continuing witness rule in Georgia

2026For example, Rucker makes four claims of ineffective assistance of counsel during trial, but cites only a single case, Rainwater v. State, 300 Ga. 800, 804 (3) ( 797 SE2d 889 ) (2017), to assert that re-reading stipulations during the jury charge violated the continuing witness rule, and that case offers no support for that contention.

2026For example, Rucker makes four claims of ineffective assistance of counsel during trial, but cites only a single case, Rainwater v. State, 300 Ga. 800, 804 (3) ( 797 SE2d 889 ) (2017), to assert that re-reading stipulations during the jury charge violated the continuing witness rule, and that case offers no support for that contention.

2023Since the evidence 4 “[I]t is well established that the continuing witness rule is inapplicable where the document at issue is original documentary evidence or where the document is non-testimonial in nature because it was not a reduction of or substitute for a person’s oral statements or testimony.” (Citation and punctuation omitted.) Pattarozzi v. State, 358 Ga. App. 675 , 679 ( 856 SE2d 51 ) (2021). 12 contained in the statement was also brought out during the trial and the evidence of guilt was overwhelming, there was no harm.” Kent v. State, 245 Ga. App. 531, 533 (3) ( 538 SE2d 185 ) (200

2023Since the evidence 4 “[I]t is well established that the continuing witness rule is inapplicable where the document at issue is original documentary evidence or where the document is non-testimonial in nature because it was not a reduction of or substitute for a person’s oral statements or testimony.” (Citation and punctuation omitted.) Pattarozzi v. State, 358 Ga. App. 675 , 679 ( 856 SE2d 51 ) (2021). 12 contained in the statement was also brought out during the trial and the evidence of guilt was overwhelming, there was no harm.” Kent v. State, 245 Ga. App. 531, 533 (3) ( 538 SE2d 185 ) (200

2025To “avoid placing undue emphasis on written testimony,” the continuing-witness rule prohibits written statements from going back with the jury “to be read and reread during its deliberations” and instead treats written evidence “like oral testimony that the jury hears only once from a witness.” Roberts v. State, 282 Ga. 548, 552 (2007) (citation and punctuation omitted). 8 The continuing-wit- ness rule does not apply to photographs, which are “not written tes- timony and d[o] not derive their evidentiary value solely from the credibility of their makers.” Davis v. State, 285 Ga. 343, 348 (2009

2024But, it is unfair and places undue emphasis on written testimony for the writing to go out with the jury to be read again during deliberations, while oral testimony is received but once.12 Typically, the types of documents that “have been held subject to the rule include affidavits, depositions, written confessions, statements, and dying declarations.”13 But importantly, the continuing-witness rule is “inapplicable where the document at issue is original documentary evidence or [when] the document is non-testimonial in nature because it was not a reduction of or substitute for a person’s oral

2025To “avoid placing undue emphasis on written testimony,” the continuing-witness rule prohibits written statements from going back with the jury “to be read and reread during its deliberations” and instead treats written evidence “like oral testimony that the jury hears only once from a witness.” Roberts v. State, 282 Ga. 548, 552 (2007) (citation and punctuation omitted). 8 The continuing-wit- ness rule does not apply to photographs, which are “not written tes- timony and d[o] not derive their evidentiary value solely from the credibility of their makers.” Davis v. State, 285 Ga. 343, 348 (2009

2014Accord Roberts v. State, 282 Ga. 548, 552-553 (10) ( 651 SE2d 689 ) (2007) (allowing portion of a document examiner’s report which stated conclusory opinions consistent with his trial testimony to go out with the jury violated the continuing witness rule, but the error was harmless because the report was brief and less detailed than the witness’s oral testimony).

