per se rule in Georgia

1997However, Boyd does not establish a per se rule “that as a matter of law such statements by a police officer are inherently prejudicial and incapable of being cured.” Sabel v. State, 250 Ga. 640, 644 (5) ( 300 SE2d 663 ) (1983).

1997However, Boyd does not establish a per se rule “that as a matter of law such statements by a police officer are inherently prejudicial and incapable of being cured.” Sabel v. State, 250 Ga. 640, 644 (5) ( 300 SE2d 663 ) (1983).

2015However, prior to the bench trial and the denial of the motion to suppress in Williams’s case, the United States Supreme Court issued its decision in Missouri v. McNeely, 569 U. S. __ ( 133 SCt 1552 , 185 LE2d 696) (2013), in which it rejected a per se rule that the natural metabolization of alcohol in a person’s bloodstream constitutes an exigency justifying an exception to the Fourth Amendment’s search warrant requirement for nonconsensual blood testing in all DUI cases. 569 U. S. _ ( 133 SCt at 1556 ).

2015However, prior to the bench trial and the denial of the motion to suppress in Williams’s case, the United States Supreme Court issued its decision in Missouri v. McNeely, 569 U. S. __ ( 133 SCt 1552 , 185 LE2d 696) (2013), in which it rejected a per se rule that the natural metabolization of alcohol in a person’s bloodstream constitutes an exigency justifying an exception to the Fourth Amendment’s search warrant requirement for nonconsensual blood testing in all DUI cases. 569 U. S. _ ( 133 SCt at 1556 ).

2022Moreover, “a violation of OCGA § 24-8-824 is not automatically a federal [due process] violation too, because the tests for determining the voluntariness of a confession under the statute and under the Constitution are not the same.” (Emphasis in original.) Id. at 779 (3) (b); see also United States v. Lall, 607 F3d 1277, 1285 (3) (11th Cir. 2010) (noting that “a per se rule that would render a confession involuntary [as a matter of due process] if it was preceded by ‘any direct or implied promises, however slight,’ has been rejected by the Supreme Court.” (citing Arizona v. Fulminante, 499 U.

2022Moreover, “a violation of OCGA § 24-8-824 is not automatically a federal [due process] violation too, because the tests for determining the voluntariness of a confession under the statute and under the Constitution are not the same.” (Emphasis in original.) Chulpayev, 296 Ga. at 779 (3) (b); see also United States v. Lall, 607 F3d 1277, 1285 (II) (A) (3) (11th Cir. 2010) (noting that “a per se rule that would render a confession involuntary [as a matter of due process] if it was preceded by ‘any direct or implied promises, however slight,’ has been rejected by the Supreme Court.” (citing Arizo

2022Moreover, “a violation of OCGA § 24-8-824 is not automatically a federal [due process] violation too, because the tests for determining the voluntariness of a confession under the statute and under the Constitution are not the same.” (Emphasis in original.) Id. at 779 (3) (b); see also United States v. Lall, 607 F3d 1277, 1285 (3) (11th Cir. 2010) (noting that “a per se rule that would render a confession involuntary [as a matter of due process] if it was preceded by ‘any direct or implied promises, however slight,’ has been rejected by the Supreme Court.” (citing Arizona v. Fulminante, 499 U.

2022Moreover, “a violation of OCGA § 24-8-824 is not automatically a federal [due process] violation too, because the tests for determining the voluntariness of a confession under the statute and under the Constitution are not the same.” (Emphasis in original.) Id. at 779 (3) (b); see also United States v. Lall, 607 F3d 1277, 1285 (3) (11th Cir. 2010) (noting that “a per se rule that would render a confession involuntary [as a matter of due process] if it was preceded by ‘any direct or implied promises, however slight,’ has been rejected by the Supreme Court.” (citing Arizona v. Fulminante, 499 U.

2012See Preston v. State, 257 Ga. 42, 45 ( 354 SE2d 135 ) (1987); Moore, 254 Ga. at 676 (“While some jurisdictions have adopted a per se rule prohibiting any evidentiary use of independent offenses where an acquittal was obtained, the application of collateral estoppel requires an examination of what facts were in issue and necessarily resolved in the defendant’s favor at the first trial.” (citation omitted)).

