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Call Now: 904-383-7448No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall he be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.
- Protection of life, liberty, and property, Ga. Const. 1983, Art. I, Sec. I, Para. I.
Privilege against self-incrimination, Ga. Const. 1983, Art. I, Sec. I, Para. XVI and §§ 15-11-31,17-7-93,17-7-95,24-9-27.
Double jeopardy generally, Ga. Const. 1983, Art. I, Sec. I, Para. XVIII and §§ 16-1-7,16-1-8,17-7-53,38-2-438.
Guarantee of just compensation, Ga. Const. 1983, Art. I, Sec. III, Para. I and § 22-1-5.
Right to grand jury process, § 17-7-50.
Self-incrimination in courts-martial, § 38-2-411.
Double jeopardy in courts-martial, § 38-2-438.
Use of evidence of driver's refusal to submit to chemical test for alcohol or drugs in blood, § 40-6-392.
- The Supreme Court has declared that the due process clause of U.S. Const., amend. 14 protects a person from multiple jeopardy and compulsory self-incrimination in state, as well as federal, criminal proceedings. See Benton v. Maryland, 395 U.S. 784, 89 S. Ct. 2056, 23 L. Ed. 2d 707 (1969) (multiple jeopardy) and Malloy v. Hogan, 373 U.S. 1, 83 S. Ct. 1068, 10 L. Ed. 2d 148 (1964) (compulsory self-incrimination).
- For article discussing constitutionality of restrictive covenants, see 12 Ga. B.J. 277 (1950). For article "The School Segregation Decision: A Legal Analysis," see 3 J. of Pub. L. 83 (1954). For article, "The Law of the Land," focusing on the role of the Supreme Court, see 6 J. of Pub. L. 444 (1957). For article criticizing United States v. Costello, 145 F. Supp. 892 (S.D.N.Y. 1956), holding the privilege against self-incrimination does not obtain in denaturalization proceedings due to the noncriminal nature of such proceedings, see 8 Mercer L. Rev. 368 (1957). For article, "Jury Trials in Contempt Cases," see 20 Ga. B.J. 297 (1957). For article, "The Federal Loyalty Security Program-A Constitutional Dilemma," see 20 Ga. B.J. 473 (1958). For article, "Due Process of Law Yesterday, Today and Tomorrow," see 21 Ga. B.J. 193 (1958). For article, "Civil Liberties and Statutory Construction," see 8 J. of Pub. L. 66 (1959). For article, "The School Segregation Cases," see 23 Ga. B.J. 9 (1960). For article, "The Supreme Court and State Coerced Confessions," see 12 J. of Pub. L. 53 (1963). For article, "The Fourteenth Amendment and Confessions of Guilt: Role of the Supreme Court," see 15 Mercer L. Rev. 309 (1964). For article, "Changing Constitutional Concepts in Criminal Law and Procedure," see 1 Ga. St. B.J. 421 (1965). For article, "The Legal Status of the American Communist Party: 1965," see 15 J. of Pub. L. 94 (1966). For article discussing federal liability for pollution abatement in condemnation actions, see 17 Mercer L. Rev. 364 (1966). For article discussing the limitation imposed by this amendment on the power to regulate the value of currency, see 16 J. of Pub. L. 51 (1967). For article, "The Supreme Court, the Individual and the Criminal Process," see 1 Ga. L. Rev. 386 (1967). For article, "Federalism in Current Perspective," see 1 Ga. L. Rev. 586 (1967). For article, "Police Interrogation and the Supreme Court: An Inquiry into the Limits of Judicial Policy-Making," see 17 J. of Pub. L. 241 (1968). For article on the judicial development of the due process clause of U.S. Const., Amend. 14 and the selective incorporation of the Bill of Rights, see 22 Mercer L. Rev. 533 (1971). For article, "Eminent Domain, Police Power and Urban Renewal: Compensation for Interim Depreciation in Land Values," see 7 Ga. L. Rev. 226 (1972). For article, "Privacy in the Corporate State: A Constitutional Value of Dwindling Significance," see 22 J. of Pub. L. 3 (1973). For article discussing federal Fair Credit Reporting Act, and the effect credit reporting has upon the constitutional right to privacy, see 22 J. of Pub. L. 67 (1973). For article, "Prisoners' Perceptions of their Constitutional Rights: A Client's View of the World of Criminal Justice," see 24 Emory L.J. 67 (1975). For article, "The Supreme Court and Civil Liberties: 1974-1975," see 24 Emory L.J. 937 (1975). For article, "Personal Liability of State Officials Under State and Federal Law," see 9 Ga. L. Rev. 821 (1975). For article discussing federal taxing law in connection with land use planning, see 10 Ga. L. Rev. 53 (1975). For article, "Constitutional Issues In Federal No-Fault," see 27 Mercer L. Rev. 273 (1975). For article proposing constitutional bases for a right to adequate health care, see 10 Ga. L. Rev. 391 (1976). For article discussing admissibility of illegally obtained evidence as violative of right not to incriminate self and advocating a state exclusionary rule, see 11 Ga. L. Rev. 105 (1976). For article, "Sexual Privacy - Recent U.S. Supreme Court Decisions," see 13 Ga. St. B.J. 93 (1976). For article analyzing commercial and government deprivation cases involving procedural due process, and advocating application of the same constitutional standard to both, see 11 Ga. L. Rev. 477 (1977). For article discussing developments in Georgia criminal law in 1976 to 1977, see 29 Mercer L. Rev. 55 (1977). For article, "Toward a Perspective on the Death Penalty Cases," see 27 Emory L.J. 469 (1978). For article, "Federal Antibias Legislation and Academic Freedom: Some Problems with Enforcement Procedures," see 27 Emory L.J. 609 (1978). For article surveying cases dealing with criminal law and criminal procedure from June 1, 1977 through May 1978, see 30 Mercer L. Rev. 27 (1978). For article, "In Their Own Image: The Reframing of the Due Process Clause by the United States Supreme Court," see 13 Ga. L. Rev. 479 (1979). For article, "Mistrials and the Double Jeopardy Clause," see 14 Ga. L. Rev. 45 (1979). For article, "To Supplant the Fifth Amendment's Right Against Compulsory Self-Incrimination: the Supreme Court and Federal Grants of Witness Immunity," see 30 Mercer L. Rev. 633 (1979). For article, "United States v. Alessio - Due Process of Law and Federal Grants of Witness Immunity for Defense Witnesses," see 31 Mercer L. Rev. 689 (1980). For article discussing the concept of a mandatory public service obligation for lawyers, see 29 Emory L.J. 997 (1980). For article, "The Constitutionality of Labor Unions' Collection and Use of Forced Dues for Non-Bargaining Purposes," see 32 Mercer L. Rev. 561 (1981). For article criticizing the use of compensation as a remedy for invalid land-use regulations, see 15 Ga. L. Rev. 559 (1981). For article, "Constitutional Criminal Litigation," see 32 Mercer L. Rev. 993 (1981). For article surveying developments in Georgia constitutional law from mid-1980 through mid-1981, see 33 Mercer L. Rev. 51 (1981). For article discussing the constitutional contours of forensic evaluation and the leading case of Estelle v. Smith, 451 U.S. 454 (1981), see Emory L.J. 71 (1982). For article, "The 'Forum State Interest' Factor in Personal Jurisdiction Adjudication," see 33 Mercer L. Rev. 769 (1982). For article discussing eleventh circuit court cases in the year 1981 dealing with constitutional criminal procedure, see 33 Mercer L. Rev. 1083 (1982). For survey article on domestic relations, see 34 Mercer L. Rev. 113 (1982). For article surveying 1982 Eleventh Circuit cases involving constitutional criminal procedure, see 34 Mercer L. Rev. 1241 (1983). For annual survey of evidence law, see 35 Mercer L. Rev. 167 (1983). For article, "Substantive Due Process and the Scope of Constitutional Torts," see 18 Ga. L. Rev. 201 (1984). For article, "The Bail Reform Act of 1984," see 34 Emory L.J. 685 (1985). For article, "Problems in Search of Principles: The First Amendment in the Supreme Court from 1791-1930," see 35 Emory L.J. 59 (1986). For article, "Prosecutorial Misconduct During Closing Argument: The Arts of Knowing When and How to Object and of Avoiding the 'Invited Response' Doctrine," see 37 Mercer L. Rev. 1033 (1986). For survey of 1985 Eleventh Circuit cases on constitutional criminal procedure, see 37 Mercer L. Rev. 1275 (1986). For survey of 1985 Eleventh Circuit cases on evidence, see 37 Mercer L. Rev. 1367 (1986). For article, "Employer and Consultant Reporting Under the LMRDA," see 20 Ga. L. Rev. 533 (1986). For article, "The Impact of the Senate Permanent Subcommittee on Investigations on Federal Policy," 21 Ga. L. Rev. 17 (1986). For lecture, "Government, Society, and Anarchy," see 38 Mercer L. Rev. 753 (1987). For survey of 1986 Eleventh Circuit cases on constitutional criminal procedure, see 38 Mercer L. Rev. 1141 (1987). For survey of 1986 Eleventh Circuit cases on employment discrimination, see 38 Mercer L. Rev. 1213 (1987). For article, "After ABSCAM: An Examination of Congressional Proposals to Limit Targeting Discretion in Federal Undercover Investigations," see 36 Emory L.J. 75 (1987). For article, "Affirmative Action in EEOC Litigation," see 21 Ga. L. Rev. 1059 (1987). For article, "Judicial Privilege," see 22 Ga. L. Rev. 89 (1987). For article, "An Overview of the New Federal Sentencing Guidelines," see 25 Ga. St. B.J. 16 (1988). For survey of 1987 Eleventh Circuit cases on administrative law, see 39 Mercer L. Rev. 1057 (1988). For survey of 1987 Eleventh Circuit cases on constitutional criminal procedure, see 39 Mercer L. Rev. 1187 (1988). For survey of Eleventh Circuit cases on evidence, see 39 Mercer L. Rev. 1259 (1988). For survey of Eleventh Circuit cases on trial practice and procedure, see 39 Mercer L. Rev. 1307 (1988). For article, "Exclusion of Evidence in Federal Prosecutions on the Basis of State Law," see 22 Ga. L. Rev. 667 (1988). For article, "More Myths of Parity: State Court Forums and Constitutional Actions for the Right to Shelter," see 38 Emory L.J. 615 (1989). For article, "Should a Christian Lawyer Serve the Guilty?," see 23 Ga. L. Rev. 1021 (1989). For article, "Georgia Local Government Officials and the Grand Jury," see 26 Ga. St. B.J. 50 (1989). For article, "Metaphor and Paradox," see 23 Ga. L. Rev. 1053 (1989). For article, "Ideology, Religion, and the Constitutional Protection of Private Property: 1760-1860," see 39 Emory L.J. 65 (1990). For article, "A Commentary on Professor Fisher's Thesis: Ideology, Religion, Private Property, and the Supreme Court 1987-1988," see 39 Emory L.J. 135 (1990). For article, "Federal and State 'State Action': The Undercritical Embrace of a Hypercriticized Doctrine," see 24 Ga. L. Rev. 327 (1990). For article, "The World Where Parallel Lines Converge: The Privilege Against Self-Incrimination in Concurrent Civil and Criminal Child Abuse Proceedings," see 24 Ga. L. Rev. 473 (1990). For essay, "The Prospects for a Revival of Conservative Activism in Constitutional Jurisprudence," see 24 Ga. L. Rev. 629 (1990). For article surveying developments in Georgia constitutional law during 1989, see 41 Mercer L. Rev. 1261 (1990). For annual survey on criminal law and procedure, see 42 Mercer L. Rev. 141 (1990). For annual eleventh circuit survey of constitutional law - civil, see 42 Mercer L. Rev. 1313 (1991). For annual eleventh circuit survey of constitutional criminal procedure, see 42 Mercer L. Rev. 1349 (1991). For article, "Criminal Discovery: Disclosure of Police Internal Affairs Division Documents and Police Personnel Files," see 29 Ga. St. B.J. 34 (1992). For annual eleventh circuit survey of constitutional law - civil, see 43 Mercer L. Rev. 1075 (1992). For annual eleventh circuit survey of constitutional criminal law, see 43 Mercer L. Rev. 1113 (1992). For annual eleventh circuit survey of federal tax law touching on fifth amendment privilege against self-incrimination, see 43 Mercer L. Rev. 1195 (1992). For annual survey of criminal law and procedure, see 43 Mercer L. Rev. 175 (1991). For article, "Individual Rights and the Powers of Government," see 27 Ga. L. Rev. 343 (1993). For article, "Conceptual Interdependence and Comparative Competence," see 27 Ga. L. Rev. 391 (1993). For article, "Rights as Trumps," see 27 Ga. L. Rev. 463 (1993). For article, "A Comprehensive Analysis of Georgia RICO," see 9 Ga. St. U.L. Rev. 537 (1993). For article, "Making the Case for a Constitutional Right to Minimum Entitlements," see 44 Mercer L. Rev. 525 (1993). For article, "Comment On: Making the Case for a Constitutional Right to Minimum Entitlements," see 44 Mercer L. Rev. 567 (1993). For article, "Resources and Rights: Towards a New Prototype of Criminal Representation," see 44 Mercer L. Rev. 599 (1993). For article, "Article II Courts," see 44 Mercer L. Rev. 825 (1993). For article, "Constitutional Criminal Law," see 44 Mercer L. Rev. 1143 (1993). For article, "Annual Eleventh Circuit Survey January 1, 1993 - December 31, 1993: Constitutional Civil Law," see 45 Mercer L. Rev. 1217 (1994). For article, "Annual Eleventh Circuit Survey January 1, 1993 - December 31, 1993: Constitutional Criminal Law," see 45 Mercer L. Rev. 1243 (1994). For annual survey article on criminal law and procedure, see 46 Mercer L. Rev. 153 (1994). For article, "The Power of Government to Regulate Class Discrimination by Religious Entities: A Study in Conflicting Values," see 43 Emory L.J. 1189 (1994). For article, "1994 Eleventh Circuit Survey: Constitutional Criminal Procedure," see 46 Mercer L. Rev. 1297 (1995). For article, "Liberty and the Constitution," see 29 Ga. L. Rev. 585 (1995). For survey of 1995 Eleventh Circuit cases on constitutional criminal procedure, see 47 Mercer L. Rev. 765 (1996). For survey of 1995 Eleventh Circuit cases on evidence, see 47 Mercer L. Rev. 837 (1996). For survey of 1995 Eleventh Circuit cases on federal sentencing guidelines, see 47 Mercer L. Rev. 851 (1996). For survey of 1995 Eleventh Circuit cases on trial practice and procedure, see 47 Mercer L. Rev. 907 (1996). For article, "Between a Rock and a Hard Place: Accommodating the Fifth Amendment Privilege in Civil Forfeiture Cases," see 15 Ga. St. U.L. Rev. 555 (1999). For article surveying 1997 and 1998 Eleventh Circuit cases on constitutional criminal procedure, see 50 Mercer L. Rev. 921 (1999). For article surveying 1999 Eleventh Circuit cases involving constitutional criminal procedure, see 51 Mercer L. Rev. 1089 (2000). For article surveying of 1999 Eleventh Circuit cases on federal sentencing guidelines, see 51 Mercer L. Rev. 1189 (2000). For article, "Why Georgia's Child Support Guidelines Are Unconstitutional," see 6 Ga. St. B.J. 8 (2000). For article, "Constitutionally Sound Objectives and Means," see 6 Ga. St. B.J. 16 (2000). For article, "Tree Preservation Ordinances: Sacrificing Private Timber Rights on the Diminutive Altar of Public Benefit," see 52 Mercer L. Rev. 705 (2001). For article on constitutional criminal procedure, see 52 Mercer L. Rev. 1305 (2001). For article on criminal law, see 53 Mercer L. Rev. 209 (2001). For article, "Constitutional Criminal Procedure," see 53 Mercer L. Rev. 1339 (2002). For article, "Constitutional Criminal Procedure," see 54 