| 1 | 1 | | 25 LC 49 2176 |
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| 2 | 2 | | Senate Bill 202 |
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| 3 | 3 | | By: Senators Jones II of the 22nd, Rhett of the 33rd, Rahman of the 5th, Goodman of the 8th |
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| 4 | 4 | | and James of the 28th |
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| 5 | 5 | | A BILL TO BE ENTITLED |
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| 6 | 6 | | AN ACT |
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| 7 | 7 | | To amend Chapter 16 of Title 17 of the Official Code of Georgia Annotated, relating to |
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| 8 | 8 | | 1 |
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| 9 | 9 | | discovery, so as to change provisions relating to discovery in misdemeanor cases; to provide2 |
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| 10 | 10 | | for a defendant to opt into reciprocal discovery similar to provisions in felony cases; to3 |
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| 11 | 11 | | require the defendant to provide the prosecuting attorney with a list of witness and alibi4 |
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| 12 | 12 | | information; to provide for procedure; to provide for sanctions; to provide for related matters;5 |
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| 13 | 13 | | to repeal conflicting laws; and for other purposes.6 |
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| 14 | 14 | | BE IT ENACTED BY THE GENERAL ASSEMBLY OF GEORGIA:7 |
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| 15 | 15 | | SECTION 1.8 |
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| 16 | 16 | | Chapter 16 of Title 17 of the Official Code of Georgia Annotated, relating to discovery, is9 |
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| 17 | 17 | | amended by revising Article 2, relating to discovery in misdemeanor cases, as follows:10 |
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| 18 | 18 | | "ARTICLE 211 |
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| 19 | 19 | | 17-16-20.12 |
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| 20 | 20 | | (a) |
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| 21 | 21 | | The provisions of this article shall apply only to misdemeanor cases or to felony cases13 |
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| 22 | 22 | | docketed, indicted, or in which an accusation was returned prior to January 1, 1995, if the14 |
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| 23 | 23 | | S. B. 202 |
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| 24 | 24 | | - 1 - 25 LC 49 2176 |
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| 25 | 25 | | prosecuting attorney and the defendant do not agree in writing that the provisions of Article15 |
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| 26 | 26 | | 1 of this chapter shall apply when at or prior to arraignment, or at such time the court16 |
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| 27 | 27 | | permits, the defendant provides written notice to the prosecuting attorney that such17 |
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| 28 | 28 | | defendant elects to have this article apply to the defendant's case. When one defendant in18 |
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| 29 | 29 | | a multidefendant case demands discovery under this article, the provisions of this article19 |
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| 30 | 30 | | shall apply to all defendants in the case, unless a severance is granted.20 |
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| 31 | 31 | | (b) Except as provided in subsection (c) of this Code section, this article shall not apply21 |
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| 32 | 32 | | to juvenile court proceedings.22 |
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| 33 | 33 | | (c) This article shall be deemed to have been automatically invoked, without the written23 |
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| 34 | 34 | | notice provided for in subsection (a) of this Code section, when a defendant has sought24 |
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| 35 | 35 | | discovery pursuant to Chapter 11 of Title 9, the 'Georgia Civil Practice Act,' pursuant to25 |
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| 36 | 36 | | Part 8 of Article 6 of Chapter 11 of Title 15, or pursuant to the Uniform Rules for the26 |
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| 37 | 37 | | Juvenile Courts of Georgia when such discovery material is the same as the discovery27 |
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| 38 | 38 | | material that may be provided under this article when a written notice is filed pursuant to28 |
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| 39 | 39 | | subsection (a) of this Code section.29 |
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| 40 | 40 | | (d) This article is not intended to authorize discovery or inspection of attorney work30 |
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| 41 | 41 | | product.31 |
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| 42 | 42 | | 17-16-21.32 |
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| 43 | 43 | | (a) Prior to or at arraignment, every person charged with a criminal offense the defendant33 |
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| 44 | 44 | | shall be furnished with a copy of the indictment or accusation and, on demand, with a list34 |
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| 45 | 45 | | of the witnesses on whose testimony the charge against such person is founded. Without35 |
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| 46 | 46 | | the consent of the defendant, no witness shall be permitted to testify for the state whose36 |
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| 47 | 47 | | name does not appear on the list of witnesses as furnished to the defendant unless the37 |
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| 48 | 48 | | prosecuting attorney shall state that the evidence sought to be presented is newly38 |
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| 49 | 49 | | discovered evidence which the state was not aware of at the time of its furnishing the39 |
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| 50 | 50 | | defendant with a list of the witnesses.40 |
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| 51 | 51 | | S. B. 202 |
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| 52 | 52 | | - 2 - 25 LC 49 2176 |
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| 53 | 53 | | (b) If a defendant elects to have this article apply, the prosecuting attorney, not later than41 |
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| 54 | 54 | | ten days before trial, or as otherwise ordered by the court, shall provide the defendant with42 |
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| 55 | 55 | | a list of witnesses that the state intends to call as witnesses at trial. Such list shall include43 |