2000The court in Moore declined to adopt a per se rule prohibiting any evidentiary use of independent offenses where an acquittal was obtained, but instead held that “the application of collateral estoppel requires an examination of what facts were in issue and necessarily resolved in the defendant’s favor at the first trial.” Id. at 676 .

2002We also admonished that the creation of a such a rule under those circumstances, would "open the door to the expansion of the per se rule to ... other numerous categories." Id. at 423 , 479 S.E.2d 746 .

2002We also admonished that the creation of a such a rule under those circumstances, would "open the door to the expansion of the per se rule to ... other numerous categories." Id. at 423 , 479 S.E.2d 746 .

2005“Prejudice in these circumstances is so likely that case-by-case inquiry into prejudice is not worth the cost. [Cit.]” Strickland v. Washington, supra at 692 (III) (B).

1989However, in Strickland v. Washington, 466 U. S. 668 (104 SC 2052, 80 LE2d 674) (1984) the United States Supreme Court rejected a per se rule of presumed prejudice for all cases involving conflicts of interest.

2024And in considering the State’s argument that “even if the rape-shield law does not prohibit such testimony, the testimony relates to the victim’s character, which can only be attacked by evidence of the victim’s general reputation for veracity[,]” not by “specific instances of untruthfulness,” id. (citing former OCGA §§ 24- 2-2; 24-9-84), we held that “the evidentiary rule preventing evidence of specific acts of untruthfulness must yield to the defendant’s right 12 of confrontation and right to present a full defense.” Id.3 As we observed in Burns II, with this “constitutional” holding in Smit

2024The second part of the “two-fold” decision in Smith that we granted certiorari to review in Burns II was Smith’s “constitutional” holding, where this Court, “seemingly rel[ying] on the Sixth and Fourteenth Amendments[,] . . . create[d] a per se rule of admissibility for evidence of prior false allegations where falsity has been established, notwithstanding other rules of evidence.” Burns II, 306 Ga. at 121 (2).

2017See United States v. Turner, 389 F3d 111, 116 (II) (A) (4th Cir. 2004) (rejecting per se rule of disqualification for bank depositors and distinguishing them from shareholders, who were subject to such a per se rule); see also Ellis v. State, 292 Ga. 276, 285 (4) (c) ( 736 SE2d 412 ) (2013) (explaining our reluctance to “extend the automatic disqualification rules for jurors beyond the statutorily prohibited relationships and, in criminal cases, full-time law enforcement officers and employees of the prosecutor’s office” (citation and punctuation omitted)).

2017See United States v. Turner, 389 F3d 111, 116 (II) (A) (4th Cir. 2004) (rejecting per se rule of disqualification for bank depositors and distinguishing them from shareholders, who were subject to such a per se rule); see also Ellis v. State, 292 Ga. 276, 285 (4) (c) ( 736 SE2d 412 ) (2013) (explaining our reluctance to “extend the automatic disqualification rules for jurors beyond the statutorily prohibited relationships and, in criminal cases, full-time law enforcement officers and employees of the prosecutor’s office” (citation and punctuation omitted)).

2017See United States v. Turner, 389 F3d 111, 116 (II) (A) (4th Cir. 2004) (rejecting per se rule of disqualification for bank depositors and distinguishing them from shareholders, who were subject to such a per se rule); see also Ellis v. State, 292 Ga. 276, 285 (4) (c) ( 736 SE2d 412 ) (2013) (explaining our reluctance to “extend the automatic disqualification rules for jurors beyond the statutorily prohibited relationships and, in criminal cases, full-time law enforcement officers and employees of the prosecutor’s office” (citation and punctuation omitted)).

2017Veal’s reliance on Kirkland does not alter our rejection of a per se rule for exclusion of jurors with an employment relationship with a party Stockholders are disqualified because they “stand to gain or lose by the fortunes of the corporation, because theirs is an equity interest.” Turner, 389 F3d at 116 (II) (A).

2017See Kim v. Walls, 275 Ga. 177, 179 ( 563 SE2d 847 ) (2002) (citing Cohen).

