Summary of HB 170 (Criminal Justice Act of 2005)

Motion for recusal of judge or motion for new trial

The denial or grant of those motions may be directly appealable by the State.

The defense may appeal the denial of the motion to recuse via interlocutory appeal.

Peremptory challenges

Misdemeanor strikes were reduced from 4 to 3. Felony strikes were reduced from 12 to 9. Death penalty strikes were reduced from 20 to 15. The State has an equal number of strikes as the defense in all of the cases. The order by which each side exercises its strikes remains the same (the old Code Section 15-12-166). The number of jurors to be impaneled remains the same.

The number of alternate jurors will 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.

In cases where 2 or more defendants are tried jointly, the court may allow the state additional strikes not to exceed the number of additional strikes as are allowed to the defendants.

A new subparagraph (d) was added to Code Section 15-12-164 which states that the court shall excuse for cause any juror who from the totality of the juror's answers on voir dire is determined by the court to be substantially impaired in the juror's ability to be fair and impartial. The juror's own representation that the juror would be fair and impartial is to be considered by the court but is not determinative.

Closing arguments

The State is entitled to both open and conclude regardless of whether the defense puts in any evidence. The State cannot waive opening.

In death penalty sentencing hearings, the defense may conclude.

Aggravation evidence

The state must provide to the defense notice of any evidence in aggravation of punishment 10 days before trial or at such time the court orders but no later than the beginning of the trial.

Discovery of death penalty mitigation evidence

If the defendant has opted into the discovery provisions, then the defense must turn over discovery of mitigation evidence to the prosecution no later than the return of a guilty verdict. However, the defense must turn over the witness list 5 days before trial commences. Any statements made can be turned over at the return of a guilty verdict.

Impeachment

Any party may attack the credibility of a witness. Any party may impeach the witness' credibility. Character evidence in the form of reputation testimony may be brought in if the defendant testifies and offers evidence of his truthful character.

Prior convictions may be brought in to impeach the witnesses including the defendants, if they testify. The prior convictions must be less than 10 years old; however, that time period may be calculated from when the defendant is released from confinement. Also, older convictions can be used if prior notice is given to the opposing party.

Prior convictions that have been pardoned or annulled are not admissible if 1) the pardon or annulment was based on a finding of rehabilitation and the person has not been convicted of a subsequent felony, and 2) the pardon or annulment was based on a finding of innocence.

Although juvenile adjudications are not admissible against the defendant, a witness may be impeached by juvenile adjudications only if the party seeking to admit the juvenile adjudications shows the following:

(1) The factual basis for the proven allegations of delinquency would have constituted a crime under the laws of the state of the juvenile court if committed by an adult at the time they were committed by the juvenile:

(2) The probative value of the evidence substantially outweighs the prejudicial effect of its admission; and

(3) The court finds that admission of the adjudication into evidence is necessary for a fair determination of the issue of guilt or innocence of the defendant.

The fact that there is an appeal pending on a conviction does not make the conviction inadmissible.

Expansion of Rape Shield

The rape shield law was expanded to cover all the sexually violent offenses defined in O.C.G.A. § 42-1-12 (rape, aggravated sodomy, aggravated child molestation, and aggravated sexual battery).

Effective Date for the bill

The act will become effective for all trials commencing on or after 7/1/05.