O.C.G.A. § 24-6-623 (2019)

Annotations

JUDICIAL DECISIONS ANALYSIS GENERAL CONSIDERATION IMPROPER QUESTIONS HARSH OR INSULTING DEMEANOR General Consideration Editor’s notes. - In light of the similarity of the statutory provisions, decisions under former Civil Code 1895, § 5281, former Civil Code 1910, § 5870, former Code 1933, § 38-1704, and former O.C.G.A. § 24-9-62 are included in the annotations for this Code section. In general. - Right of a witness to be protected from improper questioning must be balanced against the right of parties to a thorough and sifting crossexamination. White v. Knapp, 31 Ga. App. 344, 120 S.E. 796, 1923 Ga. App. LEXIS 941 (1923) (decided under former Civil Code 1910, § 5870); Cohen v. Saffer, 43 Ga. App. 746, 160 S.E. 130, 1931 Ga. App. LEXIS 537 (1931) (decided under former Civil Code 1910, § 5870); Loomis v. State,

78 Ga. App. 153, 51 S.E.2d 13, 1948 Ga. App. LEXIS 706 (1948) (decided under former Code 1933, § 38-1704); Thomas v. State, 85 Ga. App. 868, 70 S.E.2d 131, 1952 Ga. App. LEXIS 845 (1952) (decided under former Code 1933, § 38-1704); Cochran v. Neely, 123 Ga. App. 500, 181 S.E.2d 511, 1971 Ga. App. LEXIS 1281 (1971) (decided under former Code 1933, § 38-1704); Wanzer v. State, 232 Ga. 523, 207 S.E.2d 466, 1974 Ga. LEXIS 994 (1974) (decided under former Code 1933, § 38-1704); Crawford v. State, 144 Ga. App. 622, 241 S.E.2d 492, 1978 Ga. App. LEXIS 1710 (1978), overruled on other grounds, Stephens v. State, 245 Ga. 835, 268 S.E.2d 330, 1980 Ga. LEXIS 955 (1980) (decided under former Code 1933, § 38-1704).

General Consideration (Cont’d) Witness’s rights under former O.C.G.A. § 24-9-62 (see now O.C.G.A. §§ 24-6-611 and 24-6-623) must be balanced with the party’s right under former O.C.G.A. § 249-64 (see now O.C.G.A. § 24-6-611) to a thorough and sifting cross-examination. Carco Supply Co. v. Clem, 194 Ga. App. 566, 391 S.E.2d 134, 1990 Ga. App. LEXIS 173 (1990) (decided under former O.C.G.A. § 24-9-62); Palmer v. Taylor, 215 Ga. App. 546, 451 S.E.2d 486, 1994 Ga. App. LEXIS 1299 (1994), cert. denied, No. S95C0589, 1995 Ga. LEXIS 413 (Ga. Mar. 17, 1995) (decided under former O.C.G.A. § 24-9-62). Questioning reluctant witnesses. - It is the privilege of counsel and the duty of courts to propound such questions to reluctant witnesses as will strip the witnesses of the subterfuges to which the witnesses resort to evade telling the truth. Kelly v. State, 19 Ga. 425, 1856 Ga. LEXIS 194 (1856) (decided under former law). Repeated questions. - Trial court properly prevented a defendant from questioning a witness for the fourth time as to whether the witness would tell a lie after the witness had answered the first three times with some variant of the word “no.” Butler v. State, 285 Ga. 518, 678 S.E.2d 92, 2009 Ga. LEXIS 296 (2009) (decided under former O.C.G.A. § 24-962). Improper Questions Protection of witness. - It is the duty of the trial court to protect the witness on cross-examination from being unfairly dealt with. Loomis v. State, 78 Ga. App. 153, 51 S.E.2d 13, 1948 Ga. App. LEXIS 706 (1948) (decided under former Code 1933, § 38-1704). Testing intelligence, memory, accuracy, or veracity. - Question propounded by counsel on cross-examination is allowable for the purpose of testing the intelligence of the witness, or memory, accuracy, and veracity, but must not be argumentative. Loomis v. State, 78 Ga. App. 153, 51 S.E.2d 13, 1948 Ga. App. LEXIS 706 (1948) (decided under former Code 1933, § 38-1704). Illegal or immoral conduct. - Until a foundation showing the relevancy of a

