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05 LC 28 2093-EC

House Bill 170

By: Representatives Golick of the 34th, Roberts of the 154th, Ralston of the 7th, Mumford of the 95th, Miller of the 106th, and others

A BILL TO BE ENTITLED
AN ACT

To enact the "Criminal Justice Act of 2005" so as to substantially revise the laws of this state relating to the conduct of criminal trials and appeals in criminal cases; to provide for a short title; to amend Chapter 7 of Title 5 of the Official Code of Georgia Annotated, relating to appeal or certiorari by the state in criminal cases, so as to provide that the state may appeal from an order, decision, or judgment of a superior court granting a motion for new trial or denying a motion by the state to recuse or disqualify a judge; to amend Article 5 of Chapter 12 of Title 15 of the Official Code of Georgia Annotated, relating to trial juries, so as to provide the state and the accused with the same number of peremptory challenges in misdemeanor, felony, and death penalty cases and in challenging alternate jurors; to provide the manner in which peremptory challenges are made; to change the size of the jury panel in felony and death penalty cases; to provide the manner in which the number of alternative jurors is determined; to amend Title 17 of the Official Code of Georgia Annotated, relating to criminal procedure, so as to provide the state with an equal number of additional peremptory challenges in trials for jointly indicted defendants; to provide that the prosecuting attorney shall always conclude the argument to the jury; to change the provision relating to notice and argument in presentence hearings; to provide that provisions relating to discovery apply to sentencing proceedings; to amend Title 24 of the Official Code of Georgia Annotated, relating to evidence, so as to change the provisions relating to the impeachment of witnesses; to provide for the admission of evidence of character of a witness; to provide for the impeachment of witnesses through evidence of conviction of a crime; to provide for the admission of specific instances of conduct by a witness; to provide for other matters relative to the foregoing; to provide for an effective date; to repeal conflicting laws; and for other purposes.

BE IT ENACTED BY THE GENERAL ASSEMBLY OF GEORGIA:

SECTION 1.

This Act shall be known and may be cited as the "Criminal Justice Act of 2005."

SECTION 2.

Chapter 7 of Title 5 of the Official Code of Georgia Annotated, relating to appeal or certiorari by the state in criminal cases, is amended by striking subsection (a) of Code Section 5-7-1, relating to orders, decisions, or judgments appealable by state, and inserting in lieu thereof a new subsection (a) to read as follows:

"(a) An appeal may be taken by and on behalf of the State of Georgia from the superior courts, state courts, City Court of Atlanta, and juvenile courts and such other courts from which a direct appeal is authorized to the Court of Appeals of Georgia and the Supreme Court of Georgia in criminal cases and adjudication of delinquency cases in the following instances:

(1) From an order, decision, or judgment setting aside or dismissing any indictment, accusation, or petition alleging that a child has committed a delinquent act or any count thereof;

(2) From an order, decision, or judgment arresting judgment of conviction or adjudication of delinquency upon legal grounds;

(3) From an order, decision, or judgment sustaining a plea or motion in bar, when the defendant has not been put in jeopardy;

(4) From an order, decision, or judgment suppressing or excluding evidence illegally seized or excluding the results of any test for alcohol or drugs in the case of motions made and ruled upon prior to the impaneling of a jury or the defendant being put in jeopardy, whichever occurs first;

(5) From an order, decision, or judgment of a court where the court does not have jurisdiction or the order is otherwise void under the Constitution or laws of this state;

(6) From an order, decision, or judgment of a superior court transferring a case to the juvenile court pursuant to subparagraph (b)(2)(B) of Code Section 15-11-28; or

(7) From an order, decision, or judgment of a superior court granting a motion for new trial or an extraordinary motion for new trial; or

(8) From an order, decision, or judgment denying a motion by the state to recuse or disqualify a judge made and ruled upon prior to the defendant being put in jeopardy."

SECTION 3.

Article 5 of Chapter 12 of Title 15 of the Official Code of Georgia Annotated, relating to trial juries, is amended by striking Code Section 15-12-125, relating to demand of jury panels for misdemeanor trials, and inserting in lieu thereof a new Code Section 15-12-125 to read as follows:

"15-12-125.

For the trial of misdemeanors in all courts, each party may demand a full panel of 12 competent and impartial jurors from which to select a jury. When one or more of the regular panel of trial jurors is absent or for any reason disqualified, the judge, at the request of counsel for either party, shall cause the panel to be filled by additional competent and impartial jurors to the number of 12 before requiring the parties or their counsel to strike a jury. From this panel, the accused shall have the right to challenge four peremptorily, defendant and the state two shall each have the right to challenge three jurors peremptorily. The defendant and the state shall exercise their challenges as provided in Code Section 15-12-166. The remaining six jurors shall constitute the jury."