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| 56 | 56 | | the names, address and current locations, dates of birth, and telephone numbers of the44 |
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| 57 | 57 | | state's witnesses, unless for good cause the court allows an exception to this requirement,45 |
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| 58 | 58 | | in which event the defendant shall be afforded an opportunity to interview such witnesses46 |
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| 59 | 59 | | prior to the witnesses being called to testify. If the witness is a law enforcement officer,47 |
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| 60 | 60 | | the prosecuting attorney shall furnish the defendant with such officer's current work48 |
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| 61 | 61 | | location and work phone number.49 |
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| 62 | 62 | | (c) Within ten days after the prosecuting attorney provides a list of witnesses, but no later50 |
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| 63 | 63 | | than five days prior to trial, or as otherwise ordered by the court, the defendant shall furnish51 |
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| 64 | 64 | | the prosecuting attorney with a list of witnesses that the defendant intends to call at trial. 52 |
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| 65 | 65 | | Such list shall include the names, address and current locations, dates of birth, and53 |
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| 66 | 66 | | telephone numbers of the defendant's witnesses, unless for good cause the court allows an54 |
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| 67 | 67 | | exception to this requirement, in which event the prosecuting attorney shall be afforded an55 |
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| 68 | 68 | | opportunity to interview such witnesses prior to the witnesses being called to testify.56 |
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| 69 | 69 | | (d) If prior to or during trial the prosecuting attorney or defendant learns of additional57 |
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| 70 | 70 | | witnesses whose identity, if known, should have been included in the information furnished58 |
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| 71 | 71 | | pursuant to this Code section, the discovering party shall notify the other party of the59 |
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| 72 | 72 | | existence and identity of such additional witnesses.60 |
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| 73 | 73 | | (e) The prosecuting attorney or defendant may call as a witness any individual listed on61 |
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| 74 | 74 | | either witness list.62 |
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| 75 | 75 | | (b)(f) Nothing in this Code section shall be construed to require any person charged with63 |
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| 76 | 76 | | a criminal offense to be furnished the home address, date of birth, or home telephone64 |
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| 77 | 77 | | number of a witness who is a law enforcement officer or a nonsworn employee of a law65 |
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| 78 | 78 | | enforcement agency. Instead, in such cases, such person shall be furnished with the current66 |
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| 79 | 79 | | S. B. 202 |
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| 80 | 80 | | - 3 - 25 LC 49 2176 |
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| 81 | 81 | | work location and work phone number of the law enforcement officer or nonsworn |
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| 82 | 82 | | 67 |
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| 83 | 83 | | employee of a law enforcement agency.68 |
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| 84 | 84 | | (c) |
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| 85 | 85 | | (g) Any formerly employed or retired law enforcement officer or nonsworn employee69 |
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| 86 | 86 | | of a law enforcement agency may use the address and phone number of the last agency70 |
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| 87 | 87 | | where he or she was employed as his or her contact information for purposes of this Code71 |
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| 88 | 88 | | section. Use of this subsection by an officer or employee shall constitute a waiver of any72 |
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| 89 | 89 | | claim by such officer or employee as to any defect of service or notice of hearing if the73 |
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| 90 | 90 | | service or notice was provided to the designated law enforcement agency and shall impose74 |
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| 91 | 91 | | an affirmative obligation on such officer or employee to keep current his or her personal75 |
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| 92 | 92 | | address and phone number information with such agency.76 |
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| 93 | 93 | | 17-16-22.77 |
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| 94 | 94 | | (a) At If the defendant elects to have this article apply, the prosecuting attorney shall, at78 |
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| 95 | 95 | | least ten days prior to the trial of the case, disclose to the defendant shall be entitled to have79 |
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| 96 | 96 | | a copy of any statement given by the defendant while in police custody. The defendant80 |
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| 97 | 97 | | may make such request for a copy of any such statement, in writing, within any reasonable81 |
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| 98 | 98 | | period of time prior to trial.82 |
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| 99 | 99 | | (b) If the defendant's statement is oral or partially oral, the prosecution prosecuting83 |
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| 100 | 100 | | attorney shall furnish, in writing, all relevant and material portions of the defendant's84 |
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| 101 | 101 | | statement.85 |
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| 102 | 102 | | (c) Failure of the prosecution to comply with a defendant's timely written request for a86 |
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| 103 | 103 | | copy of such defendant's statement, whether written or oral, shall result in such statement87 |
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| 104 | 104 | | being excluded and suppressed from the prosecution's use in its case-in-chief or in rebuttal. 88 |