2017See Kim v. Walls, 275 Ga. 177, 179 ( 563 SE2d 847 ) (2002) (citing Cohen).

2014Nevertheless, “there is not a per se rule prohibiting any evidentiary use of an independent offense where an acquittal was obtained; instead, the doctrine of collateral estoppel requires an examination of what facts were in issue and necessarily resolved in the defendant’s favor at the first trial.” Faniel v. State, 291 Ga. 559, 562 (2) ( 731 SE2d 750 ) (2012) (citation omitted).

2014Nevertheless, “there is not a per se rule prohibiting any evidentiary use of an independent offense where an acquittal was obtained; instead, the doctrine of collateral estoppel requires an examination of what facts were in issue and necessarily resolved in the defendant’s favor at the first trial.” Faniel v. State, 291 Ga. 559, 562 (2) ( 731 SE2d 750 ) (2012) (citation omitted).

1999We have applied this per se presumption in the "unique" situation in which trial counsel "occupied the job of criminal defense attorney and law clerk in the same court at the same time." (Emphasis in original.) Sallie v. State, 269 Ga. 446, 448 (2), 499 S.E.2d 897 (1998).

1999We have applied this per se presumption in the "unique" situation in which trial counsel "occupied the job of criminal defense attorney and law clerk in the same court at the same time." (Emphasis in original.) Sallie v. State, 269 Ga. 446, 448 (2), 499 S.E.2d 897 (1998).

1996See Short v. State, 256 Ga. 165, 167 (3) ( 345 SE2d 340 ) (1986) regarding the deference on review to be given to the trial court’s conclusions. “[T]he right to silence is not protected by a per se rule of ‘permanent immunity’ against further police-initiated interrogation.” Hatcher v. State, 259 Ga. 274, 277 (2) ( 379 SE2d 775 ) (1989), quoting Michigan v. Mosley, 423 U. S. 96, 103 (96 SC 321, 46 LE2d 313) (1975).

1996See Short v. State, 256 Ga. 165, 167 (3) ( 345 SE2d 340 ) (1986) regarding the deference on review to be given to the trial court’s conclusions. “[T]he right to silence is not protected by a per se rule of ‘permanent immunity’ against further police-initiated interrogation.” Hatcher v. State, 259 Ga. 274, 277 (2) ( 379 SE2d 775 ) (1989), quoting Michigan v. Mosley, 423 U. S. 96, 103 (96 SC 321, 46 LE2d 313) (1975).

2018However, [in Williams v. State , 296 Ga. 817 , 821-822, 771 S.E.2d 373 (2015), our Supreme Court] rejected this per se rule automatically equating an affirmative response to the implied consent notice with actual consent to a search within the meaning of the Fourth Amendment.

2018However, [in Williams v. State , 296 Ga. 817 , 821-822, 771 S.E.2d 373 (2015), our Supreme Court] rejected this per se rule automatically equating an affirmative response to the implied consent notice with actual consent to a search within the meaning of the Fourth Amendment.

1996However, “[i]n Sabel v. State, 250 Ga. 640, 643-644 (5) ( 300 SE2d 663 ) (1983), overruled on other grounds Massey v. Meadows, 253 Ga. 389 ( 321 SE2d 703 ) (1984), the Supreme Court held that Boyd did not establish a per se rule, and that the decision of whether such statements are so prejudicial as to warrant mistrial are [still] within the trial court’s discretion.” Roos v. State, 208 Ga. App. 506, 508 ( 430 SE2d 870 ) (1993).

1996However, “[i]n Sabel v. State, 250 Ga. 640, 643-644 (5) ( 300 SE2d 663 ) (1983), overruled on other grounds Massey v. Meadows, 253 Ga. 389 ( 321 SE2d 703 ) (1984), the Supreme Court held that Boyd did not establish a per se rule, and that the decision of whether such statements are so prejudicial as to warrant mistrial are [still] within the trial court’s discretion.” Roos v. State, 208 Ga. App. 506, 508 ( 430 SE2d 870 ) (1993).