2023To the contrary, documents similar to the deputy’s training certificates are considered merely documentary evidence of an event itself (i.e., prima facie evidence of completing the training), as opposed to written testimonial accounts of witnesses, which do violate the continuing witness rule.62 As a result, any continuing-witness objection to the deputy’s training certificates would 61 Rainwater, 300 Ga. at 803 (2) (punctuation omitted); accord Davis, 285 Ga. at 348 (8). 62 See Dockery v. State, 287 Ga. 275, 276-77 (4) ( 695 SE2d 599 ) (2010) (holding that photographic lineup file, containing

2023To the contrary, documents similar to the deputy’s training certificates are considered merely documentary evidence of an event itself (i.e., prima facie evidence of completing the training), as opposed to written testimonial accounts of witnesses, which do violate the continuing witness rule.62 As a result, any continuing-witness objection to the deputy’s training certificates would 61 Rainwater, 300 Ga. at 803 (2) (punctuation omitted); accord Davis, 285 Ga. at 348 (8). 62 See Dockery v. State, 287 Ga. 275, 276-77 (4) ( 695 SE2d 599 ) (2010) (holding that photographic lineup file, containing

2014(Citations and punctuation omitted.) Griffin v. State, 292 Ga. 321, 324 (6) ( 737 SE2d 682 ) (2013). “[A]n insufficient showing on either of [the Strickland] prongs relieves the reviewing court of the need to address the other prong.” (Citation and punctuation omitted.) Fuller v. State, 277 Ga. 505, 507 (3) ( 591 SE2d 782 ) (2004). (a) Jackson asserts that counsel was ineffective in failing to object to the admission of the letter S. C. gave to her mother in which she made her initial outcry, because it was self-serving and bolstered the victim’s testimony. 3 In the same enumeration, he compla

2014(Citations and punctuation omitted.) Griffin v. State, 292 Ga. 321, 324 (6) ( 737 SE2d 682 ) (2013). “[A]n insufficient showing on either of [the Strickland] prongs relieves the reviewing court of the need to address the other prong.” (Citation and punctuation omitted.) Fuller v. State, 277 Ga. 505, 507 (3) ( 591 SE2d 782 ) (2004). (a) Jackson asserts that counsel was ineffective in failing to object to the admission of the letter S. C. gave to her mother in which she made her initial outcry, because it was self-serving and bolstered the victim’s testimony. 3 In the same enumeration, he compla

2024But, it is unfair and places undue emphasis on written testimony for the writing to go out with the jury to be read again during deliberations, while oral testimony is received but once.12 Typically, the types of documents that “have been held subject to the rule include affidavits, depositions, written confessions, statements, and dying declarations.”13 But importantly, the continuing-witness rule is “inapplicable where the document at issue is original documentary evidence or [when] the document is non-testimonial in nature because it was not a reduction of or substitute for a person’s oral

2024But, it is unfair and places undue emphasis on written testimony for the writing to go out with the jury to be read again during deliberations, while oral testimony is received but once.12 Typically, the types of documents that “have been held subject to the rule include affidavits, depositions, written confessions, statements, and dying declarations.”13 But importantly, the continuing-witness rule is “inapplicable where the document at issue is original documentary evidence or [when] the document is non-testimonial in nature because it was not a reduction of or substitute for a person’s oral

2024The rule has no application to the replaying of recorded statements . . . during closing arguments.” Clark v. State, 296 Ga. 543, 549 (769 SE2d 376) (2015) (rejecting the appellant’s argument that the trial court violated the continuing witness rule by allowing his video-recorded statement to the police, which had been admitted into evidence, to 6 We note that the continuing witness rule was unaffected by the enactment of the current Evidence Code.

2024The rule has no application to the replaying of recorded statements . . . during closing arguments.” Clark v. State, 296 Ga. 543, 549 (769 SE2d 376) (2015) (rejecting the appellant’s argument that the trial court violated the continuing witness rule by allowing his video-recorded statement to the police, which had been admitted into evidence, to 6 We note that the continuing witness rule was unaffected by the enactment of the current Evidence Code.