Mercer L. Rev. 1403 (2003). For survey article on criminal law and procedure for the period from June 1, 2002 through May 31, 2003, see 55 Mercer L. Rev. 117 (2003). For survey article on death penalty decisions from June 1, 2002 through May 31, 2002, see 55 Mercer L. Rev. 175 (2003). For Eleventh Circuit survey article on constitutional criminal procedure decisions in 2003, see 55 Mercer L. Rev. 1149 (2004). For article, "Constitutional Interpretation, Coercive Interrogation, and Civil Rights Litigation after Chavez v. Martinez," 39 Ga. L. Rev. 733 (2005). For article, "Data Matching, Data Mining, and Due Process," see 40 Ga. L. Rev. 1 (2005). For article, "The Role of the Federal Sentencing Guidelines in the Wake of United States v. Booker and United States v. Fanfan," see 56 Mercer L. Rev. 1131 (2005). For annual survey of criminal law, see 57 Mercer L. Rev. 113 (2005). For annual survey of death penalty decisions, see 57 Mercer L. Rev. 139 (2005). For annual survey of zoning and land use law, see 57 Mercer L. Rev. 447 (2005). For article, "Women and Law: A Comparative Analysis of the United States and Indian Supreme Courts' Equality Jurisprudence," see 34 Ga. J. Int'l & Comp. L. 557 (2006). For annual survey of evidence law, see 58 Mercer L. Rev. 151 (2006). For article, "Due Process Rights Before EU Agencies: The Rights of Defense," see 37 Ga. J. Int'l & Comp. L. 1 (2008). For article, "An Originalist Defense of Substantive Due Process: Magna Carta, Higher-Law Constitutionalism, and the Fifth Amendment," see 58 Emory L.J. 585 (2009). For article, "Substantive Due Process Rediscovered: The Rise and Fall of Liberty of Contract," see 60 Mercer L. Rev. 563 (2009). For article, "Caught Between a Rock and a Hard Place: Invocation of the Privilege Against Self-Incrimination in Civil Cases," see 15 (No. 1) Ga. State Bar J. 14 (2009). For article, "Impersonal Jurisdiction," see 60 Emory L.J. 1 (2010). For article, "The Vulnerable Subject and the Responsive State," see 60 Emory L.J. 252 (2010). For article, "Congressional End-Run: The Ignored Constraint on Judicial Review," see 45 Ga. L. Rev. 211 (2010). For article, "A Review of Three Generations, No Imbeciles: Eugenics, The Court, and Buck v. Bell," see 26 Ga. St. U.L. Rev. 1295 (2010). For annual survey of law on criminal law, see 62 Mercer L. Rev. 87 (2010). For annual survey of law on evidence, see 62 Mercer L. Rev. 125 (2010). For article, "The Case Against Closure: Open Courtrooms After Presley v. Georgia," see 16 (No. 2) Ga. St. B.J. 10 (2010). For article, "The Experiential Future of the Law," see 60 Emory L.J. 585 (2011). For article, "Pensions and Chapter 9: Can Municipalities Use Bankruptcy to Solve Their Pension Woes?," see 27 Emory Bankr. Dev. J. 365 (2011). For article, "Gelding the Lily: How the Bankruptcy Code's Promotion of Marriage Leaves it Impotent," see 28 Emory Bankr. Dev. J. 31 (2011). For article, "Deporting Families: Legal Matter or Political Question?," see 27 Ga. St. U.L. Rev. 489 (2011). For article, "Due Process and Counterterrorism," see 26 Emory Int'l L. Rev. 162 (2012). For article, "(Mis)Conceptions of the Corporation," see 29 Ga. St. U.L. Rev. 731 (2013). For article, "Eleventh Circuit Survey: January 1, 2013 - December 31, 2013: Article: Constitutional Criminal Procedure," see 65 Emory L. J. 891 (2014). For article, "Eleventh Circuit Survey: January 1, 2013 - December 31, 3013: Article: Evidence," see 65 Emory L. J. 945 (2014). For article, "Eleventh Circuit Survey: January 1, 2013 - December 31, 2013: Article: Federal Sentencing Guidelines," see 65 Emory L. J. 971 (2014). For article, "Disability Constitutional Law," see 63 Emory L.J. 527 (2014). For article, "Justifying a Prudential Solution to the Williamson County Ripeness Puzzle," see 49 Ga. L. Rev. 163 (2014). For article, "Penal Institution: Agreements for Probation Services," see 31 Ga. St. U.L. Rev. 159 (2014). For article, "Public Officers and Employees: Employees' Insurance and Benefit Plans," see 31 Ga. St. U.L. Rev. 177 (2014). For article, "Mitya Karamazov Gives the Supreme Court an Onion: The Role of Confessions," see 66 Mercer L. Rev. 673 (2015). For article, "Eleventh Circuit Survey: January 1, 2014 - December 31, 2014: Evidence," see 66 Mercer L. Rev. 965 (2015). For article, "Secret Jurisdiction," see 65 Emory L.J. 1313 (2016). For annual survey of evidence law, see 67 Mercer L. Rev. 907 (2016). For annual survey of real property law, see 68 Mercer L. Rev. 231 (2016). For article, "How Both the EU and the U.S. are 'Stricter' Than Each Other for the Privacy of Government Requests for Information," see 66 Emory L.J. 617 (2017). For article, "Injustice Under Law: Perpetuating and Criminalizing Poverty Through the Courts," see 33 Ga. St. U.L. Rev. 695 (2017). For article, "Missing Police Body Camera Videos: Remedies, Evidentiary Fairness, and Automatic Activation," see 52 Ga. L. Rev. 57 (2017). For annual survey on evidence law, see 68 Mercer L. Rev. 1019 (2017). For article, "The CDC's Communicable Disease Regulations: Striking the Balance Between Public Health & Individual Rights," see 67 Emory L.J. 463 (2018). For note "Taxation of Illegally Received Income," see 1 J. of Pub. L. 473 (1952). For note discussing the use of eminent domain powers in slum clearance and owners right under this amendment and U.S. Const., Amend. 14, see 3 J. of Pub. L. 261 (1954). For note discussing due process and loyalty requirements for federal employment, in light of Cole v. Young, 351 U.S. 536, 76 S. Ct. 861, 100 L. Ed. 1396 (1956), see 5 J. of Pub. L. 508 (1956). For note, "The Posture of Former Jeopardy on Retrial," see 9 Mercer L. Rev. 354 (1958). For note on amenability of dependents of servicemen and nonmilitary employees to court-martial overseas, see 9 J. of Pub. L. 252 (1960). For note on computation of compensation for condemned lands where value is enhanced by announcement of proposed improvement, see 15 Mercer L. Rev. 488 (1964). For note discussing habeas corpus as a means of exerting control by the central government in protecting the constitutional rights of criminal defendants and the ramifications for federalism, see 16 Mercer L. Rev. 281 (1964). For note suggesting attorney's due process right to be compensated for representing an indigent, see 16 Mercer L. Rev. 367 (1964). For note discussing retroactivity of constitutional rules of criminal procedure in light of Linkletter v. Walker, 381 U.S. 618, 85 S. Ct. 1731, 14 L. Ed. 2d 601 (1965), see 16 J. of Pub. L. 193 (1967). For note, "Constitutional Rights of a Taxpayer in a Criminal Tax Investigation," see 16 J. of Pub. L. 403 (1967). For note discussing sonic boom damage as governmental taking of property for public use without just compensation, see 2 Ga. L. Rev. 83 (1967). For note discussing constitutional problems with the bail system, see 4 Ga. St. B.J. 278 (1967). For note, "Welfare Due Process: The Maximum Grant Limitation on the Right to Survive," see 3 Ga. L. Rev. 459 (1969). For note discussing operation of Implied Consent Law Code 1933, § 68-1625.1 (see § 40-5-55), and constitutional issues raised by the concept, see 20 Mercer L. Rev. 489 (1969). For note discussing the constitutional origins of the substantive right to family autonomy, see 30 Mercer L. Rev. 719 (1969). For note discussing some limitations on governmental tort immunity, see 5 Ga. St. B.J. 494 (1969). For note, "Regulation and Ownership of the Marshlands: The Georgia Marshlands Act," see 5 Ga. L. Rev. 563 (1971). For note discussing the constitutional implications of higher nonresident tuition fees charged by state universities, see 8 Ga. St. B.J. 86 (1971). For note, "The Constitutionality of the Use of Search Warrant to Obtain Tax Records," see 6 Ga. L. Rev. 399 (1972). For note advocating judicial discretion in permitting a pro se defense, see 23 Emory L.J. 523 (1974). For note discussing self-incrimination in relation to mandatory reporting of illegally obtained income, see 23 Emory L.J. 1119 (1974). For note, "Behind Closed Doors: An Empirical Inquiry Into the Nature of Prison Discipline in Georgia," see 8 Ga. L. Rev. 919 (1974). For note on use of voice exemplars in grand jury investigations, see 25 Mercer L. Rev. 365 (1974). For note analyzing appropriate standard of proof to meet due process requirements in cases involving loss of liberty, in light of Blunt v. United States, 322 A.2d 579 (D.C. App. 1974), see 24 Emory L.J. 105 (1975). For note, "Constitutionality of State Residency Requirements for Bar Admission," see 24 Emory L.J. 425 (1975). For note, "The Constitutionality of Residency Requirements for Municipal Employees," see 24 Emory L.J. 447 (1975). For note, "Application of the Fourth Amendment and the Exclusionary Rule to the Grand Jury," see 24 Emory L.J. 471 (1975). For note discussing the right against self-incrimination in reference to the production of records, see 9 Ga. L. Rev. 658 (1975). For note discussing airport noise as a "taking," see 10 Ga. L. Rev. 218 (1975). For note discussing limits to prosecutor's duty to disclose exculpatory evidence to the defense, in light of United States v. Agurs, 427 U.S. 97, 96 S. Ct. 2392, 49 L. Ed. 2d 342 (1976), see 28 Mercer L. Rev. 383 (1976). For note, "The Limits of Judicial Intervention in Criminal Trials and Reversible Error," see 11 Ga. L. Rev. 371 (1977). For note, "Criminal Discovery: The Use of Notices to Produce," see 30 Mercer L. Rev. 331 (1978). For note, "Constitutionally Implied Causes of Action: A Policy of Protection, Expansion, or Restriction?" see 30 Mercer L. Rev. 1023 (1979). For note discussing application of procedural due process requirements to hearings by administrative tribunals, see 32 Mercer L. Rev. 359 (1980). For note pertaining to property rights of owners versus rights of expression and petition exercised on shopping center property, see 32 Mercer L. Rev. 637 (1981). For note discussing abortion regulation in light of Roe v. Wade, 410 U.S. 113, 93 S. Ct. 705, 35 L. Ed. 2d 147 (1973), see 15 Ga. L. Rev. 681 (1981). For note discussing "Interstate Commerce" jurisdictional test in Sherman Act (15 U.S.C. § 1 et seq.) cases, in light of McLain v. Real Estate Bd., Inc., 444 U.S. 232, 100 S. Ct. 502, 62 L. Ed. 2d 441 (1980), see 15 Ga. L. Rev. 714 (1981). For note on United States v. DiFrancesco, 449 U.S. 117, 101 S. Ct. 426, 66 L. Ed. 2d 328 (1980), see 32 Mercer L. Rev. 1261 (1981). For note on airport searches of drug couriers, see 33 Mercer L. Rev. 433 (1981). For note, "Constitutional Challenges to Grand Jury Foreperson Selection Procedures," see 17 Ga. L. Rev. 153 (1982). For note, "The Bifurcated Trial: Is It Used More Than It Is Useful?," see 31 Emory L.J. 441 (1982). For note, "Two Models of Prosecutorial Vindictiveness," see 17 Ga. L. Rev. 467 (1983). For note, "An Assessment of the Use of Cameras in State and Federal Courts," see 18 Ga. L. Rev. 389 (1984). For note, "Circling the Wagons: Informational Privacy and Family Testimonial Privileges," see 20 Ga. L. Rev. 173 (1985). For note, "Military Medical Malpractice and the Feres Doctrine," see 20 Ga. L. Rev. 497 (1986). For case note, "Morris v. Mathews: A Constitutional Salve for Double Jeopardy Violations," see 38 Mercer L. Rev. 715 (1987). For note, "United States v. Stanley: Salt in a Serviceman's Wounds," see 39 Mercer L. Rev. 1013 (1988). For note, "When Exactions Become Extortion: The Supreme Court Draws the Line in Nollan v. California Coastal Commission," see 39 Mercer L. Rev. 1033 (1988). For note, "Dismissal with Prejudice for Failure to Prosecute: Visiting the Sins of the Attorney upon the Client," see 22 Ga. L. Rev. 195 (1987). For note, "Metro Broadcasting, Inc. v. FCC: Are Racial Classifications No Longer Subject to Strict Scrutiny?," see 42 Mercer L. Rev. 1623 (1991). For note, "Minnick v. Mississippi: Additional Protection for the Criminal Defendant," see 42 Mercer L. Rev. 1639 (1991). For note, "Haitian Centers Council, Inc. v. McNary: If at First You Don't Succeed ...," see 44 Mercer L. Rev. 959 (1993). For note, "Lucas v. South Carolina Coastal Council: Low Tide for the Takings Clause," see 44 Mercer L. Rev. 1433 (1993). For note, "United States v. Dickerson: The Beginning of the End for Miranda?" see 51 Mercer L. Rev. 1359 (2000). For note, "Giving Taxpatriates the Boot-permanently?: The Reed Amendment Unconstitutionally Infringes on the Fundamental Right to Expatriate," see 36 Ga. L. Rev. 835 (2002). For note, "Which Stream to Follow: Why the Eleventh Circuit Should Adopt a Broader Stream of Commerce Theory in Light of Growing E-Commerce Markets," see 20 Ga. St. U.L. Rev. 539 (2003). For note, "The Meaning of Fifth and Sixth Amendment Rights: Sentencing in Federal Drug Cases after Apprendi v. New Jersey and Harris v. United States," see 20 Ga. St. U.L. Rev. 723 (2004). For note, "How Are Local Governments Responding to Student Rental Problems in University Towns in the United States, Canada, and England?," see 33 Ga. J. Int'l & Comp. L. 497 (2005). For note, "United States v. Patane: The Supreme Court's Continued Assault on Miranda," see 56 Mercer L. Rev. 1499 (2005). For note, "What's the Use? The Court Takes a Stance on the Public Use Doctrine in Kelo v. City of New London," see 57 Mercer L. Rev. 689 (2006). For note, "War Criminal or Just Plain Felon? Whether Providing Material Support for Terrorism Violates the Laws of War and Is Thus Punishable by Military Commission," see 26 Ga. St. U.L. Rev. 1061 (2010). For note, "Conceiving Equality: Infertility-Related Illness Under the Pregnancy Discrimination Act," see 26 Ga. St. U.L. Rev. 1361 (2010). For note, "Evaluating the Constitutionality of Proposals to Allow Non-Unanimous Juries to Impose the Death Penalty in Georgia," see 29 Ga. St. U.L. Rev. 1003 (2010). For note, "Foreign States are Foreign States: Why Foreign State-Owned Corporations Are Not Persons Under the Due Process Clause," see 45 Ga. L. Rev. 913 (2011). For note, "Extra! Read All About It: Why Notice by Newspaper Publication Fails to Meet Mullane's Desire to Inform Standard and How Modern Technology Provides a Viable Alternative," see 45 Ga. L. Rev. 1095 (2011). For note, "Imprisoned by Liability: Why Bivens Suits Should Not be Available Against Employees of Privately Run Federal Prisons," see 45 Ga. L. Rev. 1127 (2011). For note, "Padilla v. Kentucky: The Criminal Defense Attorney's Obligation to Warn of Immigration Consequences of Criminal Conviction," see 29 Ga. St. U.L. Rev. 891 (2012). For note, "Safe Haven No Longer: The Role of Georgia Courts and Private Probation Companies in Sustaining a De Facto Debtors' Prison System," see 48 Ga. L. Rev. 227 (2013). For note, "The Conversational Consent Search: How 'Quick Look' and Other Similar Searches Have Eroded Our Constitutional Rights," see 30 Ga. St. U. L. Rev. 1077 (2014). For note, "A Promise Unfulfilled: Challenges to Georgia's Death Penalty Statute Post Furman," see 33 Ga. St. U.L. Rev. 839 (2017).
