O.C.G.A. § 24-5-507 (2019)

Annotations

Law reviews. For article, “Georgia’s Witness Immu-

nity Statute: Explication for Judicial Development,” see 32 Mercer L. Rev. 341 (1980).

JUDICIAL DECISIONS ANALYSIS GENERAL CONSIDERATION GRANT OF IMMUNITY REFUSAL TO TESTIFY General Consideration Editor’s notes. - In light of the similarity of the statutory provisions, decisions under Ga. L. 1975, p. 727, §§ 1 and 2, and former O.C.G.A. § 24-9-28 are included in the annotations for this Code section. Disclosures used in other county. - County prosecutor’s agreement not to make derivative use of defendant’s disclosures of criminal conduct did not prevent prosecutor in another county from making use of those disclosures. Bryant v. State, 164 Ga. App. 555, 296 S.E.2d 792, 1982 Ga. App. LEXIS 2868 (1982) (decided under former O.C.G.A. § 24-9-28). Discretion of court. - It was within the discretion of the trial court to order that a codefendant testify; however, the court abused the court’s discretion in refusing such order based upon the court’s own determination of the credibility of the witness since that issue was reserved for jury determination. State v. Mosher, 265 Ga. 666, 461 S.E.2d 219, 1995 Ga. LEXIS 726 (1995) (decided under former O.C.G.A. § 24-9-28). Grant of Immunity Effect. - Trial court’s grant of an order of immunity pursuant to subsection (a) of

former O.C.G.A. § 24-9-28 removed any right of the witness to invoke the privilege against self-incrimination. Willard v. State, 244 Ga. App. 469, 535 S.E.2d 820, 2000 Ga. App. LEXIS 743 (2000) (decided under former O.C.G.A. § 24-9-28). State’s interest outweighs defense’s need. - When the state was planning to proceed with the prosecution of defendant if defendant decided not to plead guilty, the state’s interest in denying use immunity to defendant outweighed the codefendant’s need for defendant’s testimony in a separate trial. House v. State, 203 Ga. App. 55, 416 S.E.2d 108, 1992 Ga. App. LEXIS 369 (1992), cert. denied, No. S92C0719, 1992 Ga. LEXIS 288 (Ga. Apr. 9, 1992) (decided under former O.C.G.A. § 24-9-28). No denial of due process shown. - There was no denial of due process since the record showed defendant exercised the opportunity to cross-examine a witness and expressly waived defendant’s right for further cross-examination after use immunity was offered to the witness. Eschena v. State, 203 Ga. App. 621, 417 S.E.2d 214, 1992 Ga. App. LEXIS 553 (1992), cert. denied, No. S92C0851, 1992 Ga. LEXIS 564 (Ga. July 8, 1992) (decided under former O.C.G.A. § 24-9-28).

Former statute was limited to proceedings in which the right against self-incrimination can legitimately be raised. Smith v. State, 138 Ga. App. 683, 227 S.E.2d 84, 1976 Ga. App. LEXIS 2282, aff’d, 237 Ga. 647, 229 S.E.2d 433, 1976 Ga. LEXIS 1340 (1976) (decided under Ga. L. 1975, p. 727, §§ 1 and 2). Fact defendant had a pending motion for new trial which, if granted by the trial court or required by the appellate court, would have subjected defendant to the self-incrimination choice once again, did not preclude compelled testimony via immunity in a codefendant’s trial. Lee v. State, 191 Ga. App. 882, 383 S.E.2d 366, 1989 Ga. App. LEXIS 858 (1989) (decided under former O.C.G.A. § 24-9-28). Prosecutor had the power to forego prosecution as long as the promise contained a “description of the crimes or transaction’s ” for which an individual was excused from prosecution and the promise was approved by the court. State v. Dean, 212 Ga. App. 724, 442 S.E.2d 830, 1994 Ga. App. LEXIS 387 (1994), cert. denied, No. S94C1151, 1994 Ga. LEXIS 842 (Ga. July 1, 1994) (decided under former O.C.G.A. § 24-9-28). District attorney, not the trial court, had the discretion to grant immunity to witnesses for the state and there was no provision under which the trial court could have granted immunity to a jail inmate so the inmate could testify as a defense witness in a defendant’s attempted armed robbery trial. Dennard v. State, 313 Ga. App. 419, 721 S.E.2d 610, 2011 Ga. App. LEXIS 1099 (2011) (decided under former O.C.G.A. § 24-9-28). Former statute did not authorize conditional grants of immunity. Corson v. Hames, 239 Ga. 534, 238 S.E.2d 75, 1977 Ga. LEXIS 1236 (1977) (decided under Ga. L. 1975, p. 727, §§ 1 and 2). Former statute authorized only a grant of use and derivative use immunity. Corson v. Hames, 239 Ga. 534, 238 S.E.2d 75, 1977 Ga. LEXIS 1236 (1977) (decided under Ga. L. 1975, p. 727, §§ 1 and 2). “Use and derivative use” immunity. - It was the intention of the General Assembly to grant “use and derivative use” immunity. Brooks v. State, 238 Ga.

