Blige v. State, 430 S.E.2d 761 (Ga. 1993). · Go Syfert
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Blige v. State, 430 S.E.2d 761 (Ga. 1993). Cases Citing This Book View Copy Cite
“it is a basic tenet of trial procedure that counsel cannot argue facts not in evidence.”
38 citation events (12 in the last 25 years) across 2 distinct courts.
Strongest positive: Rivera v. State (ga, 2007-06-25)
Treatment trajectory · 1993 → 2026 · click a year to view as-of
1993 2009 2026
Top citers, strongest first. 10 distinct citers.
discussed Cited as authority (quoted) Rivera v. State (2×) also: Cited as authority (rule)
Ga. · 2007 · quote attribution · 1 verbatim quote · confidence low
it is a basic tenet of trial procedure that counsel cannot argue facts not in evidence.
discussed Cited as authority (rule) Volkova v. State (2×)
Ga. · 2021 · confidence medium
Volkova attempts to circumvent this precedent by relying on Blige v. State, 263 Ga. 244, 245 (2) (430 SE2d 761) (1993), for the proposition that, in order for a prosecutor “to comment concerning the failure of a defendant to call a particular expert witness, the existence of that expert witness must be in evidence, as well as the fact that the defense has been 22 provided with materials to be analyzed by that expert witness.” (Citation omitted.) But no such comment was made here.
discussed Cited as authority (rule) BROWN v. TUCKER; And Vice Versa
Ga. Ct. App. · 2016 · confidence medium
She contends that under the authority of Blige v. State, 264 Ga. 166, 168 (2) ( 441 SE2d 752 ) (1994) (Blige 4) and Blige v. State, 263 Ga. 244, 245 (2) ( 430 SE2d 761 ) (1993) (Blige 2), 3 she should have been allowed to introduce foundation evidence that Tucker had hired an expert but did not call him and to argue the negative inference arising from Tucker’s failure to call that expert.
discussed Cited as authority (rule) Reeves v. the State
Ga. Ct. App. · 2014 · confidence medium
If the goods found in the possession of the defendant are not shown to be that which [have] in fact been stolen, proof of larcenous taking is absent.”; officer’s testimony that radio dispatch identified pistol as stolen was nonprobative hearsay) (citation and punctuation omitted). 13 466 U. S. 668 ( 104 SCt 2052 , 80 LE2d 674) (1984). 14 Cannon v. State, 288 Ga. 225, 229 (6) ( 702 SE2d 845 ) (2010) (citations and punctuation omitted). 15 Id. at 230 (6) (c) (citation and punctuation omitted). 16 Ledford v. State, 289 Ga. 70, 88 (22) (d) ( 709 SE2d 239 ) (2011); see Cannon, supra at 230-231 …
discussed Cited as authority (rule) Lee v. State (2×)
Ga. · 1995 · confidence medium
Because it is permissible to argue unfavorable inferences when a defendant fails to produce a witness after his testimony indicates that persons with relevant information may exist, Dorsey v. State, 204 Ga. 345 (3) ( 49 SE2d 886 ) (1945) (see also Blige v. State, 263 Ga. 244, 245, n. 1 ( 430 SE2d 761 ) (1993)), we conclude that the State's comment was not improper on the ground asserted at trial. 5.
cited Cited as authority (rule) Rower v. State
Ga. · 1994 · confidence medium
We have noted that the rule set out in Sabel “is based on the reciprocal requirement placed on the state by OCGA § 17-7-211.” Blige v. State, 263 Ga. 244, 245, n. 2 ( 430 SE2d 761 ) (1993).
discussed Cited "see" Schlanger v. State (2×)
Ga. Ct. App. · 2008 · signal: see · confidence high
See Blige v. State, 263 Ga. 244, 245 (2) ( 430 SE2d 761 ) (1993) (before a party can comment on the opposing side’s failure to produce certain evidence, the existence of that evidence must first be placed into evidence).
discussed Cited "see" Morgan v. State (2×)
Ga. · 1996 · signal: see · confidence high
See Blige v. State, 263 Ga. 244 (2) ( 430 SE2d 761 ) (1993).
discussed Cited "see" Miller v. State (2×)
Ga. Ct. App. · 1995 · signal: see · confidence high
See Blige v. State, 263 Ga. 244 ( 430 SE2d 761 ) (1993).
discussed Cited "see, e.g." Ross v. State (2×)
Ga. Ct. App. · 1998 · signal: see, e.g. · confidence low
See, e.g., Blige v. State, 263 Ga. 244 (1) ( 430 SE2d 761 ) (1993).
Blige
v.
the State
S92G1376.
Supreme Court of Georgia.
Jun 28, 1993.
430 S.E.2d 761
Mark J. Nathan, for appellant., Spencer Lawton, Jr., District Attorney, David T. Lock, Assistant District Attorney, for appellee.
Fletcher, Hunstein, Carley.
Cited by 18 opinions  |  Published
1 passage pin-cited by 1 case
Pinpoint authority: bottom 66%
Citer courts: Supreme Court of Georgia (1)
Fletcher, Justice.