For comment on Helvering v. Mitchell, 303 U.S. 391, 58 S. Ct. 630, 82 L. Ed. 917 (1938), holding acquittal on criminal charge of tax evasion does not bar remedial civil action for fraudulent deduction arising out of same facts, see 1 Ga. B.J. 48 (1939). For comment on Williamson v. Housing Auth., 186 Ga. 673, 199 S.E. 43 (1938); Barber v. Housing Auth., 189 Ga. 155, 5 S.E.2d 425 (1939); Hogg v. Housing Auth., 189 Ga. 164, 5 S.E.2d 431 (1939), see 2 Ga. B.J. 65 (1940). For comment on United States v. White, 322 U.S. 694, 64 S. Ct. 1248, 88 L. Ed. 1542 (1944), holding privilege against self-incrimination cannot be claimed for refusal to produce union records specifically designated in subpoena, see 7 Ga. B.J. 247 (1944). For comment regarding due process right to counsel for indigent defendant charged with felony, in light of Williams v. Kaiser, 323 U.S. 471, 65 S. Ct. 363, 89 L. Ed. 398 (1945), see 7 Ga. B.J. 484 (1945). For comment on United Pub. Workers v. Mitchell, 330 U.S. 75, 67 S. Ct. 556, 91 L. Ed. 754 (1946), upholding constitutionality of Hatch Act, 5 U.S.C. § 1501 et seq., curbing political activity of state and federal employees, see 9 Ga. B.J. 459 (1947). For comment on United States ex rel. Kennedy v. Burke, 176 F.2d 96 (3rd Cir. 1949), holding absence of counsel permissible where petitioner's age, intelligence, and experience established intelligent guilty plea, see 12 Ga. B.J. 228 (1949). For comment discussing appeal by state after acquittal, in light of State v. Evjue, 254 Wis. 581, 37 N.W.2d 50 (1949), see 1 Mercer L. Rev. 306 (1950). For comment on Blau v. United States, 340 U.S. 159, 71 S. Ct. 223, 95 L. Ed. 170 (1950), holding this amendment's privilege against self-incrimination extends to refusal to answer grand jury questions regarding Communist party, see 13 Ga. B.J. 483 (1951). For comment concerning discriminatory selection of grand jury members, in light of Shepherd v. Florida, 341 U.S. 50, 71 S. Ct. 549, 95 L. Ed. 740 (1951), see 14 Ga. B.J. 256 (1951). For comment on United States v. Pewee Coal Co., 341 U.S. 114, 71 S. Ct. 670, 95 L. Ed. 2d 809 (1951), holding seizure of coal mine by United States constitutes a taking, see 14 Ga. B.J. 261 (1951). For comment on United States v. Carignan, 342 U.S. 36, 72 S. Ct. 97, 96 L. Ed. 48 (1951), see 14 Ga. B.J. 486 (1952). For comment on Rochin v. California, 342 U.S. 165, 72 S. Ct. 205, 96 L. Ed. 182 (1952), see 15 Ga. B.J. 86 (1952). For comment discussing the determination of just compensation for ships requisitioned during wartime, see 15 Ga. B.J. 236 (1952). For comment on United States v. Coffey, 198 F.2d 438 (3rd Cir. 1952), see 15 Ga. B.J. 368 (1953). For comment on United States v. Kahriger, 345 U.S. 22, 72 S. Ct. 510, 97 L. Ed. 54 (1953), holding unconstitutional the federal excise and occupational tax on wagering as an invasion of the state's police powers and violative of the privilege against self-incrimination, see 15 Ga. B.J. 505 (1953). For comment on Kitchens v. Steele, 112 F. Supp. 383 (W.D. Mo. 1953), holding that a statute providing for the confinement of an accused found to be mentally incompetent until such time as the accused shall be mentally competent to stand trial is valid under the constitutional provision relating to "incidental powers," see 16 Ga. B.J. 236 (1953). For comment on Ikeda v. Curtis, 43 Wash. 2d 449, 261 P.2d 684, 690 (1953), as to permissibility of inferring guilt in a civil case in which a party's fifth amendment rights are invoked, see 3 J. of Pub. L. 280 (1954). For comment on Orloff v. Willoughby, 345 U.S. 83, 73 S. Ct. 534, 97 L. Ed. 842 (1953), upholding the denial of writ of habeas corpus and army discharge of petitioner who refused, on grounds of possible self-incrimination, to state whether he had been a member of the Communist Party in his application for commission, see 16 Ga. B.J. 354 (1954). For comment on Adams v. Maryland, 347 U.S. 179, 74 S. Ct. 442, 98 L. Ed. 608 (1954), holding that petitioner who testified before senate committee was not a volunteer, and was not required to invoke the fifth amendment as a prerequisite to claiming immunity under the general immunity statute (62 Stat. 833 [1948], 18 U.S.C. § 3486 [1953]), as the statute forbids the use of testimony given by a witness before either House of Congress or their committees in any criminal proceeding against him in "any court," see 17 Ga. B.J. 140 (1954). For comment on United States v. Nesmith, 121 F. Supp. 758 (D.D.C. 1954), regarding admissibility of chemical tests of body fluids where fourth, fifth and fourteenth amendment objections are made, see 4 J. of Pub. L. 202 (1955). For comment on Grandville-Smith v. Grandville-Smith, 349 U.S. 1, 75 S. Ct. 553, 99 L. Ed. 773 (1955), analyzing due process aspects of divorce jurisdiction statutes and full faith and credit problems with divorce decrees, see 4 J. of Pub. L. 206 (1955). For comment on Beard v. United States, 222 F.2d 84 (4th Cir. 1955), wherein the refusal of defendant to produce public records was held to raise an inference of criminality and such inference did not violate privilege against self-incrimination, see 7 Mercer L. Rev. 233 (1955). For comment on Communist Party of United States v. Subversive Activities Control Bd., 223 F.2d 531 (D.C. 1954), cert. granted, 349 U.S. 944, 75 S. Ct. 877, 99 L. Ed. 1270 (1955), holding the statute requiring registration of Communist action organizations is valid and not contrary to this amendment, see 18 Ga. B.J. 358 (1956). For comment on United States ex rel. Toth v. Quarles, 350 U.S. 11, 76 S. Ct. 1, 100 L. Ed. 8 (1955), holding that Congress cannot subject civilians to trial by court-martial for they are entitled to safeguards which pertain to regular federal court proceedings, see 18 Ga. B.J. 364 (1956). For comment, "The 'Right to Work': Individual or Collective Right," focusing on Railway Employees' Dep't v. Hanson, 351 U.S. 225, 76 S. Ct. 714, 100 L. Ed. 1112 (1956), see 6 J. of Pub. L. 263 (1957). For comment on Reid v. Covert, 354 U.S. 1, 77 S. Ct. 1222, 1 L. Ed. 2d 1148 (1957) and Kinsella v. Krueger, 351 U.S. 470, 76 S. Ct. 886, 100 L. Ed. 1342 (1956) as to military authority overseas over dependents of servicemen, see 6 J. of Pub. L. 540 (1957). For comment on United States v. Linen Serv. Council, 141 F. Supp. 511 (D.N.J. 1956), holding that the members of a partnership may exercise the privilege against self-incrimination in regard to the production of partnership records, see 19 Ga. B.J. 536 (1957). For comment on Railway Employees' Dep't v. Hanson, 351 U.S. 225, 76 S. Ct. 714, 100 L. Ed. 1112 (1956), see 19 Ga. B.J. 550 (1957). For comment on Breithaupt v. Abram, 352 U.S. 432, 77 S. Ct. 408, 1 L. Ed. 2d 448 (1957), holding that U.S. Const., Amend. 14 does not extend the protection of this amendment and U.S. Const., Amend. 4 to criminal prosecutions in state cases, see 20 Ga. B.J. 126 (1957). For comment discussing the privilege against self-incrimination for those other than natural persons, in light of United States v. Linen Serv. Council, 141 F. Supp. 511 (D.N.J. 1956), see 20 Ga. B.J. 269 (1957). For comment discussing the privilege against self-incrimination with regard to the work papers of taxpayer's accountant in taxpayer's possession, in light of Application of House, 114 F. Supp. 95 (N.D. Cal., 1956), see 20 Ga. B.J. 278 (1957). For comment on Thomas v. State, 213 Ga. 237, 98 S.E.2d 548 (1957), holding that since defendant did not object to being placed in his car for the purposes of identification, it was not error to allow testimony concerning the incriminating act and no constitutional right was violated, see 20 Ga. B.J. 384 (1958). For comment on Looper v. Georgia S. & F. Ry., 213 Ga. 279, 99 S.E.2d 101 (1957), holding that a shop agreement requiring employees to become a member of a labor organization and contribute dues to be distributed among various political organizations was in violation of the employees rights as one cannot constitutionally be compelled to contribute moneys to support ideas which one opposes, see 20 Ga. B.J. 540 (1958). For comment on Blackford v. United States, 247 F.2d 245 (9th Cir. 1957), cert. denied, 356 U.S. 914, 78 S. Ct. 672, 2 L. Ed. 2d 586 (1958), holding that evidence gained in bodily search of defendant who was attempting to cross the United States border was not obtained through unreasonable search and seizure and did not violate constitutional protections, see 21 Ga. B.J. 269 (1958). For comment on the right to belong to a labor union, in light of Oliphant v. Brotherhood of Locomotive Firemen & Enginemen, 262 F.2d 359 (6th Cir. 1958), cert. denied, 359 U.S. 935, 79 S. Ct. 648, 3 L. Ed. 2d 636 (1959), see 8 J. of Pub. L. 580 (1959). For comment discussing the constitutionality of the statutory prohibition against expenditures by labor unions in connection with federal elections, 18 U.S.C. § 610, see 21 Ga. B.J. 575 (1959). For comment on Steinberg v. United States, 163 F. Supp. 590 (Ct. Cl. 1958), holding suspension of retirement pay for pleading this amendment to be violation of due process, see 22 Ga. B.J. 114 (1959). For comment regarding right of witness in congressional contempt proceeding to refuse to testify under this amendment and U.S. Const., Amend. 1, in light of Barrenblatt v. United States, 360 U.S. 109, 79 S. Ct. 1081, 3 L. Ed. 2d 1115 (1959), see 22 Ga. B.J. 404 (1960). For comment on Marshall v. United States, 360 U.S. 310, 79 S. Ct. 1171, 3 L. Ed. 2d 1250 (1959), holding exposure of jurors to newspaper articles regarding prior convictions when court refused to permit prosecutor to present such evidence was denial of due process, see 22 Ga. B.J. 413 (1960). For comment on Nelson v. County of Los Angeles, 362 U.S. 1, 80 S. Ct. 527, 4 L. Ed. 2d 494 (1959), holding due process not denied employees summarily dismissed for invocation of this amendment and U.S. Const., Amend. 5 before congressional subcommittee, see 23 Ga. B.J. 267 (1960). For comment discussing constitutionality of legislation requiring employees to pay dues to railway union in order to maintain employment, in light of International Ass'n of Machinists v. Street, 367 U.S. 740, 81 S. Ct. 784, 6 L. Ed. 2d 1141 (1961), see 24 Ga. B.J. 432 (1962). For comment on Cohen v. Hurley, 366 U.S. 117, 81 S. Ct. 954, 6 L. Ed. 2d 156 (1961), upholding constitutionality of disbarment by state court of attorney who refused to answer questions in judicial investigation pertaining to professional misconduct, see 24 Ga. B.J. 522 (1962). For comment discussing admissibility of voluntary statements made after indictment and release on bail in absence of retained counsel, in light of Massiah v. United States, 377 U.S. 201, 84 S. Ct. 1199, 12 L. Ed. 2d 246 (1964), see 16 Mercer L. Rev. 343 (1964). For comment on Malloy v. Hogan, 378 U.S. 1, 84 S. Ct. 1489, 12 L. Ed. 653 (1964), see 1 Ga. St. B.J. 358 (1965). For comment on Bowers v. Fulton County, 221 Ga. 731, 146 S.E.2d 884 (1966), appearing below, as to measure of damages for condemnation, see 17 Mercer L. Rev. 471 (1966). For comment on Busbee v. State, 183 So. 2d 27 (Fla. Dist. Ct. App. 1966), discussing multiple prosecutions of distinct offenses arising from the same transaction, see 18 Mercer L. Rev. 304 (1966). For comment on Juelich v. United States, 342 F.2d 29 (5th Cir. 1965), see 2 Ga. St. B.J. 504 (1966). For comment on State Hwy. Dep't v. Branch, 222 Ga. 770, 152 S.E.2d 372 (1966), discussing regulation of outdoor advertising and billboards as a constitutional taking, see 18 Mercer L. Rev. 499 (1967). For comment discussing Miranda warnings in criminal tax prosecutions, see 18 Mercer L. Rev. 502 (1967). For comment on Marchetti v. United States, 390 U.S. 39, 88 S. Ct. 697, 19 L. Ed. 2d 889 (1968), applying this amendment's privilege to disclosure of gambling