435, 233 S.E.2d 208, 1977 Ga. LEXIS 1051 (1977) (decided under Ga. L. 1975, p. 727, §§ 1 and 2). State was not required to seek “use immunity” for defendant’s alibi witness. Hampton v. State, 308 Ga. 797, 843 S.E.2d 542, 2020 Ga. LEXIS 356 (2020). Former statute did not authorize a grant of transactional immunity, i.e., immunity from prosecution. Corson v. Hames, 239 Ga. 534, 238 S.E.2d 75, 1977 Ga. LEXIS 1236 (1977) (decided under Ga. L. 1975, p. 727, §§ 1 and 2). State was not required to grant immunity to codefendant in return for testimony. In re J.S.S., 168 Ga. App. 340, 308 S.E.2d 855, 1983 Ga. App. LEXIS 2768 (1983) (decided under former O.C.G.A. § 24-9-28). Former statute applied only if witness forfeits a right. - Although the language of former O.C.G.A. § 24-9-28 was theoretically broad enough to encompass all promises to forgo prosecution in exchange for evidence, there was no indication that the legislature intended the statute to apply except to the extraction of information in a situation in which the witness gave up a valuable right; the statute was intended to extend the requisite constitutional protection in such a case. State v. Hanson, 249 Ga. 739, 295 S.E.2d 297, 1982 Ga. LEXIS 1190 (1982) (decided under former O.C.G.A. § 24-928). No common-law transactional immunity existed in Georgia in the sense of the protection of a witness who gave up a valuable right. State v. Hanson, 249 Ga. 739, 295 S.E.2d 297, 1982 Ga. LEXIS 1190 (1982) (decided under former O.C.G.A. § 24-9-28). Transactional immunity flowing from full disclosure of crime was not a matter of right but rested in the discretion of the court, which could determine whether the defendant lived up to defendant’s end of the bargain. Hanson v. State, 161 Ga. App. 536, 287 S.E.2d 764, 1982 Ga. App. LEXIS 1934, aff’d, 249 Ga. 739, 295 S.E.2d 297, 1982 Ga. LEXIS 1190 (1982) (decided under former O.C.G.A. § 24-9-28). Irrelevant that no conviction results. - State may contract with a criminal for the criminal’s exemption from

Grant of Immunity (Cont’d) prosecution whether the party testified against was convicted or not. Hanson v. State, 161 Ga. App. 536, 287 S.E.2d 764, 1982 Ga. App. LEXIS 1934, aff’d, 249 Ga. 739, 295 S.E.2d 297, 1982 Ga. LEXIS 1190 (1982) (decided under former O.C.G.A. § 24-9-28). Conditions under which city may order employees to take polygraph test. - City may, without violating the employees’ privilege against self-incrimination, order fire fighters or police officers to take a polygraph test and may discipline those who do not pass, as long as the employees are not coerced into taking the test, are not required to waive any constitutional rights, and the results are not to serve as a sole ground for any action against the employees, since the privilege against self-incrimination does not prevent a governmental unit from taking non-criminal disciplinary action against an employee on the basis of compelled testimony. Hester v. City of Milledgeville, 777 F.2d 1492, 1985 U.S. App. LEXIS 25198 (11th Cir. 1985) (decided under former O.C.G.A. § 24-9-28). Court cannot grant use immunity at request of defendant. - Trial court did not err in not granting use immunity to the co-indictee as Georgia law does not authorize a trial court to grant use immunity to a witness at the request of a defendant. Brown v. State, 295 Ga. 804, 764 S.E.2d 376, 2014 Ga. LEXIS 751 (2014) (decided under former O.C.G.A. § 24-9-28(a)). Rule that indictments returned by grand jury were not amendable by district attorney was not violated by grant of immunity. Kesler v. State, 249 Ga. 462, 291 S.E.2d 497, 1982 Ga. LEXIS 1147 (1982) (decided under former O.C.G.A. § 24-9-28). Curative instruction removed prejudice of testimony about immunity. - When defendant testified in the trial of defendant’s co-conspirators under a grant of immunity and a witness mentioned that fact in defendant’s trial, even if such mention violated former O.C.G.A. § 24-9-28, a curative instruction was sufficient to remove any potential prejudice.