SECTION 4.

Said article is further amended by striking Code Section 15-12-160, relating to required panel of jurors in felony trial, and inserting in lieu thereof a new Code Section 15-12-160 to read as follows:

"15-12-160.

When any person stands indicted for a felony, the court shall have impaneled 30 24 jurors from which the defense and prosecution may strike jurors; provided, however, that in any case in which the state announces its intention to seek the death penalty, the court shall have impaneled 42 32 jurors from which the defense and state may strike jurors. If, for any reason, after striking from the panel there remain less than 12 qualified jurors to try the case, the presiding judge shall summon such numbers of persons who are competent jurors as may be necessary to provide a full panel. In making up the panel or successive panels, the presiding judge shall draw the tales jurors from the jury box of the county and shall order the sheriff to summon them."

SECTION 5.

Said article is further amended by striking Code Section 15-12-165, relating to number of peremptory challenges, and inserting in lieu thereof a new Code Section 15-12-165 to read as follows:

"15-12-165.

Every person indicted for a crime or offense accused of a felony may peremptorily challenge 12 six of the jurors impaneled to try him or her. The state shall be allowed one-half the same number of peremptory challenges allowed to the accused defendant; provided, however, that in any case in which the state announces its intention to seek the death penalty, the person indicted for the crime defendant may peremptorily challenge 20 ten jurors and the state shall be allowed one-half the same number of peremptory challenges allowed to the accused."

SECTION 6.

Said article is further amended by striking Code Section 15-12-166, relating to jurors not challenged to be sworn, and inserting in lieu thereof a new Code Section 15-12-166 to read as follows:

"15-12-166.

If a juror is found competent, and is not challenged peremptorily by the state, he shall be put upon the accused the defendant and the state shall alternate in exercising their peremptory challenges with the defendant exercising the first challenge. Unless the parties and the court agree to another procedure, peremptory challenges shall be exercised in a manner so that the challenges shall not be heard by the jurors. Unless he the juror is challenged peremptorily by the accused defendant or the state, the juror shall be sworn to try the case."

SECTION 7.

Said article is further amended by striking Code Section 15-12-169, relating to manner of selecting alternate jurors, and inserting in lieu thereof a new Code Section 15-12-169 to read as follows:

"15-12-169.

Alternate jurors must be drawn from the same source and in the same manner and have the same qualifications as the jurors already sworn. They shall be subject to the same examination and challenges. The number of alternate jurors shall be determined by the court. The state and the defendant shall be entitled to as many peremptory challenges to alternate jurors as there are alternate jurors called. The defendant shall be entitled to additional peremptory challenges in an amount twice greater than the additional peremptory challenges of the state. The peremptory challenges allowed to the state and to the defendant in such event shall be in addition to the regular number of peremptory challenges allowed in criminal cases to the defendant and to the state as provided by law. When two or more defendants are tried jointly, each defendant shall be entitled to as many peremptory challenges to alternate jurors as there are alternate jurors called the number and manner of exercising peremptory challenges shall be determined as provided in Code Section 17-8-4."

SECTION 8.

Title 17 of the Official Code of Georgia Annotated, relating to criminal procedure, is amended by striking Code Section 17-8-4, relating to procedure for trial of jointly indicted defendants, and inserting in lieu thereof a new Code Section 17-8-4 to read as follows:

"17-8-4.

(a) When two or more defendants are jointly indicted for a capital offense, any defendant so electing shall be separately tried unless the state shall waive the death penalty. When indicted for a capital felony when the death penalty is waived, or for a felony less than capital, or for a misdemeanor, such defendants may be tried jointly or separately in the discretion of the trial court. In any event, a jointly indicted defendant may testify for another jointly indicted defendant or on behalf of the state. When separate trials are ordered in any case, the defendants shall be tried in the order requested by the state. If the offense requires joint action and concurrence of two or more persons, acquittal or conviction of one defendant shall not operate as acquittal or conviction of others not tried.

(b) When two or more defendants are tried jointly for a crime or offense, such defendants shall be entitled to the same number of strikes as a single defendant if tried separately. The strikes shall be exercised jointly by the defendants or shall be apportioned among the defendants in the manner the court shall direct. In the event two or more defendants are tried jointly, the court, upon request of the defendants, acting in its sole discretion, may allow an equal number of additional strikes to the defendants, not to exceed five each, as the court shall deem necessary, to the ends that justice may prevail. The court shall allow the state the same number of additional strikes as are allowed to the defendants."

SECTION 9.