2026See also Adams v. State, 284 Ga. App. 534, 536-537 (2007) (holding that it did not violate the continuing witness rule to allow a blood test report from the crime lab to go out with the jury, as the report was “direct evidence of the manner in which a scientific test was conducted and of the results thereby obtained” and that “[t]he proscription on the jury’s possession of written 19 testimony does not extend to documents which are themselves relevant and admissible as original documentary evidence in a case” (quotation marks omitted)); Tanner v. State, 259 Ga. App. 94, 98 (2003) (same).

2026See also Adams v. State, 284 Ga. App. 534, 536-537 (2007) (holding that it did not violate the continuing witness rule to allow a blood test report from the crime lab to go out with the jury, as the report was “direct evidence of the manner in which a scientific test was conducted and of the results thereby obtained” and that “[t]he proscription on the jury’s possession of written 19 testimony does not extend to documents which are themselves relevant and admissible as original documentary evidence in a case” (quotation marks omitted)); Tanner v. State, 259 Ga. App. 94, 98 (2003) (same).

2024In addition to having been decided over a decade before the discussion of text messages and the continuing witness rule in Clarke, 308 Ga. at 636 (4), and Keller, 308 Ga. at 505-506 (9), Davis determined that documents including “letters, photographs and a death certificate” were properly allowed to go out with the jury.

2023Accord Moore, 311 Ga. at 511-512 (holding that the continuing witness rule did not apply to a computer presentation prepared by a detective that summarized cell phone records that had been admitted into evidence); Clarke, 308 Ga. at 636-637 (holding that the continuing witness rule did not apply to a printout of text messages that the defendant had sent to the victim and which had been read to the jury during trial); Windhom v. State, 326 Ga. App. 212, 214-215 (756 SE2d 296) (2014) (holding that the trial court did not violate the continuing witness rule by allowing a surveillance video to go

2012See Bollinger v. State, 272 Ga. App. 688, 692 (2) ( 613 SE2d 209 ) (2005) (holding that allowing letters written by defendant to go into jury room during deliberations did not violate the continuing-witness rule); Vinyard v. State, 177 Ga. App. 188, 190 (1) ( 338 SE2d 766 ) (1985) (holding that letter written by defendant’s brother and sent from prison did not violate continuing-witness rule).

2012See Bollinger v. State, 272 Ga. App. 688, 692 (2) ( 613 SE2d 209 ) (2005) (holding that allowing letters written by defendant to go into jury room during deliberations did not violate the continuing-witness rule); Vinyard v. State, 177 Ga. App. 188, 190 (1) ( 338 SE2d 766 ) (1985) (holding that letter written by defendant’s brother and sent from prison did not violate continuing-witness rule).

2006Broadnax-Woodland v. State, 265 Ga. App. 669, 670 ( 595 SE2d 350 ) (2004) (allowing prior consistent statement to go out with the jury violated the continuing witness rule). 1 4.

2006Broadnax-Woodland v. State, 265 Ga. App. 669, 670 ( 595 SE2d 350 ) (2004) (allowing prior consistent statement to go out with the jury violated the continuing witness rule). 1 4.

2023To the contrary, documents similar to the deputy’s training certificates are considered merely documentary evidence of an event itself (i.e., prima facie evidence of completing the training), as opposed to written testimonial accounts of witnesses, which do violate the continuing witness rule.62 As a result, any continuing-witness objection to the deputy’s training certificates would 61 Rainwater, 300 Ga. at 803 (2) (punctuation omitted); accord Davis, 285 Ga. at 348 (8). 62 See Dockery v. State, 287 Ga. 275, 276-77 (4) ( 695 SE2d 599 ) (2010) (holding that photographic lineup file, containing