income, see 19 Mercer L. Rev. 433 (1968). For comment on State v. Rand, 20 Ohio Misc. 98, 247 N.E.2d 342 (Com. Pleas 1969), holding criminal defendant competent to stand trial under properly administered tranquilizing drugs, see 18 J. of Pub. L. 503 (1969). For comment discussing limits on the military's jurisdiction and the constitutional rights of servicemen in light of O'Callahan v. Parker, 395 U.S. 258, 89 S. Ct. 1683, 23 L. Ed. 2d 291 (1969), see 21 Mercer L. Rev. 311 (1969). For comment on Sams v. Olah, 225 Ga. 497, 169 S.E.2d 790 (1969) as to the constitutionality of Art. 2, Ch. 19, T. 15, see 21 Mercer L. Rev. 355 (1969). For comment on Smith v. State, 225 Ga. 328, 168 S.E.2d 587 (1969), see 6 Ga. St. B.J. 294 (1970). For comment on United States v. Barash, 428 F.2d 328 (2d Cir. 1970), as to the constitutionality under the principle of double jeopardy, of increasing severity of punishment on retrial following successful appeal, see 5 Ga. L. Rev. 194 (1971). For comment on Anderson v. Laird, 316 F. Supp. 1081 (D.D.C. 1970), as to religious regulations at military academies, see 5 Ga. L. Rev. 400 (1971). For comment on Freeman v. Wilcox, 119 Ga. App. 325, 167 S.E.2d 163 (1969) and a juvenile's right to counsel at pre-adjudicatory stages of juvenile proceedings, see 22 Mercer L. Rev. 597 (1971). For comment on Dutton v. Evans, 400 U.S. 74, 91 S. Ct. 210, 27 L. Ed. 2d 213 (1970) and Georgia's coconspirator exception to the hearsay rule, see 22 Mercer L. Rev. 791 (1971). For comment on In re Kras, 331 F. Supp. 1207 (E.D.N.Y. 1971), holding the required prepayment of a filing fee by an indigent in a bankruptcy proceeding violative of equal protection and due process, see 21 J. of Pub. L. 239 (1972). For comment as to custodial interrogation at the suspect's home, in light of Knowles v. State, 124 Ga. App. 377, 183 S.E.2d 617 (1971), see 23 Mercer L. Rev. 983 (1972). For comment discussing the application of this amendment's privilege against self-incrimination to a federal tax scheme requiring disclosure of potentially incriminating information on one's tax return, see 8 Ga. L. Rev. 160 (1973). For comment discussing treatment of premeditated murder and felony murder as one offense under the theory of continuing jeopardy, in light of United States ex rel. Jackson v. Follette, 462 F.2d 1041 (2d Cir. 1972), see 24 Mercer L. Rev. 679 (1973). For comment on Creamer v. State, 229 Ga. 511, 192 S.E.2d 350 (1972), see 24 Mercer L. Rev. 687 (1973). For comment on Scarpa v. United States Bd. of Parole, 477 F.2d 278 (5th Cir.), vacated and remanded, 414 U.S. 809, 94 S. Ct. 79, 38 L. Ed. 2d 44 (1973), declining to accord parole release hearings, judicial review and procedural due process rights, see 23 Emory L.J. 597 (1974). For comment on Gagnon v. Scarpelli, 411 U.S. 778, 93 S. Ct. 1756, 36 L. Ed. 2d 656 (1973), as to probationer's rights at probation revocation, see 23 Emory L.J. 617 (1974). For comment discussing due process and equal protection rights of illegitimate child denied social security benefits due to birth after father's disability, in light of Beaty v. Weinberger, 478 F.2d 300 (5th Cir. 1973), see 23 Emory L.J. 861 (1974). For comment criticizing Chaffin v. Stynchcombe, 412 U.S. 17, 93 S. Ct. 1977, 36 L. Ed. 2d 714 (1973), permitting imposition of increased sentence by jury after retrial, see 23 Emory L.J. 879 (1974). For comment on Construction Indus. Assoc. v. City of Petaluma, 375 F. Supp. 574 (N.D. Cal. 1974), as to the authority of local governments to restrict population growth by means other than by the operation of demographic and market demands in light of the right to travel, see 9 Ga. L. Rev. 260 (1974). For comment on James v. State, 230 Ga. 29, 195 S.E.2d 448 (1973), appearing below, see 25 Mercer L. Rev. 935 (1974). For comment discussing elements of due process required for nonprobationary employee discharged without prior evidentiary hearing where administrative appeal is available, in light of Arnett v. Kennedy, 416 U.S. 134, 94 S. Ct. 1633, 40 L. Ed. 2d 15 (1974), see 26 Mercer L. Rev. 1429 (1974). For comment on Couch v. United States, 409 U.S. 322, 93 S. Ct. 611, 34 L. Ed. 2d 548 (1973), holding compelled production of taxpayers records in possession of accountant not violative of taxpayer's right against self-incrimination, see 10 Ga. St. B.J. 648 (1974). For comment on Brown v. Illinois, 422 U.S. 590, 95 S. Ct. 2254, 45 L. Ed. 2d 416 (1975), as to effect of Miranda warnings on admissibility of a confession made after an unconstitutional arrest, see 25 Emory L.J. 227 (1976). For comment on Washington v. Davis, 426 U.S. 229, 96 S. Ct. 2040, 48 L. Ed. 2d 597 (1976), upholding employment test with a racially disproportionate impact absent discriminatory purpose against an equal protection attack under this amendment, see 25 Emory L.J. 737 (1976). For comment on Michigan v. Mosley, 423 U.S. 96, 96 S. Ct. 321, 46 L. Ed. 2d 313 (1975), regarding the resumption of questioning after the right to remain silent has been exercised, see 27 Mercer L. Rev. 1203 (1976). For comment on United States v. Security Nat'l Bank, 546 F.2d 492 (2d Cir. 1976), regarding protection of corporate defendant under the double jeopardy clause, see 11 Ga. L. Rev. 694 (1977). For comment on Andresen v. Maryland, 427 U.S. 463, 96 S. Ct. 2737, 49 L. Ed. 2d 627 (1976), as to nonapplicability of privilege against self-incrimination to seizure with search warrant of incriminatory personal business records, see 28 Mercer L. Rev. 581 (1977). For comment on Maher v. New Orleans, 516 F.2d 1051 (5th Cir. 1975), cert. denied, 426 U.S. 905, 96 S. Ct. 2225, 48 L. Ed. 2d 830 (1976), upholding the constitutionality of a municipal zoning ordinance regulating the preservation and maintenance of a historical district, see 28 Mercer L. Rev. 591 (1977). For comment on United States v. Grayson, 438 U.S. 41, 98 S. Ct. 2610, 57 L. Ed. 2d 582 (1978), regarding consideration by sentencing judge of his belief that defendant falsely testified during trial, see 28 Emory L.J. 159 (1979). For comment discussing whether a mother may challenge a state child custody ruling in a federal habeas corpus proceeding in light of Sylvander v. New England Home for Little Wanderers, 584 F.2d 1103 (1st Cir. 1978), see 13 Ga. L. Rev. 662 (1979). For comment, "The Tacit Admission Rule: Unreliable and Unconstitutional - A Doctrine Ripe for Abandonment," see 14 Ga. L. Rev. 27 (1979). For comment on Alderman v. State, 241 Ga. 496, 246 S.E.2d 642, cert. denied, 439 U.S. 991, 99 S. Ct. 593, 58 L. Ed. 2d 666 (1978), see 31 Mercer L. Rev. 349 (1979). For comment on DeKalb County v. Trustees, Decatur Lodge No. 1602, 242 Ga. 707, 251 S.E.2d 243 (1978), see 31 Mercer L. Rev. 367 (1979). For comment on Pope v. City of Atlanta, 242 Ga. 331, 249 S.E.2d 16 (1978), cert. denied, 440 U.S. 936, 99 S. Ct. 1281, 59 L. Ed. 2d 494 (1979), see 31 Mercer L. Rev. 375 (1979). For comment, "Bivens and the Creation of a Cause of Action for Money Damages Arising Directly From the Due Process Clauses," see 29 Emory L.J. 231 (1980). For comment on Fare v. Michael C., 442 U.S. 707 (1979), regarding this amendment and Miranda rights of juveniles, see 29 Emory L.J. 563 (1980). For comment on Fulcher v. United States, 632 F.2d 278 (4th Cir. 1980), see 15 Ga. L. Rev. 516 (1981). For comment on Fullilove v. Klutznick, 448 U.S. 448, 100 S. Ct. 2758, 65 L. Ed. 2d 902 (1980), regarding the constitutionality of the ten percent set aside for minority contractors, etc., see 29 Emory L.J. 1127 (1980). For comment discussing the forcible medication of involuntarily committed mental patients with antipsychotic drugs in light of Rogers v. Okin, 634 F.2d 650 (1st Cir. 1980), see 15 Ga. L. Rev. 739 (1981). For comment, "Free Press, Privacy, and Privilege: Protection of Researcher-Subject Communications," see 17 Ga. L. Rev. 1009 (1983). For case comment discussing Miranda v. Arizona ambiguous requests for counsel, see 20 Ga. L. Rev. 221 (1985). For comment, "Gary Dotson as Victim: The Legal Response to Recanting Testimony," see 35 Emory L.J. 969 (1986). For comment, "Enforcing the Right to a Public Education for Children Afflicted with AIDS," see 36 Emory L.J. 603 (1987). For comment, "Searching for a Standard for Regulatory Takings Based on Investment-Backed Expectations: A Survey of State Court Decisions in the Vested Rights and Zoning Estoppel Areas," see 36 Emory L.J. 1219 (1987). For comment, "The Constitutional Implications of Mandatory Testing for Acquired Immunodeficiency Syndrome - AIDS," see 37 Emory L.J. 217 (1988). For case comment, "First English Evangelical Lutheran Church v. County of Los Angeles: Compensation of Landowners for Temporary Regulatory Takings," see 21 Ga. L. Rev. 1169 (1987). For comment, "Batson v. Kentucky: Equal Protection, the Fair Cross-Section Requirement, and the Discriminatory Use of Peremptory Challenges," see 37 Emory L.J. 755 (1988). For comment, "Grady v. Corbin: An Unsuccessful Effort to Define Same Offense," see 25 Ga. L. Rev. 143 (1990). For comment, "McNeil v. Wisconsin: Invocation of Right to Counsel Under Sixth Amendment by Accused at Judicial Proceeding Does Not Constitute Invocation of Miranda Right to Counsel for Unrelated Charge," see 26 Ga. L. Rev. 1049 (1992). For comment, "A Trend Ephemeral? Eternal? Neither?: A Durational Look at the New Judicial Federalism," see 42 Emory L.J. 209 (1993). For comment, "First Covenant Church v. City of Seattle: The Washington Supreme Court Fortifies the Free Exercise Rights of Religious Landmarks Against Historic Preservation Restrictions," see 27 Ga. L. Rev. 589 (1993). For comment, "Ramseur v. Beyer: The Third Circuit Upholds Race-Based Treatment of Prospective Grand Jurors," see 27 Ga. L. Rev. 621 (1993). For comment, "The Government's Right to Read: Maintaining State Access to Digital Data in the Age of Impenetrable Encryption," see 49 Emory L.J. 711 (2000). For comment, "The Takings Clause As a Vehicle for Judicial Activism: Eastern Enterprises v. Apfel Presents a New Twist to Takings Analyses," see 16 Ga. St. U.L. Rev. 689 (2000). For comment, "A Deep Breath Before the Plunge: Undoing Miranda's Failure Before It's Too Late," see 55 Mercer L. Rev. 1375 (2004). For comment, "It's Still Good to be the King: An Argument for Maintaining the Status Quo in Foreign Head of State Immunity," see 21 Emory Int'l L. Rev. 413 (2007). For comment, "'An Era of Human Zoning': Banning Sex Offenders from Communities Through Residence and Work Restrictions," see 57 Emory L.J. 1347 (2008). For comment, "School Bullies - They Aren't Just Students: Examining School Interrogations and the Miranda Warning," see 59 Mercer L. Rev. 731 (2008). For comment, "Right to Counsel Denied: Corporate Criminal Prosecutions, Attorney Fee Agreements, and the Sixth Amendment," see 58 Emory L.J. 1265 (2009). For comment, "Lawless by Design: Jurisdiction, Gender and Justice in Indian Country," see 59 Emory L.J. 1515 (2010). For comment, "Engendering Fairness in Domestic Violence Arrests: Improving Police Accountability Through the Equal Protection Clause," see 60 Emory L.J. 1011 (2011). For comment, "Drawing the Line: DNA Databasing at Arrest and Sample Expungement," see 29 Ga. St. U.L. Rev. 1063 (2013). For comment, "The Unconstitutional Torture of an American by the U.S. Military: Is there a Remedy Under Bivens?," see 29 Ga. St. U.L. Rev. 1093 (2013). For comment, "The Post-Koontz Landscape: Koontz's Shortcomings and How to Move Forward," see 61 Emory L.J. 129 (2014). For comment, "The Abuse of Animals as a Method of Domestic Violence: The Need for Criminalization," see 63 Emory L.J. 1163 (2014). For comment, "Too Far From Home: Why Daimler's 'At Home' Standard Does Not Apply to Personal Jurisdiction Challenges in Anti-Terrorism Act Cases," see 66 Emory L.J. 161 (2016).