line of questioning is established so as to come within the “other crime” exception, one may not, under the guise of attacking the witness’s credibility, ask questions suggesting illegal or immoral conduct in areas other than that before the court. Lancette v. State, 151 Ga. App. 740, 261 S.E.2d 405, 1979 Ga. App. LEXIS 2778 (1979) (decided under former Code 1933, § 38-1704). Accuracy. - When in a suit on an account, in which the defendant denied receiving a certain portion of the goods, defendant’s evidence was self-contradictory and in some degree inconsistent with the testimony of other witnesses, the trial judge did not abuse the judge’s discretion in permitting counsel for the plaintiff to state to the defendant, by way of crossexamination, “I want to give you one more opportunity to correct your statement that you did not receive these two shipments of merchandise.” Cohen v. Saffer, 43 Ga. App. 746, 160 S.E. 130, 1931 Ga. App. LEXIS 537 (1931) (decided under former Code 1933, § 38-1704). Veracity. - It is not proper that a question to a witness should assume that the witness has made a statement which, the witness says, the witness has not made. Sanderlin v. Sanderlin, 24 Ga. 583, 1858 Ga. LEXIS 249 (1858) (decided under former law). When a witness testified that the witness had previously sworn in the case, a question by the counsel asking the witness if the witness had sworn the same then as the witness does now was properly objected to by the court. Andrews v. State, 118 Ga. 1, 43 S.E. 852, 1903 Ga. LEXIS 412 (1903) (decided under former Civil Code 1895, § 5281). Chastity. - Witnesses cannot be impeached by showing their lack of chastity since this bears no relevance to the case. Smith v. State, 235 Ga. 327, 219 S.E.2d 440, 1975 Ga. LEXIS 868 (1975) (decided under former Code 1933, § 38-1704). In a prosecution for rape, the trial court properly barred defendant’s crossexamination of a police officer about whether the victim’s stepfather told the officer that someone had told the stepfather that the victim was pregnant. Lee v. State, 241 Ga. App. 182, 525 S.E.2d 426 (decided under former O.C.G.A. § 24-9-62).

Life style. - It is improper argument to infer that witnesses are not worthy of belief because the witnesses are living in the same apartment while unmarried. Smith v. State, 235 Ga. 327, 219 S.E.2d 440, 1975 Ga. LEXIS 868 (1975) (decided under former Code 1933, § 38-1704). Harsh or Insulting Demeanor Speaking too loudly. - Trial court did not err by admonishing defendant’s

counsel for speaking too loudly when counsel questioned a 12-year old witness since the trial court did limit the type of questions that defendant could ask or in any way comment on the evidence, but rather, the trial court merely exercised the court’s broad discretion to protect a witness from harsh or insulting demeanor. Schneider v. State, 267 Ga. App. 508, 603 S.E.2d 663, 2004 Ga. App. LEXIS 704 (2004) (decided under former O.C.G.A. § 24-9-62).

RESEARCH REFERENCES ALR. Abuse of witness by counsel as ground for new trial or reversal, 4 A.L.R. 414. Propriety of cross-examining witness as to illicit relations with defendant in criminal case, 25 A.L.R.3d 537.

Privilege of witness to refuse to give answers tending to disgrace or degrade him or his family, 88 A.L.R.3d 304.

ARTICLE 3 USE OF SIGN LANGUAGE AND INTERMEDIARY INTERPRETER IN ADMINISTRATIVE AND JUDICIAL PROCEEDINGS Cross references. Arrest of hearing impaired persons, § 17-4-30. Law reviews. For article on the 2011 enactment of

this article, see 28 Ga. St. U.L. Rev. 1 (2011).