2023To the contrary, documents similar to the deputy’s training certificates are considered merely documentary evidence of an event itself (i.e., prima facie evidence of completing the training), as opposed to written testimonial accounts of witnesses, which do violate the continuing witness rule.62 As a result, any continuing-witness objection to the deputy’s training certificates would 61 Rainwater, 300 Ga. at 803 (2) (punctuation omitted); accord Davis, 285 Ga. at 348 (8). 62 See Dockery v. State, 287 Ga. 275, 276-77 (4) ( 695 SE2d 599 ) (2010) (holding that photographic lineup file, containing

2023See Ross v. State, 344 Ga. App. 477 , 479-482 (2) ( 810 SE2d 645 ) (2018) (trial court erred in allowing jury to replay defendant’s taped statement in the jury room during deliberations, in violation of the continuing witness rule); Summage v. State, 248 Ga. App. 559, 561 (1) ( 546 SE2d 910 ) (2001) (trial court erred by allowing victim’s videotaped statement to go to the jury room).

2023See Ross v. State, 344 Ga. App. 477 , 479-482 (2) ( 810 SE2d 645 ) (2018) (trial court erred in allowing jury to replay defendant’s taped statement in the jury room during deliberations, in violation of the continuing witness rule); Summage v. State, 248 Ga. App. 559, 561 (1) ( 546 SE2d 910 ) (2001) (trial court erred by allowing victim’s videotaped statement to go to the jury room).

2026The continuing witness rule “regulates which documents or recordings go into the jury room with the jury during deliberations and which ones do not.” Lofton v. State, 310 Ga. 770, 785 (2021) (quotation marks omitted), disapproved in part on other grounds by Outlaw v. State, 311 Ga. 396 , 401 n.5 (2021).

2026The continuing witness rule “regulates which documents or recordings go into the jury room with the jury during deliberations and which ones do not.” Lofton v. State, 310 Ga. 770, 785 (2021) (quotation marks omitted), disapproved in part on other grounds by Outlaw v. State, 311 Ga. 396 , 401 n.5 (2021).

2026See also Adams v. State, 284 Ga. App. 534, 536-537 (2007) (holding that it did not violate the continuing witness rule to allow a blood test report from the crime lab to go out with the jury, as the report was “direct evidence of the manner in which a scientific test was conducted and of the results thereby obtained” and that “[t]he proscription on the jury’s possession of written 19 testimony does not extend to documents which are themselves relevant and admissible as original documentary evidence in a case” (quotation marks omitted)); Tanner v. State, 259 Ga. App. 94, 98 (2003) (same).

2026See also Adams v. State, 284 Ga. App. 534, 536-537 (2007) (holding that it did not violate the continuing witness rule to allow a blood test report from the crime lab to go out with the jury, as the report was “direct evidence of the manner in which a scientific test was conducted and of the results thereby obtained” and that “[t]he proscription on the jury’s possession of written 19 testimony does not extend to documents which are themselves relevant and admissible as original documentary evidence in a case” (quotation marks omitted)); Tanner v. State, 259 Ga. App. 94, 98 (2003) (same).

2026Tolbert cites Evans v. State, 253 Ga. App. 71 ( 558 SE2d 51 ) (2001), for the contention that this Court “held that submission of such documents to the jury without objection forfeits a critical safeguard.” The Evans case, however, says nothing about critical safeguards, nor does the case analyze the continuing witness rule in any substantive way.

2026Tolbert cites Evans v. State, 253 Ga. App. 71 ( 558 SE2d 51 ) (2001), for the contention that this Court “held that submission of such documents to the jury without objection forfeits a critical safeguard.” The Evans case, however, says nothing about critical safeguards, nor does the case analyze the continuing witness rule in any substantive way.

2026We have explained that “the continuing witness rule is directed at written testimony that is heard by the jury when read from the witness stand,” pointing out that “[t]he rule is based on the principle that it is unfair and places undue emphasis on written testimony that has been read to the jury for the writing to be sent out with the jury to be read again during deliberations whereas oral testimony is received by the jury only 18 once.” Muse v. State, 316 Ga. 639, 659 (2023) (quotation marks omitted).