- Assurance that a person's Fifth Amendment right against compelled self- incrimination was not violated does not necessarily overcome a failure to protect the person's right under the fourth amendment against unreasonable search and seizure. State v. Guillory, 236 Ga. App. 230, 511 S.E.2d 591 (1999).
- Defense counsel, acting without having consulted the defendant, is not empowered to invoke the defendant's personal rights under the fifth and sixth amendments. Edwards v. State, 167 Ga. App. 681, 307 S.E.2d 264 (1983).
- Implicit in a finding that the defendant was properly advised of the defendant's rights, that the defendant understood those rights, and that the defendant voluntarily signed a written waiver of those rights is the factual determination that the defendant was mentally competent to waive the defendant's rights. Hance v. Zant, 696 F.2d 940 (11th Cir.), cert. denied, 463 U.S. 1210, 103 S. Ct. 3544, 77 L. Ed. 2d 1393 (1983), overruled on other grounds, 762 F.2d 1383 (11th Cir. 1985).
There is no requirement that waiver of constitutional rights be in writing. Brown v. State, 162 Ga. App. 198, 290 S.E.2d 540 (1982).
- The refusal to grant a mistrial, on the grounds that the state's cross-examination of a witness was improper, is not an abuse of discretion if the defendant failed to voice an objection during the questioning. Kirk v. State, 168 Ga. App. 226, 308 S.E.2d 592 (1983), aff'd, 252 Ga. 133, 311 S.E.2d 821 (1984).
- Where a plaintiff alleges 28 U.S.C. § 1343(3), in conjunction with 42 U.S.C. § 1983, as the jurisdictional predicate, and alleges federal constitutional predicates, such as fourteenth amendment property rights, first amendment rights to free speech and association, and Fifth Amendment just compensation or "taking" clause, a federal court must assume jurisdiction to decide whether the allegations state a cause of action on which the court can grant relief, as well as to determine issues of fact arising in the controversy. Stone Mt. Game Ranch, Inc. v. Hunt, 570 F. Supp. 238 (N.D. Ga. 1983), aff'd, 746 F.2d 761 (11th Cir. 1984).
- Because a habeas petitioner offered to produce no evidence that proved underrepresentation of blacks and women on the grand and traverse juries which indicted and convicted the petitioner in violation of the petitioner's Fifth Amendment rights, no federal evidentiary hearing is required. Ross v. Hopper, 716 F.2d 1528 (11th Cir. 1983), aff'd in part, rev'd in part on other grounds, 756 F.2d 1483 (11th Cir. 1985).
- Election candidate and chairman of county board of elections lacked standing to complain about alleged violations of a voter's constitutional rights under U.S. Const., amend. 5 and Ga. Const. 1983, Art. II, Sec. I, Para. I. Hammill v. Valentine, 258 Ga. 603, 373 S.E.2d 9 (1988).
- Claims against the United States based directly on Fifth Amendment violations are barred by sovereign immunity. United States v. Article or Device Consisting of Biotone Model 4, 557 F. Supp. 141 (N.D. Ga. 1982).
- The United States is absolutely immune from damages in a suit seeking damages under the Constitution, as is the Commissioner of the Internal Revenue Service insofar as the Commissioner is acting within the scope of the Commissioner's official capacity. Sellers v. United States, 569 F. Supp. 1149 (N.D. Ga. 1983).
Commissioner of the Internal Revenue Service cannot be held vicariously liable for the fourth and Fifth Amendment violations of Internal Revenue Service agents. Sellers v. United States, 569 F. Supp. 1149 (N.D. Ga. 1983).
- There was no merit to a defendant's claim that due process had been violated because the state allowed a car in which a shooting took place to be sold from an impound lot before the car could be tested for fingerprints and other evidence. The defendant did not argue that the state had acted in bad faith, and the record did not show bad faith. Lockheart v. State, 284 Ga. 78, 663 S.E.2d 213 (2008).
As there was no showing that a videotape of a criminal incident and crime scene had "apparent exculpatory value" because the images were small, distorted, and non-identifiable, and the state did not act in bad faith when the state failed to preserve the tape, dismissal of an indictment against the defendant due to the state's failure to preserve the videotape was error. State v. Brawner, 297 Ga. App. 817, 678 S.E.2d 503 (2009).
Cited in Hall v. State, 41 Ga. App. 455, 153 S.E. 534 (1930); Reynolds v. Brosnan, 170 Ga. 773, 154 S.E. 264 (1930); Ventimiglia v. Aderhold, 51 F.2d 308 (N.D. Ga. 1931); Waugh v. Aderhold, 52 F.2d 702 (N.D. Ga. 1931); Buie v. Buie, 175 Ga. 27, 165 S.E. 15 (1932); State v. Thompson, 175 Ga. 189, 165 S.E. 34 (1932); Interstate Co. v. Richardson, 177 Ga. 9, 169 S.E. 373 (1933); Donalson v. City of Bainbridge, 177 Ga. 7, 169 S.E. 886 (1933); Cowart v. State, 177 Ga. 377, 170 S.E. 253 (1933); Gaskins v. Varn, 178 Ga. 502, 173 S.E. 695 (1934); Richmond Hosiery Mills v. Camp, 7 F. Supp. 139 (N.D. Ga. 1934); Colson v. Aderhold, 73 F.2d 191 (5th Cir. 1934); Jones v. City of Atlanta, 51 Ga. App. 218, 179 S.E. 922 (1935); United States v. Griffin, 12 F. Supp. 135 (S.D. Ga. 1935); Consolidated Utils. Co. v. Commissioner, 84 F.2d 548 (5th Cir. 1936); Jenkins v. United States, 86 F.2d 123 (5th Cir. 1936); Anniston Mfg. Co. v. Davis, 301 U.S. 337, 57 S. Ct. 816, 81 L. Ed. 1143 (1937); United States v. Weathers, 21 F. Supp. 763 (N.D. Ga. 1937); Farnsworth v. Zerbst, 98 F.2d 541 (5th Cir. 1938); Mulford v. Smith, 307 U.S. 38, 59 S. Ct. 648, 83 L. Ed. 1092 (1939); Beard v. Sanford, 105 F.2d 141 (5th Cir. 1939); McIntyre v. State, 190 Ga. 872, 11 S.E.2d 5 (1940); Meriwether v. State, 63 Ga. App. 667, 11 S.E.2d 816 (1940); Anthony v. City of Atlanta, 66 Ga. App. 506, 18 S.E.2d 82 (1941); FDIC v. Beasley, 193 Ga. 727, 20 S.E.2d 23 (1942); Zugar v. State, 194 Ga. 285, 21 S.E.2d 647 (1942); United States v. A Certain Tract or Parcel of Land, 44 F. Supp. 712 (S.D. Ga. 1942); Emmett v. State, 195 Ga. 517, 25 S.E.2d 9 (1943); In re Burke, 51 F. Supp. 552 (S.D. Ga. 1943); Perkins v. Brown, 53 F. Supp. 176 (S.D. Ga. 1943); Upchurch Packing Co. v. United States, 53 F. Supp. 791 (N.D. Ga. 1943); Davis v. United States, 138 F.2d 406 (5th Cir. 1943); Creaser v. Durant, 197 Ga. 531, 29 S.E.2d 776 (1944); Spreckels Sugar Co. v. South Atl. S.S. Line, 55 F. Supp. 670 (S.D. Ga. 1944); United States v. Ryals, 56 F. Supp. 772 (N.D. Ga. 1944); Monge v. Sanford, 145 F.2d 227 (5th Cir. 1944); Williams v. State, 199 Ga. 504, 34 S.E.2d 854 (1945); Miller v. Sanford, 59 F. Supp. 812 (N.D. Ga. 1945); Jackson v. Houston, 200 Ga. 399, 37 S.E.2d 399 (1946); Morakes v. State, 201 Ga. 425, 40 S.E.2d 120 (1946); Morris v. Peacock, 202 Ga. 524, 43 S.E.2d 531 (1947); Durant v. Hiatt, 81 F. Supp. 948 (N.D. Ga. 1948); Brown v. Sanford, 170 F.2d 344 (5th Cir. 1948); Boyett v. State, 205 Ga. 370, 53 S.E.2d 919 (1949); Walton v. City of Atlanta, 89 F. Supp. 309 (N.D. Ga. 1949); Sweeney v. Hiatt, 89 F. Supp. 416 (N.D. Ga. 1949); Martin v. Hiatt, 174 F.2d 350 (5th Cir. 1949); Hiatt v. Brown, 339 U.S. 103, 70 S. Ct. 495, 94 L. Ed. 691 (1950); Notis v. State, 84 Ga. App. 199, 65 S.E.2d 622 (1951); Torras v. Stradley, 103 F. Supp. 737 (N.D. Ga. 1951); United States v. Forrester, 105 F. Supp. 136 (N.D. Ga. 1952); Atlanta-New Orleans Motor Freight Co. v. United States, 155 F. Supp. 68 (N.D. Ga. 1953); Screven County v. Brier Creek Hunting & Fishing Club, Inc., 202 F.2d 369 (5th Cir. 1953); Humthlett v. Reeves, 211 Ga. 210, 85 S.E.2d 25 (1954); City of Moultrie v. Colquitt County Rural Elec. Co., 211 Ga. 842, 89 S.E.2d 657 (1955); United States v. Willis, 145 F. Supp. 365 (M.D. Ga. 1955); United States v. Jenkins, 141 F. Supp. 499 (S.D. Ga. 1956); Kivette v. United States, 230 F.2d 749 (5th Cir. 1956); Heyward v. Public Hous. Admin., 238 F.2d 689 (5th Cir. 1956); Looper v. Georgia, S. & Fla. Ry., 213 Ga. 279, 99 S.E.2d 101 (1957); Daniels v. State, 213 Ga. 833, 102 S.E.2d 27 (1958); Stark v. Waters, 214 Ga. 597, 106 S.E.2d 401 (1958); Deloach v. Rogers, 268 F.2d 928 (5th Cir. 1959); Suggs v. Brotherhood of Locomotive Firemen & Enginemen, 219 F. Supp. 770 (M.D. Ga. 1960); Backer v. Commissioner, 275 F.2d 141 (5th Cir. 1960); International Ass'n of Machinists v. Street, 367 U.S. 740, 81 S. Ct. 1784, 6 L. Ed. 2d 1141 (1961); Warnell v. United States, 291 F.2d 687 (5th Cir. 1961); Atlantic Coast Line R.R. v. United States, 205 F. Supp. 360 (M.D. Ga. 1962); Ferguson v. State, 219 Ga. 33, 131 S.E.2d 538 (1963); Pistor v. State, 219 Ga. 161, 132 S.E.2d 183 (1963); Pugh v. State, 219 Ga. 166, 132 S.E.2d 203 (1963); Heart of Atlanta Motel, Inc. v. United States, 379 U.S. 241, 85 S. Ct. 348, 13 L. Ed. 2d 258 (1964); Walther v. Walther, 219 Ga. 644, 135 S.E.2d 401 (1964); Raif v. State, 109 Ga. App. 354, 136 S.E.2d 169 (1964); Chatterton v. State, 221 Ga. 424, 144 S.E.2d 726 (1965); Curtis Publishing Co. v. Butts, 351 F.2d 702 (5th Cir. 1965); Gibbs v. Blackwell, 354 F.2d 469 (5th Cir. 1965); Woods v. State, 222 Ga. 321, 149 S.E.2d 674 (1966); Bass v. Bass, 222 Ga. 378, 149 S.E.2d 818 (1966); Givens v. Dutton, 222 Ga. 756, 152 S.E.2d 358 (1966); State Hwy. Dep't v. Branch, 222 Ga. 770, 152 S.E.2d 372 (1966); Elkins v. State, 222 Ga. 746, 152 S.E.2d 377 (1966); Carmichael v. Allen, 267 F. Supp. 985 (N.D. Ga. 1966); Nicholson v. United States, 355 F.2d 80 (5th Cir. 1966); O'Neal v. State, 115 Ga. App. 100, 153 S.E.2d 663 (1967); Abrams v. State, 223 Ga. 216, 154 S.E.2d 443 (1967); Arkwright v. State, 223 Ga. 768, 158 S.E.2d 370 (1967); Hurst v. United States, 370 F.2d 161 (5th Cir. 1967); Bon Air Hotel, Inc. v. Time, Inc., 376 F.2d 118 (5th Cir. 1967); Grogan v. United States, 394 F.2d 287 (5th Cir. 1967); Price v. State, 224 Ga. 306, 161 S.E.2d 825 (1968); Johnson v. Smith, 295 F. Supp. 835 (N.D. Ga. 1968); Gilstrap v. United States, 389 F.2d 6 (5th Cir. 1968); Chamblee v. United States, 402 F.2d 296 (5th Cir. 1968); Anderson v. United States, 403 F.2d 206 (5th Cir. 1968); Shoffeitt v. United States, 403 F.2d 991 (5th Cir. 1968); Robinson v. State, 225 Ga. 167, 167 S.E.2d 158 (1969); Sullivan v. State, 225 Ga. 301, 168 S.E.2d 133 (1969); Bugden v. Bugden, 225 Ga. 413, 169 S.E.2d 337 (1969); Sams v. Olah, 225 Ga. 497, 169 S.E.2d 790 (1969); Carroway v. Stynchcombe, 225 Ga. 586, 170 S.E.2d 396 (1969); Park v. State, 225 Ga. 618, 170 S.E.2d 687 (1969); Cato v. Georgia, 302 F. Supp. 1143 (N.D. Ga. 1969); Graham v. Blackwell, 306 F. Supp. 889 (N.D. Ga. 1969); Grant v. United States, 407 F.2d 56 (5th Cir. 1969); Handsford v. United States, 410 F.2d 733 (5th Cir. 1969); Elkins