Nathaniel Blige was convicted by a jury of armed robbery, aggravated battery and burglary. He appealed the judgment of conviction and the denial of his motion for new trial to the Court of Appeals where both were affirmed. Blige v. State, 205 Ga. App. 133 (421 SE2d 547) (1992). We granted Blige’s application for a writ of certiorari to consider Div. 6 of the Court of Appeals’ opinion to determine whether the state should be permitted to argue to a jury that a defendant would have called his or her own expert witness if the results of the expert’s testing had been favorable.

1. During closing arguments, the state made several remarks concerning expert fingerprint evidence and Blige’s lack of proof in rebuttal. Specifically, the state argued:

If he could dispute those fingerprints, where is his expert? He had something that could be examined, where is he at?
They could have brought somebody in to dispute the fingerprints, if they can be disputed.
No fingerprint expert to dispute the evidence because there’s no disputing it.

In ruling that the aforesaid argument was permissible under Sabel v. State, 248 Ga. 10 (282 SE2d 61) (1981), the Court of Appeals did not have the benefit of a transcript of the actual comments made by the state. We have been provided with a transcript of the state’s closing argument and having reviewed that argument have concluded that the state’s argument is not a reference to Blige’s failure to call[*245] his own expert witness, but is only a comment on the defense’s failure to rebut the state’s fingerprint evidence. Ingram v. State, 253 Ga. 622, 634 (8) (323 SE2d 801) (1984). This was a permissible argument in this case, but for reasons other than those enunciated by the Court of Appeals.

Decided June 28, 1993. Mark J. Nathan, for appellant.

2. Relying on Sabel, the Court of Appeals held that the state is allowed to argue that Blige would have called the expert if the results of the expert’s testing had been favorable. Although this tactic is permitted under Sabel, the state must still lay the same foundation for this argument as would be required for any argument counsel wishes to make to the jury. It is a basic tenet of trial procedure that counsel cannot argue facts not in evidence. Montos v. State, 212 Ga. 764, 768 (95 SE2d 792) (1956). In order to comment concerning the failure of a defendant to call a particular expert witness, the existence of that expert witness must be in evidence, Shirley v. State, 245 Ga. 616 (266 SE2d 218) (1980), [1] as well as the fact that the defense has been provided with materials to be analyzed by that expert witness. Thus, we disapprove any language in Div. 6 of the Court of Appeals’ opinion which could be construed to mean that such argument may be made without the proper foundation having first been laid.

3. Blige also contends that the trial court erred when it required him to reveal the name of his expert and provide the state with a copy of his expert’s report. The holding in Sabel expressly authorizes such disclosure. Sabel, 248 Ga. at 18. See also Caldwell v. State, 260 Ga. 278 (4) (393 SE2d 436) (1990). [2]

Judgment affirmed.

All the Justices concur, except Hunstein and Carley, JJ., who concur as to Division 1 and in the judgment. [*246] Spencer Lawton, Jr., District Attorney, David T. Lock, Assistant District Attorney, for appellee.
1

See also Dorsey v. State, 204 Ga. 345 (49 SE2d 886) (1948) (prosecutor properly drew inference drawn from facts recited in accused’s statement and defense’s failure to produce witnesses referred to therein); James v. State, 223 Ga. 677 (157 SE2d 471) (1967) (prosecutor cannot comment on failure to call accused’s wife as witness when wife invokes privilege and therefore is not competent to testify); Rini v. State, 236 Ga. 715 (225 SE2d 234) (1976) (prosecutor properly drew inference in closing when defendant failed to produce a named alibi witness); Contreras v. State, 242 Ga. 369 (249 SE2d 56) (1978) (prosecutor properly drew inference in closing after defense identified but did not call alleged favorable witness); Couch v. State, 253 Ga. 764 (325 SE2d 366) (1985) (prosecutor properly drew inference in closing after defense referred to witness in opening but did not produce that witness).

2

The rule in Sabel requiring a defendant to provide the name of his or her expert and a report of the expert’s findings to the state is based on the reciprocal requirement placed on the state by OCGA § 17-7-211. That rule applies equally to both indigent and non-indigent defendants and, as a result, a trial court cannot require a defendant to provide a copy of his or her expert’s written report to the state merely because the state is providing the funds.