1985While an illegality in the pre-trial identification procedure does not automatically prevent the witness from identifying the defendant during the trial, a per se rule of exclusion does apply to evidence of the illegal lineup identification itself. [Cit.]” Foster v. State, 156 Ga. App. 672, 673-74 (2) ( 275 SE2d 745 ) (1980), citing United States v. Wade, 388 U. S. 218 (87 SC 1926, 18 LE2d 1149) (1967).

1972We quoted and applied the ruling of those cases in the recent case of Butler v. State, 226 Ga. 56 (1) ( 172 SE2d 399 ), where we said: "As was stated in United States v. Wade, 388 U. S. 218 , *166 240, 241 (87 SC 1926, 18 LE2d 1140), 'Where, as here, the admissibility of evidence of the line-up identification itself is not involved, a per se rule of exclusion of courtroom identification would be unjustified ...

2018Hernandez v. New York , 500 U.S. 352 , 361, 111 S.Ct. 1859 , 114 L.Ed.2d 395 (1991) (plurality); id. at 372-375 , 111 S.Ct. 1859 (O'Connor, J., concurring in judgment).

2018Hernandez v. New York , 500 U.S. 352 , 361, 111 S.Ct. 1859 , 114 L.Ed.2d 395 (1991) (plurality); id. at 372-375 , 111 S.Ct. 1859 (O'Connor, J., concurring in judgment).

1996See Short v. State, 256 Ga. 165, 167 (3) ( 345 SE2d 340 ) (1986) regarding the deference on review to be given to the trial court’s conclusions. “[T]he right to silence is not protected by a per se rule of ‘permanent immunity’ against further police-initiated interrogation.” Hatcher v. State, 259 Ga. 274, 277 (2) ( 379 SE2d 775 ) (1989), quoting Michigan v. Mosley, 423 U. S. 96, 103 (96 SC 321, 46 LE2d 313) (1975).

1989Although the right to silence is not protected by a per se rule of “permanent immunity” against further police-initiated interrogation, id., 423 U. S. at 102 , nevertheless, “a suspect’s request to cut off questioning serves as a complete bar to any questioning [initiated by the police] ... for a ‘significant period of time’ after the request.” Christopher v. Florida, 824 F2d 836, 844 (11th Cir. 1987).

1978As we recently held, "[t]he rule under the Fourth Amendment that a warrant be issued by a neutral and detached magistrate requires severance and disengagement from activities of law enforcement.” Baggett v. State, 132 Ga. App. 266 ( 208 SE2d 23 ) (1974), citing Shadwick v. City of Tampa, 407 U. S. 345 (92 SC 2119, 32 LE2d 783) (1972), and applying the per se rule of disqualification of Coolidge v. New Hampshire, 403 U. S. 443 (91 SC 2022, 29 LE2d 564) (1971).

1978As we recently held, "[t]he rule under the Fourth Amendment that a warrant be issued by a neutral and detached magistrate requires severance and disengagement from activities of law enforcement." Baggett v. State, 132 Ga. App. 266 ( 208 SE2d 23 ) (1974), citing Shadwick v. City of Tampa, 407 U. S. 345 (92 SC 2119, 32 LE2d 783) (1972), and applying the per se rule of disqualification of Coolidge v. New Hampshire, 403 U. S. 443 (91 SC 2022, 29 LE2d 564) (1971).

2024And in considering the State’s argument that “even if the rape-shield law does not prohibit such testimony, the testimony relates to the victim’s character, which can only be attacked by evidence of the victim’s general reputation for veracity[,]” not by “specific instances of untruthfulness,” id. (citing former OCGA §§ 24- 12 2-2; 24-9-84), we held that “the evidentiary rule preventing evidence of specific acts of untruthfulness must yield to the defendant’s right of confrontation and right to present a full defense.” Id.3 As we observed in Burns II, with this “constitutional” holding in Smit

2024The only check recognized in Smith on the per se rule of admissibility was the requirement that, before such evidence can be admitted, the trial court must make a threshold 20 determination “that a reasonable probability of falsity exists.” Smith, 259 Ga. at 137 (citation and punctuation omitted).