v. Kelley, 410 F.2d 734 (5th Cir. 1969); Cagle v. Scroggins, 410 F.2d 741 (5th Cir. 1969); Walker v. Blackwell, 411 F.2d 23 (5th Cir. 1969); Sturgis v. United States, 419 F.2d 390 (5th Cir. 1969); Daniels v. State, 226 Ga. 269, 174 S.E.2d 422 (1970); Mallin v. Mallin, 226 Ga. 628, 176 S.E.2d 709 (1970); Huftstetler v. Davies, 309 F. Supp. 1372 (N.D. Ga. 1970); United States v. Mobley, 421 F.2d 345 (5th Cir. 1970); Bowers v. United States, 423 F.2d 1207 (5th Cir. 1970); United States v. Adkins, 426 F.2d 298 (5th Cir. 1970); Jenkins v. United States, 428 F.2d 538 (5th Cir. 1970); United States v. Zarzour, 432 F.2d 1 (5th Cir. 1970); Edwards v. Selective Serv. Local Bd. 111, 432 F.2d 287 (5th Cir. 1970); United States v. Jones, 432 F.2d 773 (5th Cir. 1970); United States v. Houston, 434 F.2d 613 (5th Cir. 1970); Morris v. State, 228 Ga. 39, 184 S.E.2d 82 (1971); Alexander v. State, 228 Ga. 179, 184 S.E.2d 450 (1971); Rietz v. Butler, 322 F. Supp. 1029 (N.D. Ga. 1971); Cooley v. Endictor, 340 F. Supp. 15 (N.D. Ga. 1971); Staggers v. Stynchcombe, 436 F.2d 585 (5th Cir. 1971); Henderson v. Blackwell, 436 F.2d 1081 (5th Cir. 1971); Genuine Parts Co. v. FTC, 445 F.2d 1382 (5th Cir. 1971); United States v. Attaway, 449 F.2d 309 (5th Cir. 1971); FTC v. Gladstone, 450 F.2d 913 (5th Cir. 1971); Fryer v. Stynchcombe, 228 Ga. 576, 186 S.E.2d 885 (1972); Perdue v. Smith, 228 Ga. 770, 187 S.E.2d 862 (1972); Davis v. State, 229 Ga. 437, 192 S.E.2d 149 (1972); West v. State, 229 Ga. 427, 192 S.E.2d 163 (1972); Yeomans v. State, 229 Ga. 488, 192 S.E.2d 362 (1972); Williams v. Caldwell, 229 Ga. 453, 192 S.E.2d 378 (1972); Robertson v. State, 127 Ga. App. 6, 192 S.E.2d 502 (1972); Thomason v. Caldwell, 229 Ga. 637, 194 S.E.2d 112 (1972); Kahn v. United States, 349 F. Supp. 806 (N.D. Ga. 1972)
United States v. Jones, 352 F. Supp. 369 (S.D. Ga. 1972); Hamlin v. Laird, 371 F. Supp. 806 (S.D. Ga. 1972); Widmer v. Stokes, 464 F.2d 592 (5th Cir. 1972); Jones v. State, 128 Ga. App. 885, 198 S.E.2d 336 (1973); Geter v. State, 129 Ga. App. 108, 199 S.E.2d 272 (1973); Allison v. State, 129 Ga. App. 364, 199 S.E.2d 587 (1973); Sheats v. State, 231 Ga. 362, 201 S.E.2d 420 (1973); Stanley v. Local 926, Int'l Union of Operating Eng'rs, 354 F. Supp. 1267 (N.D. Ga. 1973); Finish Allatoona's Interstate Right, Inc. v. Volpe, 355 F. Supp. 933 (N.D. Ga. 1973); Law v. USDA, 366 F. Supp. 1233 (N.D. Ga. 1973); Peach Bowl, Inc. v. Shultz, 370 F. Supp. 685 (N.D. Ga. 1973); Community Action Group v. City of Columbus, 473 F.2d 966 (5th Cir. 1973); Beaty v. Weinberger, 478 F.2d 300 (5th Cir. 1973); Ansley v. Stynchcombe, 480 F.2d 437 (5th Cir. 1973); Northside Iron & Metal Co. v. Dobson & Johnson, Inc., 480 F.2d 798 (5th Cir. 1973); Walter v. State, 131 Ga. App. 667, 206 S.E.2d 662 (1974); Marchman v. State, 132 Ga. App. 677, 209 S.E.2d 88 (1974); Wall v. American Optometric Ass'n, 379 F. Supp. 175 (N.D. Ga. 1974); United States v. Hamilton, 492 F.2d 1110 (5th Cir. 1974); Dixon v. Henderson, 493 F.2d 467 (5th Cir. 1974); Sullivan v. Weinberger, 493 F.2d 855 (5th Cir. 1974); Park v. Huff, 493 F.2d 923 (5th Cir. 1974); United States v. Register, 496 F.2d 1072 (5th Cir. 1974); State v. Bailey, 233 Ga. 795, 213 S.E.2d 661 (1975); Lawson v. State, 234 Ga. 136, 214 S.E.2d 559 (1975); Baxter v. State, 134 Ga. App. 286, 214 S.E.2d 578 (1975); State v. Young, 234 Ga. 488, 216 S.E.2d 586 (1975); Pace v. City of Atlanta, 135 Ga. App. 399, 218 S.E.2d 128 (1975); Revels v. Tift County, 235 Ga. 333, 219 S.E.2d 445 (1975); Nunnally v. State, 235 Ga. 693, 221 S.E.2d 547 (1975); Diamond v. Marland, 395 F. Supp. 432 (S.D. Ga. 1975); Finch v. Weinberger, 407 F. Supp. 34 (N.D. Ga. 1975); United States v. Crockett, 506 F.2d 759 (5th Cir. 1975); United States v. Sklaroff, 506 F.2d 837 (5th Cir. 1975); Park v. Huff, 506 F.2d 849 (5th Cir. 1975); United States v. Quinn, 514 F.2d 1250 (5th Cir. 1975); Atlas Roofing Co. v. Occupational Safety & Health Review Comm'n, 518 F.2d 990 (5th Cir. 1975); Jones v. Anderson, 522 F.2d 181 (5th Cir. 1975); Gregg v. Georgia, 428 U.S. 153, 96 S. Ct. 2909, 49 L. Ed. 2d 859 (1976); Dodd v. State, 236 Ga. 572, 224 S.E.2d 408 (1976); Godwin v. State, 138 Ga. App. 131, 225 S.E.2d 723 (1976); Ballew v. State, 138 Ga. App. 530, 227 S.E.2d 65 (1976); Smith v. State, 138 Ga. App. 683, 227 S.E.2d 84 (1976); Banks v. State, 237 Ga. 325, 227 S.E.2d 380 (1976); Garrett v. Department of Pub. Safety, 237 Ga. 413, 228 S.E.2d 812 (1976); Thomas v. State, 237 Ga. 690, 229 S.E.2d 458 (1976); United States ex rel. Gereau v. Henderson, 526 F.2d 889 (5th Cir. 1976); United States v. King, 532 F.2d 505 (5th Cir. 1976); United States v. Thurmond, 534 F.2d 41 (5th Cir. 1976); Nelson v. Rosenthal, 539 F.2d 1034 (5th Cir. 1976); Carter v. State, 238 Ga. 446, 233 S.E.2d 201 (1977); Mitchell v. State, 142 Ga. App. 802, 237 S.E.2d 243 (1977); Hill v. Delta Air Lines, 143 Ga. App. 103, 237 S.E.2d 597 (1977); Overcash v. State, 239 Ga. 499, 238 S.E.2d 50 (1977); Baranan v. State Bd. of Nursing Home Adm'rs, 143 Ga. App. 605, 239 S.E.2d 533 (1977); Freedman v. United States, 437 F. Supp. 1252 (N.D. Ga. 1977); United States v. London, 550 F.2d 206 (5th Cir. 1977); United States v. Brown, 555 F.2d 407 (5th Cir. 1977); Roberts v. Cameron-Brown Co., 556 F.2d 356 (5th Cir. 1977); Mason v. Pulliam, 557 F.2d 426 (5th Cir. 1977); Oglethorpe Co. v. United States, 558 F.2d 590 (Ct. Cl. 1977); United States v. Hegwood, 562 F.2d 946 (5th Cir. 1977); Seaboard Coast Line R.R. v. Coleman, 562 F.2d 1008 (5th Cir. 1977); Savannah Sur. Assocs. v. Master, 240 Ga. 438, 241 S.E.2d 192 (1978); Felker v. State, 144 Ga. App. 458, 241 S.E.2d 576 (1978); Simpson v. State, 144 Ga. App. 657, 242 S.E.2d 265 (1978); Underwood v. State, 144 Ga. App. 684, 242 S.E.2d 339 (1978); Lowe v. State, 240 Ga. 767, 242 S.E.2d 582 (1978); Sims v. State, 144 Ga. App. 825, 242 S.E.2d 745 (1978); Moore v. State, 240 Ga. 807, 243 S.E.2d 1 (1978); Fayetteville-85 Assocs. v. Samas, Inc., 241 Ga. 119, 243 S.E.2d 887 (1978); Airport Bookstore, Inc. v. Jackson, 242 Ga. 214, 248 S.E.2d 623 (1978); Lockett v. State, 147 Ga. App. 102, 248 S.E.2d 177 (1978); Burks v. State, 147 Ga. App. 234, 248 S.E.2d 329 (1978); Beall v. Department of Revenue, 148 Ga. App. 5, 251 S.E.2d 4 (1978); High Ol' Times, Inc. v. Busbee, 449 F. Supp. 364 (N.D. Ga. 1978); Crist v. Crist, 460 F. Supp. 891 (N.D. Ga. 1978); Fidelity Equip. Leasing Corp. v. United States, 462 F. Supp. 845 (N.D. Ga. 1978); United States v. WIYN Radio, Inc., 464 F. Supp. 101 (N.D. Ga. 1978); United States v. Herring, 568 F.2d 1099 (5th Cir. 1978); Cox v. Bureau of Alcohol, Tobacco & Firearms, 571 F.2d 267 (5th Cir. 1978); United States v. Anderson, 577 F.2d 258 (5th Cir. 1978); Thompson v. State, 150 Ga. App. 567, 258 S.E.2d 180 (1979); Leggett v. State, 244 Ga. 226, 259 S.E.2d 476 (1979); Cochran v. State, 151 Ga. App. 478, 260 S.E.2d 391 (1979); Doe v. Busbee, 471 F. Supp. 1326 (N.D. Ga. 1979); United States v. Jackson, 590 F.2d 121 (5th Cir. 1979); United States v. Bryan, 591 F.2d 1161 (5th Cir. 1979); Gilbert v. Johnson, 601 F.2d 761 (5th Cir. 1979); Lane v. Hanberry, 601 F.2d 805 (5th Cir. 1979); Huskins v. State, 245 Ga. 541, 266 S.E.2d 163 (1980); Playmate Cinema, Inc. v. State, 154 Ga. App. 871, 269 S.E.2d 883 (1980); Hoerner v. State, 246 Ga. 374, 271 S.E.2d 458 (1980); Myrick v. State, 155 Ga. App. 496, 271 S.E.2d 637 (1980); Singer v. State, 156 Ga. App. 416, 274 S.E.2d 612 (1980); LaPier v. Holliman, 514 F. Supp. 692 (N.D. Ga. 1980); In re Middleton, 7 Bankr. 3 (N.D. Ga. 1980); Vaughn v. State, 247 Ga. 136, 274 S.E.2d 479 (1981); Wood v. State, 159 Ga. App. 221, 283 S.E.2d 79 (1981); Thompson v. State, 248 Ga. 343, 285 S.E.2d 685 (1981); Johnson v. State, 159 Ga. App. 819, 285 S.E.2d 252 (1981); United States v. Bartlett, 633 F.2d 1184 (5th Cir. 1981); Exxon Corp. v. Busbee, 644 F.2d 1030 (5th Cir. 1981); Shaw v. Stone, 506 F. Supp. 571 (M.D. Ga. 1981); CNN, Inc. v. ABC, 518 F. Supp. 1238 (N.D. Ga. 1981); Storey v. Office of Personnel Mgt., 519 F. Supp. 54 (N.D. Ga. 1981); Dampier v. State, 249 Ga. 299, 290 S.E.2d 431 (1982); Abdi v. State, 249 Ga. 827, 294 S.E.2d 506 (1982); Smith v. State, 163 Ga. App. 531, 295 S.E.2d 208 (1982); Norris v. State, 250 Ga. 38, 295 S.E.2d 321 (1982); Simmons v. State, 164 Ga. App. 643, 298 S.E.2d 313 (1982); Clark v. Singer, 250 Ga. 470, 298 S.E.2d 484 (1983); Lett v. State, 164 Ga. App. 584, 298 S.E.2d 541 (1982); United States v. Timmons, 672 F.2d 1373 (11th Cir. 1982); High Ol' Times, Inc. v. Busbee, 673 F.2d 1225 (11th Cir. 1982); Kyle v. Hanberry, 677 F.2d 1386 (11th Cir. 1982); Bracewell v. Nicholson Air Servs., Inc., 680 F.2d 103 (11th Cir. 1982); United States v. Lott, 681 F.2d 1371 (11th Cir. 1982); United States v. Gaines, 690 F.2d 849 (11th Cir. 1982); Scott v. Donovan, 539 F. Supp. 255 (N.D. Ga. 1982); United States v. Carlin, 698 F.2d 1133 (11th Cir. 1983); Logan v. Warren County Bd. of Educ., 549 F. Supp. 145 (S.D. Ga. 1982); Baranan v. Fulton County, 250 Ga. 531, 299 S.E.2d 722 (1983); Stevens v. State, 165 Ga. App. 814, 302 S.E.2d 724 (1983); Williams v. State, 251 Ga. 749, 312 S.E.2d 40 (1983); Hospital Auth. v. Heckler, 707 F.2d 456 (11th Cir. 1983); United States v. Johnson, 709 F.2d 639 (11th Cir. 1983); Cape v. Francis, 558 F. Supp. 1207 (M.D. Ga. 1983); Borg-Warner Acceptance Corp. v. Lovett & Tharpe, Inc., 560 F. Supp. 905 (S.D. Ga. 1983); House v. Balkcom, 562 F. Supp. 1111 (N.D. Ga. 1983); Agan v. Pierce, 576 F. Supp. 257 (N.D. Ga. 1983); State v. Hightower, 252 Ga. 220, 312 S.E.2d 610 (1984); Parker v. State, 170 Ga. App. 295, 316 S.E.2d 855 (1984); McCrary v. State, 171 Ga. App. 585, 320 S.E.2d 567 (1984); Griffith v. State, 172 Ga. App. 255, 322 S.E.2d 921 (1984); United States v. Hewes, 729 F.2d 1302 (11th Cir. 1984); United States v. Jorge-Salon, 734 F.2d 789 (11th Cir. 1984)