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| 105 | 105 | | If the defendant elects to have this article apply, the prosecuting attorney shall, at least ten89 |
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| 106 | 106 | | days prior to the trial of the case, make available for inspection or copying by the defendant90 |
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| 107 | 107 | | copies of the police incident report and all supplemental police reports, if any, regarding91 |
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| 108 | 108 | | the occurrence which forms the basis of the charges.92 |
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| 109 | 109 | | S. B. 202 |
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| 110 | 110 | | - 4 - 25 LC 49 2176 |
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| 111 | 111 | | (d) If the defendant's statement is oral, no relevant and material, incriminating or93 |
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| 112 | 112 | | inculpatory, portion of the statement of the defendant may be used against the defendant94 |
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| 113 | 113 | | unless it has been previously furnished to the defendant, if a timely written request for a95 |
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| 114 | 114 | | copy of the statement has been made by the defendant.96 |
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| 115 | 115 | | (e)(d) This Code section shall not apply to evidence information subject to disclosure97 |
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| 116 | 116 | | pursuant to this Code section which is discovered after a request has been filed. If a98 |
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| 117 | 117 | | request has been filed, such evidence information shall be produced as soon as possible99 |
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| 118 | 118 | | after it has been discovered.100 |
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| 119 | 119 | | 17-16-23.101 |
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| 120 | 120 | | (a) As used in this Code section, the term 'written scientific reports' includes, but is not102 |
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| 121 | 121 | | limited to, reports from the Division of Forensic Sciences of the Georgia Bureau of103 |
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| 122 | 122 | | Investigation; an autopsy report by the coroner of a county or by a private pathologist;104 |
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| 123 | 123 | | blood alcohol test results done by a law enforcement agency or a private physician; and105 |
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| 124 | 124 | | similar types of reports that would be used as scientific evidence by the prosecution in its106 |
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| 125 | 125 | | prosecuting attorney in the prosecution's case-in-chief or in rebuttal against the defendant.107 |
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| 126 | 126 | | (b) In all criminal trials the defendant shall be entitled to have If the defendant elects to108 |
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| 127 | 127 | | have this article apply, the prosecuting attorney shall, at least ten days prior to trial of the109 |
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| 128 | 128 | | case, disclose to the defendant a complete copy of any written scientific reports in the110 |
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| 129 | 129 | | possession of the prosecution which will be introduced in whole or in part against the111 |
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| 130 | 130 | | defendant by the prosecution in its prosecuting attorney in the prosecution's case-in-chief112 |
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| 131 | 131 | | or in rebuttal. The request for a copy of any written scientific reports shall be made by the113 |
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| 132 | 132 | | defendant in writing at arraignment or within any reasonable time prior to trial. If such114 |
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| 133 | 133 | | written request is not made at arraignment, it shall be within the sound discretion of the115 |
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| 134 | 134 | | trial judge to determine in each case what constitutes a reasonable time prior to trial. If the116 |
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| 135 | 135 | | scientific report is in the possession of or available to the prosecuting attorney, the117 |
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| 136 | 136 | | S. B. 202 |
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| 137 | 137 | | - 5 - 25 LC 49 2176 |
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| 138 | 138 | | prosecuting attorney must comply with this Code section at least ten days prior to the trial118 |
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| 139 | 139 | | of the case.119 |
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| 140 | 140 | | (c) Failure by the prosecution to furnish the defendant with a copy of any written scientific120 |
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| 141 | 141 | | report, when a proper and timely written demand has been made by the defendant, shall121 |
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| 142 | 142 | | result in such report being excluded and suppressed from evidence in the prosecution's122 |
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| 143 | 143 | | case-in-chief or in rebuttal.123 |
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| 144 | 144 | | 17-16-24.124 |
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| 145 | 145 | | If the defendant elects to have this article apply, the prosecuting attorney shall permit the125 |
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| 146 | 146 | | defendant at a time agreed to by the parties or ordered by the court to inspect and copy or126 |
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| 147 | 147 | | photograph books, papers, documents, photographs, tangible objects, or copies or portions127 |
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| 148 | 148 | | thereof and to inspect audio and visual tapes or copies or portions thereof that are within128 |
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| 149 | 149 | | the possession, custody, or control of the state or prosecution and are intended for use by129 |
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| 150 | 150 | | the prosecuting attorney as evidence in the prosecution's case-in-chief or rebuttal at the130 |
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| 151 | 151 | | trial.131 |
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| 152 | 152 | | 17-16-25.132 |
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| 153 | 153 | | (a) If the defendant elects to have this article apply, when the prosecuting attorney133 |