2026We have explained that “the continuing witness rule is directed at written testimony that is heard by the jury when read from the witness stand,” pointing out that “[t]he rule is based on the principle that it is unfair and places undue emphasis on written testimony that has been read to the jury for the writing to be sent out with the jury to be read again during deliberations whereas oral testimony is received by the jury only 18 once.” Muse v. State, 316 Ga. 639, 659 (2023) (quotation marks omitted).

2023See also Dockery v. State, 308 Ga. App. 502, 506-507 (4) ( 707 SE2d 889 ) (2011) (finding a continuing witness violation harmless where the erroneously admitted evidence was cumulative of evidence that had already been properly admitted).

2023See also Dockery v. State, 308 Ga. App. 502, 506-507 (4) ( 707 SE2d 889 ) (2011) (finding a continuing witness violation harmless where the erroneously admitted evidence was cumulative of evidence that had already been properly admitted).

2023Moore v. State, 311 Ga. 506, 511-512 (4) ( 858 SE2d 676 ) (2021) (a State-created powerpoint presentation that summarized the admitted cell phone evidence was not 5 subject to the continuing witness rule); McKenzie v. State, 300 Ga. App. 469, 473 (3) ( 685 SE2d 333 ) (2009) (continuing witness rule did not apply to a timeline of the defendants’ cell phone activity created by an investigator for the district attorney’s office).

2023Moore v. State, 311 Ga. 506, 511-512 (4) ( 858 SE2d 676 ) (2021) (a State-created powerpoint presentation that summarized the admitted cell phone evidence was not 5 subject to the continuing witness rule); McKenzie v. State, 300 Ga. App. 469, 473 (3) ( 685 SE2d 333 ) (2009) (continuing witness rule did not apply to a timeline of the defendants’ cell phone activity created by an investigator for the district attorney’s office).

2014For this reason, it was not error for the document to go out with the jury. 5 See Young, supra (no continuing witness violation for letter of jailhouse informant to witness to go out with jury); Foster, supra. Therefore, trial counsel “was not deficient when he failed to object to the letter going out with the jury.” Young, supra. Moreover, even if the letter went out with the jury in violation of the continuing witness rule, Jackson has failed to show a reasonable probability that the outcome of the trial would have been different had counsel objected on that ground.

2014For this reason, it was not error for the document to go out with the jury.5 See Young, supra (no continuing witness violation for letter of jailhouse informant to witness to go out with jury); Foster, supra. Therefore, trial counsel “was not deficient when he failed to object to the letter going out with the jury.” Young, supra. Moreover, even if the letter went out with the jury in violation of the continuing witness rule, Jackson has failed to show a reasonable probability that the outcome of the trial would have been different had counsel objected on that ground.

2017Under the standard of Strickland v. Washington, 466 U. S. 668 ( 104 SCt 2052 , 80 LE2d 674) (1984), “[i]n order to prevail on a claim of ineffective assistance of counsel, [Rainwater] must show both that counsel’s performance was deficient, and that the deficient performance was prejudicial to his defense.” (Citations omitted.) Simmons v. State, 299 Ga. 370, 375 (3) ( 788 SE2d 494 ) (2016).

2017Under the standard of Strickland v. Washington, 466 U. S. 668 ( 104 SCt 2052 , 80 LE2d 674) (1984), “[i]n order to prevail on a claim of ineffective assistance of counsel, [Rainwater] must show both that counsel’s performance was deficient, and that the deficient performance was prejudicial to his defense.” (Citations omitted.) Simmons v. State, 299 Ga. 370, 375 (3) ( 788 SE2d 494 ) (2016).

2014Mathews v. State, 258 Ga. App. 29, 31 (1) ( 572 SE2d 719 ) (2002) (citations and punctuation omitted). 4.

2014Mathews v. State, 258 Ga. App. 29, 31 (1) ( 572 SE2d 719 ) (2002) (citations and punctuation omitted). 4.