2023While the reasonableness standard for a forceful entry is not high, that testimony is simply inadequate to establish reasonable grounds to believe that, in this case, forewarning would have either greatly increased the officers’ peril or led to the immediate destruction of the evidence.19 Significantly, this Court emphasized that, to find exigent circumstances under the facts of Poole “would amount to the adoption of a per se rule that once law enforcement officers realize that an occupant of the premises to be searched for drugs has discovered the officers’ presence outside the premises, the

2023While the reasonableness standard for a forceful entry is not high, that testimony is simply inadequate to establish reasonable grounds to believe that, in this case, forewarning would have either greatly increased the officers’ peril or led to the immediate destruction of the evidence.19 Significantly, this Court emphasized that, to find exigent circumstances under the facts of Poole “would amount to the adoption of a per se rule that once law enforcement officers realize that an occupant of the premises to be searched for drugs has discovered the officers’ presence outside the premises, the

2023The State argues that the presence of the no-knock provision in the search warrant is irrelevant because Hughes did not claim that there was an actual no-knock entry, and she was standing outside her residence and officers gave visual and verbal notice of their purpose and authority prior to entering.23 22 See Smith, 219 Ga. App. at 905-906 (holding that there was no evidence of exigent circumstances sufficient to dispense with the general requirement that officers give verbal notice of their authority and purpose, even though when officers arrived at the residence to execute the search warran

2023Relying on a decision of the United States Court of Appeals for the Fifth Circuit that similarly declined to apply a per se rule excluding evidence of a juvenile’s incriminating statements to the police, the Riley Court went on to say that age alone is not determinative of whether a person can 11 Three years before Riley was decided, this Court summarily held in Williams v. State, 231 Ga. 508 (202 SE2d 433) (1973), that the trial court did not err by admitting into evidence a juvenile’s statement to the police, noting that the statement was made in the presence of his mother and after he was a

2023Relying on a decision of the United States Court of Appeals for the Fifth Circuit that similarly declined to apply a per se rule excluding evidence of a juvenile’s incriminating statements to the police, the Riley Court went on to say that age alone is not determinative of whether a person can 11 Three years before Riley was decided, this Court summarily held in Williams v. State, 231 Ga. 508 (202 SE2d 433) (1973), that the trial court did not err by admitting into evidence a juvenile’s statement to the police, noting that the statement was made in the presence of his mother and after he was a

2023The State argues that the presence of the no-knock provision in the search warrant is irrelevant because Hughes did not claim that there was an actual no-knock entry, and she was standing outside her residence and officers gave visual and verbal notice of their purpose and authority prior to entering.23 22 See Smith, 219 Ga. App. at 905-906 (holding that there was no evidence of exigent circumstances sufficient to dispense with the general requirement that officers give verbal notice of their authority and purpose, even though when officers arrived at the residence to execute the search warran

2023The State argues that the presence of the no-knock provision in the search warrant is irrelevant because Hughes did not claim that there was an actual no-knock entry, and she was standing outside her residence and officers gave visual and verbal notice of their purpose and authority prior to entering.23 22 See Smith, 219 Ga. App. at 905-906 (holding that there was no evidence of exigent circumstances sufficient to dispense with the general requirement that officers give verbal notice of their authority and purpose, even though when officers arrived at the residence to execute the search warran

2023The State argues that the presence of the no-knock provision in the search warrant is irrelevant because Hughes did not claim that there was an actual no-knock entry, and she was standing outside her residence and officers gave visual and verbal notice of their purpose and authority prior to entering.23 22 See Smith, 219 Ga. App. at 905-906 (holding that there was no evidence of exigent circumstances sufficient to dispense with the general requirement that officers give verbal notice of their authority and purpose, even though when officers arrived at the residence to execute the search warran

2023The State argues that the presence of the no-knock provision in the search warrant is irrelevant because Hughes did not claim that there was an actual no-knock entry, and she was standing outside her residence and officers gave visual and verbal notice of their purpose and authority prior to entering.23 22 See Smith, 219 Ga. App. at 905-906 (holding that there was no evidence of exigent circumstances sufficient to dispense with the general requirement that officers give verbal notice of their authority and purpose, even though when officers arrived at the residence to execute the search warran