Peek v. Kemp, 746 F.2d 672 (11th Cir. 1984); Scoggins v. Moore, 579 F. Supp. 1320 (N.D. Ga. 1984); Shepard v. Byrd, 581 F. Supp. 1374 (N.D. Ga. 1984); Hubbard v. State, 173 Ga. App. 127, 325 S.E.2d 799 (1984); Pierce v. State, 173 Ga. App. 551, 327 S.E.2d 531 (1985); Hawkins v. State, 175 Ga. App. 606, 333 S.E.2d 870 (1985); Barnes v. State, 175 Ga. App. 621, 334 S.E.2d 205 (1985); Amadeo v. Kemp, 773 F.2d 1141 (11th Cir. 1985); Tenner v. Wallace, 615 F. Supp. 40 (S.D. Ga. 1985); Fernandez-Roque v. Smith, 622 F. Supp. 887 (N.D. Ga. 1985); Mason v. State, 177 Ga. App. 184, 338 S.E.2d 706 (1985); Moore v. State, 176 Ga. App. 882, 339 S.E.2d 271 (1985); Davis v. State, 255 Ga. 598, 340 S.E.2d 869 (1986); Bacon v. State, 178 Ga. App. 546, 343 S.E.2d 774 (1986); Rogers v. State, 256 Ga. 139, 344 S.E.2d 644 (1986); Riggins v. State, 179 Ga. App. 179, 345 S.E.2d 897 (1986); Welch v. State, 179 Ga. App. 221, 346 S.E.2d 4 (1986); Dixon v. State, 179 Ga. App. 278, 346 S.E.2d 93 (1986); Hood v. State, 179 Ga. App. 387, 346 S.E.2d 867 (1986); Brown v. State, 179 Ga. App. 538, 346 S.E.2d 908 (1986); Leggett v. State, 256 Ga. 274, 347 S.E.2d 580 (1986); Hall v. State, 180 Ga. App. 366, 349 S.E.2d 255 (1986); Harris v. State, 256 Ga. 350, 349 S.E.2d 374 (1986); Doby v. State, 180 Ga. App. 453, 349 S.E.2d 467 (1986); McNabb v. State, 180 Ga. App. 723, 350 S.E.2d 314 (1986); Rashada v. State, 180 Ga. App. 773, 350 S.E.2d 323 (1986); M.N.C. of Hinesville, Inc. v. United States Dep't of Defense, 791 F.2d 1466 (11th Cir. 1986); United States v. Rosenthal, 793 F.2d 1214 (11th Cir. 1986); Sizzler Family Steak Houses v. Western Sizzlin Steak House, Inc., 793 F.2d 1529 (11th Cir. 1986); Baldwin v. Ledbetter, 647 F. Supp. 623 (N.D. Ga. 1986); Carey v. Rudseal, 112 F.R.D. 95 (N.D. Ga. 1986); Hicks v. State, 256 Ga. 715, 352 S.E.2d 762 (1987); Griffin v. State, 257 Ga. 148, 356 S.E.2d 209 (1987); Hill v. State, 183 Ga. App. 654, 360 S.E.2d 4 (1987); Wilcox v. Ford, 813 F.2d 1140 (11th Cir. 1987); In re Grand Jury No. 86-3 (Will Roberts Corp.), 816 F.2d 569 (11th Cir. 1987); United States v. Boldin, 818 F.2d 771 (11th Cir. 1987); United States v. McDonald, 653 F. Supp. 793 (N.D. Ga. 1987); Bernstein v. Holland, 657 F. Supp. 233 (M.D. Ga. 1987); Ryals v. State, 186 Ga. App. 457, 367 S.E.2d 309 (1988); United States v. Elliott, 849 F.2d 554 (11th Cir. 1988); Bernard v. United States, 872 F.2d 376 (11th Cir. 1989); United States v. Henry, 883 F.2d 1010 (11th Cir. 1989); State v. Evans, 192 Ga. App. 216, 384 S.E.2d 404 (1989); United States v. Williams, 954 F.2d 668 (11th Cir. 1992); Brown v. Crawford County, 960 F.2d 1002 (11th Cir. 1992); Greenwood v. State, 203 Ga. App. 901, 418 S.E.2d 160 (1992); Bonilla v. State, 204 Ga. App. 424, 419 S.E.2d 495 (1992); Strickland v. Lamar County Bd. of Comm'rs, 807 F. Supp. 121 (M.D. Ga. 1992); Kraft v. Memorial Medical Ctr., Inc., 807 F. Supp. 785 (S.D. Ga. 1992); Fortner v. Thomas, 983 F.2d 1024 (11th Cir. 1993); Head v. State, 262 Ga. 795, 426 S.E.2d 547 (1993); Williams v. State, 207 Ga. App. 124, 427 S.E.2d 59 (1993); United States v. Costales, 5 F.3d 480 (11th Cir. 1993); Moore v. State, 263 Ga. 11, 427 S.E.2d 766 (1993); Walton v. State, 207 Ga. App. 787, 429 S.E.2d 158 (1993); United States v. Daniels, 986 F.2d 451 (11th Cir. 1993); Pittman v. State, 208 Ga. App. 211, 430 S.E.2d 141 (1993); Lyle v. Dodd, 857 F. Supp. 958 (N.D. Ga. 1994); Strickland v. Alderman, 74 F.3d 260 (11th Cir. 1996); Buchnowski v. State, 233 Ga. App. 766, 505 S.E.2d 263 (1998); Mackey v. State, 234 Ga. App. 554, 507 S.E.2d 482 (1998); Dorsey v. State, 251 Ga. App. 640, 554 S.E.2d 278 (2001); Cherokee County v. Greater Atlanta Homebuilders Ass'n, 255 Ga. App. 764, 565 S.E.2d 925 (2002); Bentley v. State, 262 Ga. App. 541, 586 S.E.2d 32 (2003); Rafi v. State, 289 Ga. 716, 715 S.E.2d 113 (2011); Palmer v. State, 341 Ga. App. 433, 801 S.E.2d 300 (2017); Curry v. DOT, 341 Ga. App. 482, 801 S.E.2d 95 (2017).
U.S. Const., amend. 5 requires that persons charged with crimes shall be indicted. United States v. Contris, 592 F.2d 893 (5th Cir. 1979).
- The language of the pertinent part of U.S. Const., amend. 5 is that "No person shall be held to answer", not that "No court shall hold any person to answer," as would likely have been the language had the provision been intended to be a limitation on the jurisdiction or the power of the court instead of a privilege for the protection of the individual. Barkman v. Sanford, 162 F.2d 592 (5th Cir.), cert. denied, 332 U.S. 816, 68 S. Ct. 155, 92 L. Ed. 393 (1947).
- The test as to whether one accused of crime is given adequate notice in a charge against the accused is whether the charge is definite and specific enough to meet the test of reasonably apprising the accused of what the accused must defend against and enable the accused to avoid a second conviction for the same offense or included offenses. Calley v. Callaway, 382 F. Supp. 650 (M.D. Ga. 1974), rev'd on other grounds, 519 F.2d 184 (5th Cir. 1975), cert. denied sub nom. Calley v. Hoffman, 425 U.S. 911, 96 S. Ct. 1505, 47 L. Ed. 2d 760 (1976).
- The first provision in U.S. Const., amend. 5 is intended as a protection to the individual to the same extent as were the other four provisions of U.S. Const., amend. 5, and each provision therein may be waived as fully as the accused may waive the rights under U.S. Const., amend. 6. Barkman v. Sanford, 162 F.2d 592 (5th Cir.), cert. denied, 332 U.S. 816, 68 S. Ct. 155, 92 L. Ed. 393 (1947).
- Validity of an indictment is to be determined by reading it as a whole. United States v. Contris, 592 F.2d 893 (5th Cir. 1979).
- Whether an indictment sufficiently charges a crime is a question of law, not of fact. United States v. Contris, 592 F.2d 893 (5th Cir. 1979).
Indictment is sufficient which charges the offense in the language of the statute, or so plainly that its nature may be easily understood by the jury. State v. Siebert, 133 Ga. App. 775, 213 S.E.2d 7 (1975).
- Indictments are read for their clear meaning and convictions will not be reversed because of minor deficiencies which do not prejudice the accused. United States v. Contris, 592 F.2d 893 (5th Cir. 1979).
- Sufficiency of an indictment is to be tested by practical rather than technical considerations, and the test of sufficiency is not whether the indictment could have been more artfully or precisely drawn, but whether it states the elements of the offense intended to be charged and adequately apprises the defendant of that which the defendant must be prepared to meet. United States v. Contris, 592 F.2d 893 (5th Cir. 1979).
- The two criteria by which the sufficiency of an indictment is to be tested are whether the facts stated show the essential elements of the offense and whether the facts alleged are sufficient to permit the defendant to plead former jeopardy in a subsequent prosecution. Marshall v. State, 127 Ga. App. 805, 195 S.E.2d 469 (1972); Calley v. Callaway, 519 F.2d 184 (5th Cir. 1975), cert. denied, 425 U.S. 911, 47 L. Ed. 2d 760, 96 S. Ct. 1505 (1976); United States v. Contris, 592 F.2d 893 (5th Cir. 1979).
- An indictment containing a trade name which does not designate an individual or import a corporation is not void where it satisfies the requisites of informing the defendant with reasonable certainty of the nature of the accusation for defense purposes and does not subject defendant to the possibility of double jeopardy, particularly where the trade name is unique to the area and the accused's dealings have been in such trade name. Marshall v. State, 127 Ga. App. 805, 195 S.E.2d 469 (1972).
Indictment may rest upon hearsay, but informal unsworn hearsay from the mouth of the prosecutor only is interdicted by U.S. Const., amend. 5. United States v. Hodge, 496 F.2d 87 (5th Cir. 1974).
- In order for the defendant's motion to quash the indictment and challenge to the array of the grand jurors to be entertained by the trial court, it must be made prior to the return of the indictment or the defendant must show that the defendant had no knowledge, either actual or constructive, of such alleged illegal composition of the grand jury prior to the time the indictment was returned. Otherwise, the objection is deemed to be waived. Sanders v. State, 235 Ga. 425, 219 S.E.2d 768 (1975), cert. denied, 425 U.S. 976, 96 S. Ct. 2177, 48 L. Ed. 2d 800 (1976).
- It is not, on the trial of one of two or more persons jointly indicted for a crime, inappropriate to charge upon the law of conspiracy merely because the indictment does not, in terms, allege that there was a conspiracy to commit the offense. Talley v. State, 120 Ga. App. 365, 170 S.E.2d 444 (1969).
- In a conspiracy case the government should not be able to procure an indictment without having to prove to the satisfaction of a jury that at least one act was done in the district of the indictment. Jones v. State, 135 Ga. App. 893, 219 S.E.2d 585 (1975).
Indictment charging theft by taking must describe property sufficiently to protect accused from double jeopardy. Chesser v. State, 159 Ga. App. 261, 283 S.E.2d 24 (1981).
- Criminal indictments are not amendable to conform to the evidence. Bowers v. State, 177 Ga. App. 36, 338 S.E.2d 457 (1985).
- Second indictment, which was apparently filed to address the eventuality that the defendants' motion to withdraw a guilty plea would be granted, was returned while the defendant's jeopardy was ongoing, and, as such, the indictment did not violate U.S. Const., amend. V, Ga. Const. 1983, Art. I, Sec. I, Para. XVIII, or O.C.G.A. § 16-1-8. Phillips v. State, 298 Ga. App. 520, 680 S.E.2d 424 (2009).
There was no fatal variance or due process violation in juvenile petition as the petition contained sufficient information, including the date of the incident and the fact that it involved egg-throwing, to inform defendant of the charge, enable defendant to prepare a defense, and protect defendant from subsequent prosecutions for the same offense; the discrepancy between the delinquency allegations and the evidence regarding the number of windows damaged did not demand reversal as the petition fully informed defendant. In the Interest of M.M., 265 Ga. App. 381, 593 S.E.2d 919 (2004).
- U.S. Const., amend. 6, expressly provides that the trial jury in a criminal case must be impartial. No such requirement in respect to grand juries is found in U.S. Const., amend. 5, which contains the guaranty against prosecutions for infamous crimes unless on a presentment or indictment of a grand jury. Creamer v. State, 150 Ga. App. 458, 258 S.E.2d 212 (1979).
Defendant has the right to be tried solely on charges returned by a grand jury; this preserves the defendant's right to be accused by the defendant's fellow citizens, and also insures that the defendant will have adequate notice of the charges against the defendant and will be protected against double jeopardy. United States v. Johnson, 713 F.2d 633 (11th Cir. 1983), cert. denied, 465 U.S. 1081, 104 S. Ct. 1447, 79 L. Ed. 2d 766 (1984).
- A criminal defendant may attack a conviction on the grounds of purposeful discrimination against an identifiable group in the selection of the grand jury foreperson of the grand jury indicting the defendant. United States v. Sneed, 729 F.2d 1333 (11th Cir. 1984).
