O.C.G.A.

O.C.G.A. § 17-17-9 (2019)

Exclusion of testifying victim from criminal proceedings; separate victims’ waiting areas

✓ O.C.G.A. — 2019 edition (Public.Resource.Org Release 73)

Code text and O.C.G.A. statutory annotations on this page reflect the 2019 Official Code of Georgia Annotated (Public.Resource.Org Release 73, 2019-08-21; public domain per Georgia v. Public.Resource.Org, 2020). The Syfert case-law annotations in Notes of Decisions, below, are current.

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(a) 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. (b) 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. (c) 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.

History

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.

Annotations

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). Children of deceased victim exempt from sequestration. - Trial court properly excluded the victim’s children from the rule of sequestration as either victims or as immediate family members of a victim under the Crime Victims’ Bill of Rights, O.C.G.A. § 17-17-1 et seq.. Thompson v. State, 843 S.E.2d 794, No. S20A0245, 2020 Ga. LEXIS 369 (2020).

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 even though 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).

Notes of Decisions

Cited in 5 cases (1 in the last 5 years), 2012–2021 · leading case: Thompson v. State, 843 S.E.2d 794 (Ga. 2020).

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Thompson v. State, 843 S.E.2d 794 (Ga. 2020). · cites it 11× “The State requested that Peggy’s children and stepdaughter be excused from the rule under the Crime Victims’ Bill of Rights, in particular OCGA § 17-17-9, as they were qualifying members of the victim’s family under the statute.”

Nicely v. State, 733 S.E.2d 715 (Ga. 2012). · cites it 6× “On appeal, Nicely contends that his father was denied equal protection when the father *789 was excluded from portions of the trial pursuant to the rule of witness sequestration, OCGA § 24-9-61, while the mother of Tayore was permitted to attend the trial pursuant to a statutory…”

Davis v. State, 787 S.E.2d 221 (Ga. 2016). · cites it 2× “3 OCGA § 24-6-616 says, “Subject to the provisions of Code Section 17-17-9 [elaborating on a crime victim’s right to be present during court proceedings], the victim of a criminal offense shall be entitled to be present in any court exercising jurisdiction over such offense.”

Freeman v. the State, 775 S.E.2d 258 (Ga. Ct. App. 2015). · cites it 4× “Furthermore, we also agree with the State that pursuant to OCGA § 17-17-9, referred to as the “Crime Victims’ Bill of Rights,” E.”

Tony Louis Miller, Jr v. State (Ga. Ct. App. 2021). · cites it 4× “]” OCGA § 24-6-616’s exception to the rule of sequestration, however, is subject to OCGA § 17-17-9, which provides in pertinent part: A victim or member of the immediate family of a victim shall not be excluded from .”

Annotations are extracted automatically from the opinions in the Syfert caselaw corpus and ranked by authority, recency, and treatment. Dots show Syfertize treatment of the citing case itself.