O.C.G.A. § 15-12-140 (2019)

Annotations

Cross references. - Selection of bailiffs by sheriff, § 15-6-35.

JUDICIAL DECISIONS Term ‘‘bailiff’’ means person to whom some authority, care, guardianship, or jurisdiction is entrusted. Hannah v. State, 212 Ga. 313, 92 S.E.2d 89 (1956). ‘‘Bailiff’’ does not refer to a separate and distinct ‘‘public officer.’’ A court bailiff does not have any term of office as such court bailiff; the court bailiff acts only during the term at which the court bailiff is sworn; the court bailiff is not under bond as a court bailiff; and the court bailiff receives no commission as a court bailiff. Hannah v. State, 212 Ga. 313, 92 S.E.2d 89 (1956). If deputy acting as bailiff had charge of jury without being sworn, new trial will be granted. Roberts v. State, 72 Ga. 673 (1884); Washington v. State, 138 Ga. 370, 75 S.E. 253 (1912). Custody of jury during deliberations. - This section constitutes the only specific directions as to persons authorized to have custody of a jury during their deliberations. Hannah v. State, 212 Ga. 313, 92 S.E.2d 89 (1956). Who may qualify as bailiff. - Sheriff, a deputy sheriff, a town marshal, and many other officers, officials, and citizens may properly take custody and control of a petit jury during their deliberations, but they must first be administered, and must take, the oath prescribed by this section. Hannah v. State, 212 Ga. 313, 92 S.E.2d 89 (1956). Failure of bailiff to take oath prescribed is ground for grant of new trial. Meyers v. Clark, 100 Ga. App. 845, 112 S.E.2d 300 (1959). Presumption that bailiff sworn. - If bailiffs take charge of juries there is a presumption that the bailiffs were sworn. Mere negative testimony of bailiff that the bailiff cannot recollect taking oath will not require finding that the bailiff did not do so. Jackson v. State, 152 Ga. 210, 108 S.E. 784 (1921).

Defendant bore the burden of showing affirmatively that bailiffs were not sworn in order to overcome the presumption that the bailiffs were regularly sworn, and defendant’s affidavit that the defendant did not see the trial court swear the bailiffs during trial was not sufficient. Wilson v. State, 227 Ga. App. 59, 488 S.E.2d 121 (1997). Fact that oath was not administered must affirmatively appear. Johnson v. State, 27 Ga. App. 679, 109 S.E. 526 (1921). Communication with jury. - Bailiff is to make no communication to the jury and is to permit no one to communicate with the jury except by leave of court. Battle v. State, 234 Ga. 637, 217 S.E.2d 255 (1975). Duty to ensure isolation of jury. - It is the duty of the bailiff under the bailiff ’s oath when juries have been sequestered to ensure at all times integrity of the jury’s isolation and to prevent any untoward influence upon the jury which may influence the jury’s decision and degrade an accused’s constitutional right to a fair and impartial trial. Whitlock v. State, 230 Ga. 700, 198 S.E.2d 865 (1973). Bailiff has duty to look after jury at all times and to remain awake with the jury at all times while the jurors are in the bailiff ’s care; the bailiff ’s failure to do so by leaving the jury and going to bed in a separate room constitutes such misconduct as to entitle the defendant to a new trial. Blount v. State, 214 Ga. 433, 105 S.E.2d 304 (1958); Edwards v. State, 214 Ga. 436, 105 S.E.2d 307 (1958). Questions asked by jury. - If the bailiff reports to the court a question asked by the jury, the court may direct the bailiff to inform the jurors that the jurors would have to decide the case in accordance with the court’s charge. Williams v.

Douglas County School Dist., 168 Ga. App. 368, 309 S.E.2d 386 (1983). Communication from bailiff to jury. - If communication from bailiff to jury is shown, burden is on state to rebut presumption of harm. Testimonial evidence can be utilized to rebut presumption of harm. Battle v. State, 234 Ga. 637, 217 S.E.2d 255 (1975). Fact that jurors are allowed to have drink other than water, without permission of trial judge, does not require new trial unless prejudicial. Burnett v. Doster, 144 Ga. App. 443, 241 S.E.2d 319 (1978). State’s witness may not enter jury room. - It is error for a state’s witness, particularly the chief law enforcement officer of the county (i.e., the sheriff ), to enter the jury room while the jury room is occupied by the jurors empaneled to decide the case. McMichael v. State, 252 Ga. 305, 313 S.E.2d 693 (1984), overruling Daniel v. State, 187 Ga. 411, 1 S.E.2d 6 (1939). Improper bailiff and juror commu-

nication requires new trial. - Since defendant’s counsel proved an improper communication between the bailiff and a juror, and the state did nothing to rebut the presumed harm, the trial court erred in not granting a new trial. Mercer v. State, 169 Ga. App. 723, 314 S.E.2d 729 (1984). Telephone calls by jurors. - If an affidavit, unrebutted, demands a conclusion that jurors called out on the telephone in the jury room and that three or four incoming calls were received, and nothing is said about the subject matter of the calls, this is at least prima facie harmful to the defendant so as to demand a reversal of the case. Wellmaker v. State, 124 Ga. App. 37, 183 S.E.2d 62 (1971). Cited in Broughton v. State, 186 Ga. 588, 199 S.E. 111 (1938); Smith v. State, 218 Ga. 216, 126 S.E.2d 789 (1962); National Life & Accident Ins. Co. v. Fender, 144 Ga. App. 6, 240 S.E.2d 555 (1977); Keen v. State, 164 Ga. App. 81, 296 S.E.2d 91 (1982).

OPINIONS OF THE ATTORNEY GENERAL Full time deputy sheriffs may serve as courtroom bailiffs. 1987 Op. Att’y Gen. No. U87-24. RESEARCH REFERENCES ALR. - Propriety and prejudicial effect, in criminal case, of placing jury in

charge of officer who is a witness in the case, 38 ALR3d 1012.