure you argue that it is no longer good law and was overturned by statutory amendment.  This is not discussed in the 2004 edition of the Daniels/Goger book and there are no warnings on Lexis as of the date of this article.

[2] It’s probably not a good idea to provide this information to your client.  It is intended for the lawyer’s use in interviewing the witnesses.

[3] In light of this significant hurdle, many Brady violations will be viewed as harmless error.  Ethical prosecutors will disclose this evidence when they know about it.  Many times, the DA simply didn’t follow through with their duty to learn of the favorable evidence, because it may be in the custody of some other law enforcement agency.  Cobb lawyers are lucky to practice in a Circuit where this is not a big problem.