2024See also Lyons v. State, 309 Ga. 15, 19 (843 SE2d 825) (2020) (explaining that the continuing witness rule “applies to recordings that go back with the jury into the jury room” and holding that the rule did not prevent the re-playing of video- and audio-recorded police interviews in the courtroom at the jury’s request during its deliberations).

2024See also Lyons v. State, 309 Ga. 15, 19 (843 SE2d 825) (2020) (explaining that the continuing witness rule “applies to recordings that go back with the jury into the jury room” and holding that the rule did not prevent the re-playing of video- and audio-recorded police interviews in the courtroom at the jury’s request during its deliberations).

2025Accord Moore v. State, 311 Ga. 506, 512 (858 SE2d 676) (2021); Lofton v. State, 310 Ga. 770, 786 (854 SE2d 690) (2021), disapproved on other grounds by Outlaw v. State, 311 Ga. 396, 401 n.5 (858 SE2d 63) (2021); Lyons v. State, 309 Ga. 15, 18 n.3 (843 SE2d 825) (2020); Clarke v. State, 308 Ga. 630, 636 (842 SE2d 863) (2020); Keller v. State, 308 Ga. 492, 506 n.4 (842 SE2d 22) (2020); Rainwater v. State, 300 Ga. 800, 802 n.3 (797 SE2d 889) (2017).

2025Accord Moore v. State, 311 Ga. 506, 512 (858 SE2d 676) (2021); Lofton v. State, 310 Ga. 770, 786 (854 SE2d 690) (2021), disapproved on other grounds by Outlaw v. State, 311 Ga. 396, 401 n.5 (858 SE2d 63) (2021); Lyons v. State, 309 Ga. 15, 18 n.3 (843 SE2d 825) (2020); Clarke v. State, 308 Ga. 630, 636 (842 SE2d 863) (2020); Keller v. State, 308 Ga. 492, 506 n.4 (842 SE2d 22) (2020); Rainwater v. State, 300 Ga. 800, 802 n.3 (797 SE2d 889) (2017).

2014See Kent v. State, 245 Ga. App. 531, 533 (3) ( 538 SE2d 185 ) (2000) (allowing victim’s written statement to go out with jury violated the continuing witness rule, but the error was harmless since the evidence contained therein was brought out during trial and evidence of guilt was overwhelming); Hinton, supra at 214 (1) (allowing portion of the trial transcript reflecting a particular statement made by the defendant to go out with the jury violated the continuing witness rule, but the error was harmless since the defendant’s statement had been repeated several times throughout the trial).

2014See Kent v. State, 245 Ga. App. 531, 533 (3) ( 538 SE2d 185 ) (2000) (allowing victim’s written statement to go out with jury violated the continuing witness rule, but the error was harmless since the evidence contained therein was brought out during trial and evidence of guilt was overwhelming); Hinton, supra at 214 (1) (allowing portion of the trial transcript reflecting a particular statement made by the defendant to go out with the jury violated the continuing witness rule, but the error was harmless since the defendant’s statement had been repeated several times throughout the trial).

2017Under the standard of Strickland v. Washington, 466 U. S. 668 ( 104 SCt 2052 , 80 LE2d 674) (1984), “[i]n order to prevail on a claim of ineffective assistance of counsel, [Rainwater] must show both that counsel’s performance was deficient, and that the deficient performance was prejudicial to his defense.” (Citations omitted.) Simmons v. State, 299 Ga. 370, 375 (3) ( 788 SE2d 494 ) (2016).

2017Under the standard of Strickland v. Washington, 466 U. S. 668 ( 104 SCt 2052 , 80 LE2d 674) (1984), “[i]n order to prevail on a claim of ineffective assistance of counsel, [Rainwater] must show both that counsel’s performance was deficient, and that the deficient performance was prejudicial to his defense.” (Citations omitted.) Simmons v. State, 299 Ga. 370, 375 (3) ( 788 SE2d 494 ) (2016).