Said title is further amended by striking Code Section 17-8-71, relating to order of argument after evidence presented, and inserting in lieu thereof a new Code Section 17-8-71 to read as follows:

"17-8-71.

After the evidence is closed on both sides, the prosecuting attorney shall be entitled to open and conclude the argument to the jury. If the defendant introduces no evidence, his counsel shall open and conclude the argument to the jury after the evidence on the part of the state is closed The defendant shall be entitled to make a single closing argument prior to the concluding argument of the prosecuting attorney."

SECTION 10.

Said title is further amended by striking subsection (a) of Code Section 17-10-2, relating to conduct of presentence hearings in felony cases, and inserting in lieu thereof a new subsection (a) to read as follows:

"(a)(1) Except in cases in which the death penalty or life without parole may be imposed, upon the return of a verdict of 'guilty' by the jury in any felony case, the judge shall dismiss the jury and shall conduct a presentence hearing at which the only issue shall be the determination of punishment to be imposed. In the hearing the judge shall hear additional evidence in extenuation, mitigation, and aggravation of punishment, including the record of any prior criminal convictions and pleas of guilty or nolo contendere of the defendant, or the absence of any prior conviction and pleas, provided that only such evidence in aggravation as the state has made known to the defendant prior to the defendant́s trial shall be admissible.

(2) The judge shall also hear argument by the defendant or the defendant́s counsel and the district prosecuting attorney, as provided by law, regarding the punishment to be imposed. The district prosecuting attorney shall open and the defendant or the defendant́s counsel shall conclude the argument.

(3) Upon the conclusion of the evidence and arguments, the judge shall impose the sentence or shall recess the trial for the purpose of taking the sentence to be imposed under advisement. The judge shall fix a sentence within the limits prescribed by law."

SECTION 11.

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) The provisions of this article shall apply to presentence hearings."

SECTION 12.

Title 24 of the Official Code of Georgia Annotated, relating to evidence, is amended by striking Code Section 24-2-2, relating to character and conduct of parties generally irrelevant, and inserting in lieu thereof a new Code Section 24-2-2 to read as follows:

"24-2-2.

(a) The general character of the parties and especially their conduct in other transactions are irrelevant matter unless the nature of the action involves such character and renders necessary or proper the investigation of such conduct Evidence of a persońs character or a trait of character is not admissible for the purpose of proving action in conformity therewith on a particular occasion, except:

(1) Character of accused. Evidence of a pertinent trait of character offered by an accused or by the prosecution to rebut the same or, if evidence of a trait of character of the alleged victim of the crime is offered by an accused and admitted under paragraph (2) of this subsection, evidence of the same trait of character of the accused offered by the prosecution;

(2) Character of alleged victim. Evidence of a pertinent trait of character of the alleged victim of the crime offered by an accused or by the prosecution to rebut the same or evidence of a character trait of peacefulness of the alleged victim offered by the prosecution in a homicide case to rebut evidence that the alleged victim was the aggressor;

(3) Character of witness. Evidence of the character of a witness as provided in Article 4 of Chapter 9 of this title.

(b)(1) Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, bent of mind, course of conduct, plan, knowledge, identity, common scheme, modus operandi, or absence of mistake or accident.

(2) Upon written request made by the defendant at or prior to arraignment, the prosecution in a criminal case shall provide notice of the general nature of any such evidence it intends to introduce at trial ten days in advance of trial; however, if the other crimes, wrongs, or acts involve prior difficulties between the parties involved in the case, then no such notice is required. The trial court may, in its discretion, excuse the ten day notice requirement on good cause shown.

(c)(1) In all cases in which evidence of character or a trait of character of a person is admissible, proof may be made by testimony as to that persońs general reputation for character in the community by a witness who has knowledge of that persońs general reputation for character in the community.

(2) Specific instances of conduct are generally inadmissible to prove character or a trait of character; however, inquiry is allowable into relevant specific instances of conduct on cross examination."

SECTION 13.

Said title is further amended by striking subsections (b) and (c) of Code Section 24-9-20, relating to testimony of criminal defendant, and inserting in lieu thereof new subsections (b) and (c) to read as follows:

"(b) If a defendant in a criminal case wishes to testify and announces in open court his intention to do so, he may so testify in his own behalf. If a defendant testifies, he shall be sworn as any other witness and may be examined and cross-examined as any other witness, except that no evidence of general bad character or prior convictions shall be admissible unless and until the defendant shall have first put his character in issue. Evidence of prior felony convictions may be admitted in those cases where the prior felony convictions are alleged in the indictment, as provided by law. The failure of a defendant to testify shall create no presumption against him, and no comment shall be made because of such failure.

(c) In the event that a defendant elects to be sworn and examined, he shall not lose his right to open and conclude the argument to the jury, if he has not introduced other evidence in the trial."

