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O.C.G.A. § 17-17-9 — Exclusion of testifying victim from criminal proceedings; separate victims' waiting areas | Georgia Code
O.C.G.A. § 17-17-9 (2018) Copy Cite Official Site Syfertize CourtListener Scholar Amendments

TITLE 17 CRIMINAL PROCEDURE

Section 17. Crime Victims' Bill of Rights, 17-17-1 through 17-17-16.

ARTICLE 2 MISDEMEANOR CASES

17-17-9. Exclusion of testifying victim from criminal proceedings; separate victims' waiting areas.

  1. A victim has the right to be present at all criminal proceedings in which the accused has the right to be present. A victim or member of the immediate family of a victim shall not be excluded from any portion of any hearing, trial, or proceeding pertaining to the offense based solely on the fact that such person is subpoenaed to testify unless it is established that such victim or family member is a material and necessary witness to such hearing, trial, or proceeding and the court finds that there is a substantial probability that such person's presence would impair the conduct of a fair trial. The provisions of this Code section shall not be construed as impairing the authority of a judge to remove a person from a trial or hearing or any portion thereof for the same causes and in the same manner as the rules of court or law provides for the exclusion or removal of the accused. A motion to exclude a victim or family members from the courtroom for any reason other than misconduct shall be made and determined prior to jeopardy attaching.
  2. A victim of a criminal offense who has been or may be subpoenaed to testify at such hearing or trial shall be exempt from the provisions of Code Section 24-6-615 requiring sequestration; provided, however, that the court shall require that the victim be scheduled to testify as early as practical in the proceedings.
  3. If the victim is excluded from the courtroom, the victim shall have the right to wait in an area separate from the accused, from the family and friends of the accused, and from witnesses for the accused during any judicial proceeding involving the accused, provided that such separate area is available and its use in such a manner practical. If such a separate area is not available or practical, the court, upon request of the victim made through the prosecuting attorney, shall attempt to minimize the victim's contact with the accused, the accused's relatives and friends, and witnesses for the accused during any such judicial proceeding.

(Code 1981, §17-17-9, enacted by Ga. L. 1995, p. 385, § 2; Ga. L. 2010, p. 214, § 12/HB 567; Ga. L. 2011, p. 99, § 35/HB 24; Ga. L. 2014, p. 866, § 17/SB 340.)

The 2011 amendment, effective January 1, 2013, substituted "Code Section 24-6-616" for "Code Section 24-9-61" in the middle of subsection (b). See editor's note for applicability.

The 2014 amendment, effective April 29, 2014, part of an Act to revise, modernize, and correct the Code, substituted "Code Section 24-6-615" for "Code Section 24-6-616" in subsection (b).

Code Commission notes.

- Pursuant to Code Section 28-9-5, in 2010, "the" was inserted preceding "same manner" in the third sentence of subsection (a).

Editor's notes.

- Ga. L. 2011, p. 99, § 101/HB 24, not codified by the General Assembly, provides that this Act shall apply to any motion made or hearing or trial commenced on or after January 1, 2013.

Law reviews.

- For article on the 2011 amendment of this Code section, see 28 Ga. St. U.L. Rev. 1 (2011).

JUDICIAL DECISIONS

Victim's right to be present at trial.

- Trial court did not commit reversible error when the court permitted the state to bring the first victim into the courtroom because evidence of the first victim's condition was clearly relevant to the state's cruelty to children in the first and second degree charges, including that the defendant caused the first victim bodily harm by rendering the first victim's brain, a member of the first victim's body, useless by violently shaking the victim, causing permanent brain damage; the probative value of viewing the victim was not substantially outweighed by the danger of unfair prejudice; and under the Crime Victims' Bill of Rights statute, O.C.G.A. § 17-17-1 et seq., the first victim had the right to be present at the trial. Freeman v. State, 333 Ga. App. 6, 775 S.E.2d 258 (2015).

Victim could testify after being present during trial.

- Trial court did not abuse the court's discretion in allowing the victim to testify as a rebuttal witness after the defendant testified, after the victim had remained in the courtroom for the entire trial. Percell v. State, 346 Ga. App. 219, 816 S.E.2d 344 (2018).

Cited in Davis v. State, 299 Ga. 180, 787 S.E.2d 221 (2016).

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