Robertson v. State, 268 Ga. 772, 493 S.E.2d 697 (decided under former O.C.G.A. § 24-9-28). Refusal to Testify No violation of immunity order occurred when, in trial for murder and hindering apprehension of a criminal, an officer was asked by a prosecutor whether the defendant had testified at a previous trial of another to everything the defendant had told the officer, to which the officer stated no, since the prosecutor was attempting to ensure that the testimony from the previous trial not be used in defendant’s trial, and to clarify officer’s response to an earlier inquiry by defense counsel. Highfield v. State, 246 Ga. 478, 272 S.E.2d 62, 1980 Ga. LEXIS 1171 (1980) (decided under Ga. L. 1975, p. 727, §§ 1 and 2). Appearance of immunized witness. - Defendants were not deprived of their right to effective cross-examination on the basis of the state’s creation of an “unfavorable inference” through the appearance on the witness stand of a witness who had been granted immunity pursuant to subsection (a) of former O.C.G.A. § 24-9-28 and who refused to testify. Willard v. State, 244 Ga. App. 469, 535 S.E.2d 820, 2000 Ga. App. LEXIS 743 (2000) (decided under former O.C.G.A. § 24-9-28). Violation of immunity order found. - Trial court properly found defendant in contempt for refusing to testify against a codefendant after being granted testimonial immunity pursuant to former O.C.G.A. § 24-9-28(a); an evidentiary hearing was not required prior to the grant of immunity, and the immunity removed any Fifth Amendment privilege against self-incrimination. In the Interest of S.U., 269 Ga. App. 306, 603 S.E.2d 790, 2004 Ga. App. LEXIS 1136 (2004) (decided under former O.C.G.A. § 24-9-28). Criminal contempt conviction reversed. - Defendant’s criminal contempt conviction was reversed as the trial court relied on another court’s ex parte immunity grant in ordering defendant to testify and neither court made a finding that defendant’s testimony was “necessary to the public interest” as required by former O.C.G.A. § 24-9-28; the state had to grant

a valid immunity as broad in scope as the privilege it replaced and to show the applicability of that state immunity to the witness. In re Long, 276 Ga. App. 306, 623

S.E.2d 181, 2005 Ga. App. LEXIS 1237 (2005) (decided under former O.C.G.A. § 24-9-28).

RESEARCH REFERENCES ALR. Privilege against self-incrimination as extending to danger of prosecution in other state or country, 59 A.L.R. 895; 82 A.L.R. 1380. Calling upon accused in the presence of jury to produce document in his possession as violation of privilege against selfincrimination, 110 A.L.R. 101. Adequacy of immunity offered as condition of denial of privilege against selfincrimination, 118 A.L.R. 602; 53 A.L.R.2d 1030; 29 A.L.R.5th 1. Promise of immunity or leniency as affecting one’s competency as witness in criminal case, 120 A.L.R. 751. Necessity and sufficiency of assertion of privilege against self-incrimination as condition of statutory immunity of witness from prosecution, 145 A.L.R. 1416. Testimony of incriminating character which witness was compelled to give, by virtue of immunity statute or otherwise, as admissible in a prosecution of the witness for an offense subsequently committed, 157 A.L.R. 428. Waiver of privilege against self-incrimination in exchange for immunity from prosecution as barring reassertion of privilege on account of prosecution in another jurisdiction, 2 A.L.R.2d 631. Power of prosecuting attorney to extend

immunity from prosecution to witness claiming privilege against self-incrimination, 13 A.L.R.2d 1438. Immunity from service of process of nonresident witness appearing in other than strictly judicial proceedings, 35 A.L.R.2d 1353. Sufficiency of witness’s claim of privilege against self-incrimination, 51 A.L.R.2d 1178. Enforceability of plea agreement, or plea entered pursuant thereto, with prosecuting attorney involving immunity from prosecution for other crimes, 43 A.L.R.3d 281. Use in disbarment proceeding of testimony given by attorney in criminal proceeding under grant of immunity, 62 A.L.R.3d 1145. Right of defendant in criminal proceeding to have immunity from prosecution granted to defense witness, 4 A.L.R.4th 617. Prosecutor’s power to grant prosecution witness immunity from prosecution, 4 A.L.R.4th 1221. Propriety, under state constitutional provisions, of granting use or transactional immunity for compelled incriminating testimony - post-Kastigar cases, 29 A.L.R.5th 1.