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| 154 | 154 | | provides a discovery response that includes the time, date, and place at which the alleged134 |
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| 155 | 155 | | offense was committed, the defendant shall serve upon the prosecuting attorney, within ten135 |
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| 156 | 156 | | days of the discovery response from the prosecuting attorney or ten days prior to trial,136 |
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| 157 | 157 | | whichever is later or as ordered by the court, a written notice of the defendant's intention137 |
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| 158 | 158 | | to offer a defense of alibi. Such notice by the defendant shall state the specific place or138 |
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| 159 | 159 | | places at which the defendant claims to have been at the time of the alleged offense and the139 |
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| 160 | 160 | | names, addresses, dates of birth, and telephone numbers of the witnesses, if known to the140 |
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| 161 | 161 | | defendant, upon whom the defendant intends to rely to establish such alibi unless141 |
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| 162 | 162 | | previously supplied.142 |
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| 163 | 163 | | S. B. 202 |
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| 164 | 164 | | - 6 - 25 LC 49 2176 |
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| 165 | 165 | | (b) The prosecuting attorney shall serve upon the defendant within five days of the143 |
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| 166 | 166 | | defendant's written notice but no later than five days before trial, whichever is later, a144 |
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| 167 | 167 | | written notice stating the names, addresses, dates of birth, and telephone numbers of the145 |
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| 168 | 168 | | witnesses, if known to the state, upon whom the state intends to rely to rebut the146 |
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| 169 | 169 | | defendant's evidence of alibi unless previously supplied.147 |
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| 170 | 170 | | (c) If prior to or during trial a party learns of an additional witness whose identity, if148 |
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| 171 | 171 | | known, should have been included in the information furnished under subsection (a) or (b)149 |
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| 172 | 172 | | of this Code section, the party shall promptly notify the other party of the existence and150 |
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| 173 | 173 | | identity of such additional witness.151 |
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| 174 | 174 | | (d) Upon a showing that a disclosure required by this Code section would create a152 |
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| 175 | 175 | | substantial threat of physical or economic harm to a witness, the court may grant an153 |
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| 176 | 176 | | exception to any of the requirements of subsections (a) through (c) of this Code section.154 |
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| 177 | 177 | | (e) If the defendant withdraws the notice of intention to rely upon an alibi defense, the155 |
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| 178 | 178 | | notice and intention to rely upon an alibi defense are not admissible. However, the156 |
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| 179 | 179 | | prosecuting attorney may offer any other evidence regarding alibi.157 |
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| 180 | 180 | | 17-16-26.158 |
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| 181 | 181 | | If at any time during the course of the proceedings it is brought to the attention of the court159 |
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| 182 | 182 | | that the state has failed to comply with the requirements of this article, the court may order160 |
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| 183 | 183 | | the state to permit the discovery or inspection, grant a continuance, or, upon a showing of161 |
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| 184 | 184 | | prejudice and bad faith, prohibit the state from introducing the evidence not disclosed or162 |
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| 185 | 185 | | presenting the witness not disclosed, or may enter such other order as it deems just under163 |
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| 186 | 186 | | the circumstances. If at any time during the course of the proceedings it is brought to the164 |
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| 187 | 187 | | attention of the court that the defendant has failed to comply with the requirements of this165 |
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| 188 | 188 | | article, the court may order the defendant to permit the discovery or inspection, interview166 |
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| 189 | 189 | | of the witness, grant a continuance, or, upon a showing of prejudice and bad faith, prohibit167 |
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| 190 | 190 | | the defendant from introducing the evidence not disclosed or presenting the witness not168 |
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| 191 | 191 | | S. B. 202 |
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| 192 | 192 | | - 7 - 25 LC 49 2176 |
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| 193 | 193 | | disclosed, or may enter such other order as it deems just under the circumstances. The169 |
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| 194 | 194 | | court may specify the time, place, and manner of making the discovery, inspection, and170 |
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| 195 | 195 | | interview and may prescribe such terms and conditions as are just.171 |
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| 196 | 196 | | 17-16-27.172 |
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| 197 | 197 | | Nothing in this article shall supersede the prosecuting attorney's duty to disclose all173 |
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| 198 | 198 | | evidence, known or that may become known to him or her, favorable to the defendant and174 |
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| 199 | 199 | | material either to guilt or punishment."175 |
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| 200 | 200 | | SECTION 2.176 |
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| 201 | 201 | | All laws and parts of laws in conflict with this Act are repealed.177 |
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| 202 | 202 | | S. B. 202 |
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| 203 | 203 | | - 8 - |
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