SECTION 14.

Said title is further amended by striking Code Section 24-9-81, relating to when own witness may be impeached, and inserting in lieu thereof a new Code Section 24-9-81 to read as follows:

"24-9-81.

A party may not impeach a witness voluntarily called by him, except where he can show to the court that he has been entrapped by said witness by a previous contradictory statement. Any party, including the party calling the witness, may attack the credibility of a witness. However, in In the trial of all civil cases, either plaintiff or defendant shall be permitted to make the opposite party, or anyone for whose immediate benefit the action is prosecuted or defended, or any agent of said party, or agent of any person for whose immediate benefit such action is prosecuted or defended, or officer or agent of a corporation when a corporation is such party or for whose benefit such action is prosecuted or defended a witness, with the privilege of subjecting such witness to a thorough and sifting examination and with the further privilege of impeachment, as if the witness had testified in his own behalf and were being cross-examined."

SECTION 15.

Said title is further amended by striking Code Section 24-9-84, relating to how witnesses are impeached by proof of general bad character, and inserting in lieu thereof new Code Sections 24-9-84, 24-9-84.1, and 24-9-84.2 to read as follows:

"24-9-84.

A witness may be impeached by evidence as to his general bad character. Any party may impeach the credibility of a witness by offering evidence of the witnesśs bad character in the form of reputation, but subject to the following limitations:

(a) The evidence may refer only to character for truthfulness or untruthfulness;

(b) Evidence of truthful character is admissible only after the character of the witness for truthfulness has been attacked by reputation evidence or otherwise; and

(c) The impeaching character witness should first be questioned as to his knowledge of the general character of the witness, next as to what that character is, and lastly he may be asked if from that character he would believe him on his oath. The witness may be sustained by similar proof of character. The particular transactions or the opinions of single individuals shall not be inquired of on either side, except upon cross-examination in seeking for the extent and foundation of the witnesśs knowledge.

24-9-84.1.

(a) General rule. For the purpose of attacking the credibility of a witness or the accused, if the accused testifies:

(1) Evidence that a witness or the accused has been convicted of a crime shall be admitted if the crime was punishable by death or imprisonment of one year or more under the law under which the witness or the accused was convicted if the court determines that the probative value of admitting the evidence outweighs its prejudicial effect to the witness or to the accused; and

(2) Evidence that any witness or the accused has been convicted of a crime shall be admitted if it involved dishonesty or making a false statement, regardless of the punishment that could be imposed for such offense.

(b) Time limit. Evidence of a conviction under subsection (a) of this Code section is not admissible if a period of more than ten years has elapsed since the date of the conviction or of the release of the witness or the accused from the confinement imposed for that conviction, whichever is the later date, unless the court determines, in the interest of justice, that the probative value of the conviction supported by specific facts and circumstances substantially outweighs its prejudicial effect. However, evidence of a conviction more than ten years old, as calculated herein, is not admissible unless the proponent gives to the adverse party sufficient advance written notice of intent to use such evidence to provide the adverse party with a fair opportunity to contest the use of such evidence.

(1) The conviction has been the subject of a pardon or annulment based on a finding of the rehabilitation of the person convicted and such person has not been convicted of a subsequent crime that was punishable by death or imprisonment for one year or more; or

(2) The conviction has been the subject of a pardon, annulment, or other equivalent procedure based on a finding of innocence.

(d) Juvenile adjudications. Evidence of juvenile adjudications is generally not admissible under this Code section. The court may, however, in a criminal case allow evidence of a juvenile adjudication of a witness other than the accused if conviction of the offense would be admissible to attack the credibility of an adult and the court is satisfied that admission in evidence is necessary for a fair determination of the issue of guilt or innocence.

(e) Pendency of appeal. The pendency of an appeal therefrom does not render evidence of a conviction inadmissible. Evidence of the pendency of an appeal shall be admissible.

24-9-84.2.

Any party may offer evidence of specific instances of conduct of a witness, for the purpose of attacking or supporting the witnesśs character for truthfulness, other than conviction of crime as provided in Code Section 24-9-84.1. Such specific instances of conduct may not be proved by extrinsic evidence. They may, however, in the discretion of the court, if probative of truthfulness or untruthfulness, be inquired into on cross-examination of the witness concerning the witnesśs character for truthfulness or untruthfulness or concerning the character for truthfulness or untruthfulness of another witness as to which character the witness being cross-examined has testified."

SECTION 16.

This Act shall become effective on the first day of the month following the month in which it is approved by the Governor or in which it becomes law without such approval.

SECTION 17.

All laws and parts of laws in conflict with this Act are repealed.