Even if discrimination entered into the selection of grand jury forepersons, such discrimination did not warrant a reversal of conviction and the dismissal of the indictment absent an infringement of the fundamental right to fairness. United States v. Lewis, 743 F.2d 859 (11th Cir. 1984), cert. denied, 471 U.S. 1067, 105 S. Ct. 2144, 85 L. Ed. 2d 500 (1985).
- The grand jury foreman is not required to be a cross section of the community, and the appointing officer has wide discretion based on acceptable criteria that is race and gender neutral. United States v. Browning-Ferris Indus. of Ga., Inc., 555 F. Supp. 595 (N.D. Ga. 1982).
- The defendant, who submitted statistics comparing the representation of white and "non-white" people on the qualified grand jury wheel, failed to establish a prima facie case of discrimination, "non-white" persons not comprising a distinctive group singled out for special treatment under the law. United States v. Lewis, 743 F.2d 859 (11th Cir. 1984), cert. denied, 471 U.S. 1067, 105 S. Ct. 2144, 85 L. Ed. 2d 500 (1985).
- Negroes may not be systematically and arbitrarily excluded from the jury venires from which the grand jury that has indicted a Negro is selected, for such constitutes a denial of due process and equal protection of the laws. Mobley v. United States, 379 F.2d 768 (5th Cir. 1967).
Grand jury witness cannot refuse to answer questions on the ground that they are the product of unlawful searches and seizures. United States v. Worobyzt, 522 F.2d 196 (5th Cir. 1975), cert. denied, 425 U.S. 911, 96 S. Ct. 1507, 47 L. Ed. 2d 761 (1976).
Double jeopardy prohibition applies to the states through U.S. Const., amend 14. Price v. Georgia, 398 U.S. 323, 90 S. Ct. 1757, 26 L. Ed. 2d 300 (1970); Staggers v. Stynchcombe, 319 F. Supp. 1305 (N.D. Ga. 1970), aff'd, 436 F.2d 585 (5th Cir. 1971); Alexander v. State, 129 Ga. App. 395, 199 S.E.2d 918 (1973); Clark v. State, 144 Ga. App. 69, 240 S.E.2d 270 (1977).
- The double jeopardy clause prohibits merely punishing twice, or attempting a second time to punish criminally, for the same offense. The question is whether a statute imposes a criminal sanction. Cushway v. State Bar, 120 Ga. App. 371, 170 S.E.2d 732 (1969), cert. denied, 398 U.S. 910, 90 S. Ct. 1705, 26 L. Ed. 2d 71 (1970); Middlebrook v. Allen, 234 Ga. 481, 216 S.E.2d 331 (1975).
The Georgia constitution is less protective than the Fifth Amendment, for it recognizes an exception to the bar against double jeopardy when the first trial ends in mistrial. State v. Oliver, 188 Ga. App. 47, 372 S.E.2d 256 (1988).
The double jeopardy clause protects a criminal defendant against successive, rather than simultaneous, prosecutions. United States v. Farmer, 923 F.2d 1557 (11th Cir. 1991).
Retrial of a charge of possession of a firearm by a convicted felon would not itself violate double jeopardy or any other constitutional right, since the right not to be prosecuted on a count which was quashed for the second time was purely statutory pursuant to O.C.G.A. § 17-7-53.1. Langlands v. State, 282 Ga. 103, 646 S.E.2d 253 (2007).
- Precedent supports the conclusion that simultaneous prosecution for carjacking and using or carrying a firearm during a crime of violence (18 U.S.C. §§ 2119, 924) does not offend the double jeopardy clause. United States v. Grant, 860 F. Supp. 843 (M.D. Ga. 1994), aff'd without op. sub nom., United States v. Williams, 81 F.3d 175 (11th Cir. 1996).
Procedural double jeopardy prevents successive prosecutions for the same offense; it does not prevent prosecutions for offenses which are separate from and similar to a prior prosecuted offense. Loden v. State, 199 Ga. App. 683, 406 S.E.2d 103 (1991).
Where defendant was convicted of driving under the influence in municipal court and then prosecuted for vehicular homicide and driving under the influence in superior court, the latter prosecution was not barred by principles of double jeopardy since the offenses did not arise from the same transaction and, because the offenses were completed at different times and in different locations, there was no single court with jurisdiction over all the crimes. Lefler v. State, 210 Ga. App. 609, 436 S.E.2d 777 (1993).
Double jeopardy clause did not prohibit additional punishment for a separate offense which the Georgia General Assembly deemed to warrant separate sanction; therefore, the trial court did not err in refusing to merge defendant's armed robbery and hijacking convictions because O.C.G.A. § 16-5-44.1(d) specifically provided that the offense of hijacking would be considered a separate offense and would not merge with any other offense. Boykin v. State, 264 Ga. App. 836, 592 S.E.2d 426 (2003).
- The double jeopardy clause of U.S. Const., amend. 5 protects against: (1) a second prosecution for the same offense after an acquittal; (2) a second prosecution for the same offense after a conviction; and (3) multiple punishments for the same offense. United States v. Johnson, 709 F.2d 639 (11th Cir.), cert. denied, 464 U.S. 1010, 104 S. Ct. 531, 78 L. Ed. 2d 713 (1983).
A defendant should not be forced to defend against charges or factual allegations that the defendant overcame in an earlier trial. Albert v. Montgomery, 732 F.2d 865 (11th Cir. 1984).
Jury, in acquitting defendant of malice murder, felony murder, and aggravated assault at a prior trial, necessarily determined that defendant acted in self-defense, and self-defense was an element of voluntary manslaughter. Therefore, double jeopardy and collateral estoppel barred the state from re-prosecuting the defendant for voluntary manslaughter. Roesser v. State, 294 Ga. 295, 751 S.E.2d 297 (2013).
Questions of double jeopardy in Georgia must be determined under the expanded statutory proscriptions found in O.C.G.A. §§ 16-1-6,16-1-7, and16-1-8, which place limitations upon multiple prosecutions, convictions, and punishments for the same criminal conduct. Stone v. State, 166 Ga. App. 245, 304 S.E.2d 94 (1983).
O.C.G.A. §§ 16-1-7 and 16-1-8 are broader in scope than constitutional standards regarding double jeopardy. Trimble v. State, 156 Ga. App. 9, 274 S.E.2d 10 (1980), overruled on other grounds, McCannon v. State, 252 Ga. 515, 315 S.E.2d 413 (1984).
Continuation of a trial for two months before the same jury, absent exceptional circumstances or consent of the parties, was improper; however, the continuance did not constitute a "termination" within the meaning of O.C.G.A. § 16-1-8 and later proceedings were not barred by double jeopardy; overruling Paquin v. Town of Tyrone, 261 Ga. 418, 405 S.E.2d 497 (1991). Morris v. State, 264 Ga. 823, 452 S.E.2d 100 (1995).
- The Criminal Code of Georgia, enacted by Ga. L. 1968, p. 1249, expanded the proscription of double jeopardy beyond that provided for in the federal and state Constitutions. Therefore questions of double jeopardy in this state must now be determined under the expanded statutory proscriptions of Code Ann. §§ 26-506, 26-506, and 26-507 (see O.C.G.A. §§ 16-1-6 through16-1-8). Consequently, previous Georgia decisions applying constitutional standards of double jeopardy will generally not be applicable. State v. Estevez, 232 Ga. 316, 206 S.E.2d 475 (1974), overruled on other grounds by Drinkard v. Walker, 281 Ga. 211, 636 S.E.2d 530, 2006 Ga. LEXIS 840 (2006); State v. Warren, 133 Ga. App. 793, 213 S.E.2d 53 (1975).
Bar to successive prosecutions is referred to as the procedural aspect of the double jeopardy rule. Keener v. State, 238 Ga. 7, 230 S.E.2d 846 (1976), cert. denied, 433 U.S. 911, 97 S. Ct. 2980, 53 L. Ed. 2d 1096 (1977).
Rationale behind the bar to successive prosecutions is to prevent harassment of the accused. Keener v. State, 238 Ga. 7, 230 S.E.2d 846 (1976), cert. denied, 433 U.S. 911, 97 S. Ct. 2980, 53 L. Ed. 2d 1096 (1977).
Bar to multiple convictions is referred to as the substantive aspect of the double jeopardy rule. Keener v. State, 238 Ga. 7, 230 S.E.2d 846 (1976), cert. denied, 433 U.S. 911, 97 S. Ct. 2980, 53 L. Ed. 2d 1096 (1977).
Rationale behind the bar to multiple convictions is to prevent multiple and excessive punishments. Keener v. State, 238 Ga. 7, 230 S.E.2d 846 (1976), cert. denied, 433 U.S. 911, 97 S. Ct. 2980, 53 L. Ed. 2d 1096 (1977).
Double jeopardy clause provides three related protections: protection against a second prosecution for the same offense after acquittal; protection against a second prosecution for the same offense after conviction; and protection against multiple punishments for the same offense. United States v. Dunbar, 591 F.2d 1190 (5th Cir. 1979), aff'd, 611 F.2d 985 (5th Cir.), cert. denied, 447 U.S. 926, 100 S. Ct. 3022, 65 L. Ed. 2d 1120 (1980); United States v. Cowart, 595 F.2d 1023 (5th Cir. 1979).
The double jeopardy clause affords the defendant three basic protections. The clause protects against a second prosecution for the same offense after acquittal, against a second prosecution for the same offense after conviction, and against multiple punishments for the same offense. United States v. Cochran, 883 F.2d 1012 (11th Cir. 1989).
Fundamental protection against double jeopardy guards against the risk or potential that an accused may again be convicted of the same offense for which the accused was initially tried. Price v. Georgia, 398 U.S. 323, 90 S. Ct. 1757, 26 L. Ed. 2d 300 (1970); Calley v. Callaway, 382 F. Supp. 650 (M.D. Ga. 1974), rev'd on other grounds, 519 F.2d 184 (5th Cir. 1975), cert. denied, 425 U.S. 911, 96 S. Ct. 1505, 47 L. Ed. 2d 760 (1976); Redd v. State, 242 Ga. 876, 252 S.E.2d 383, cert. denied, 442 U.S. 934, 99 S. Ct. 2870, 61 L. Ed. 2d 304 (1979).
The state with all its resources and power should not be allowed to make repeated attempts to convict an individual for an alleged offense, thereby subjecting that individual to embarrassment, expense, and ordeal and compelling the individual to live in a continuing state of anxiety and insecurity, as well as enhancing the possibility that, even though innocent, the individual may be found guilty. United States v. Starling, 571 F.2d 934 (5th Cir. 1978); United States v. Tammaro, 636 F.2d 100 (5th Cir. 1981).
The double jeopardy clause forbids a second trial for the purpose of affording the prosecution another opportunity to supply evidence which it failed to muster in the first proceeding. United States v. Bizzard, 493 F. Supp. 1084 (S.D. Ga. 1980), aff'd, 674 F.2d 1382 (11th Cir.), cert. denied, 459 U.S. 973, 103 S. Ct. 305, 74 L. Ed. 2d 286 (1982).
The double jeopardy clause bars retrial where bad faith conduct by judge or prosecutor, threatens the harassment of an accused by successive prosecutions or declaration of a mistrial so as to afford the prosecution a more favorable opportunity to convict the defendant. Chatham v. State, 247 Ga. 95, 274 S.E.2d 473 (1981).
Prohibition against double jeopardy is not against being twice punished, but against being twice put in jeopardy. Price v. Georgia, 398 U.S. 323, 90 S. Ct. 1757, 26 L. Ed. 2d 300 (1970); Redd v. State, 242 Ga. 876, 252 S.E.2d 383, cert. denied, 442 U.S. 934, 99 S. Ct. 2870, 61 L. Ed. 2d 304 (1979).
- Double jeopardy clause is written in terms of potential or risk of trial and conviction, not punishment. Redd v. State, 242 Ga. 876, 252 S.E.2d 383, cert. denied, 442 U.S. 934, 99 S. Ct. 2870, 61 L. Ed. 2d 304 (1979).
Multiple conviction and punishment for the same offense is prohibited. Calley v. Callaway, 382 F. Supp. 650 (M.D. Ga. 1974), rev'd on other grounds, 519 F.2d 184 (5th Cir. 1975), cert. denied, 425 U.S. 911, 96 S. Ct. 1505, 47 L. Ed. 2d 760 (1976).
- If multiple convictions arising out of a single prosecution are barred, they will likewise be barred from successive prosecution. Keener v. State, 238 Ga. 7, 230 S.E.2d 846 (1976), cert. denied, 433 U.S. 911, 97 S. Ct. 2980, 53 L. Ed. 2d 1096 (1977).
- Trial court did not err in granting the state's motion to set aside defendant's plea agreement and retry defendant for the crimes covered by that agreement, as defendant breached the agreement by agreeing to testify truthfully in exchange for a lesser sentence and then falsely testified at a codefendant's trial that defendant was not involved in an armed robbery that defendant had admitted being involved in at defendant's plea agreement hearing; defendant could not argue that trying defendant on the crimes that were the subject of the plea agreement violated double jeopardy principles since defendant chose to voluntarily violate the plea agreement and a double jeopardy argument was not available to shield defendant from the consequences of a defendant's voluntary choice. Brown v. State, 261 Ga. App. 115, 582 S.E.2d 13 (2003).
- The criminal and administrative conviction and punishment of a defendant for the same act does not constitute double jeopardy. Culbertson v. State, 198 Ga. App. 513, 402 S.E.2d 111 (1991).
Suspension of defendant's operator's license pursuant to administrative proceedings did not constitute former punishment foreclosing prosecution for driving under the influence. Jackson v. State, 218 Ga. App. 677, 462 S.E.2d 802 (1995).
Suspension of a driver's license at an administrative hearing is not punishment, nor is the hearing a prosecution for the purposes of double jeopardy. Kirkpatrick v. State, 219 Ga. App. 307, 464 S.E.2d 882 (1995).
- Double jeopardy did not attach to bar prosecution of a defendant on state drug charges following federal civil forfeiture proceedings because the defendant's failure to contest the forfeiture meant the defendant was not placed in jeopardy in those proceedings and, also, Georgia constitutional and statutory provisions did not bar the prosecution because they apply only to criminal proceedings, not civil proceedings. Waye v. State, 219 Ga. App. 22, 464 S.E.2d 19 (1995); Lundy v. State, 226 Ga. App. 197, 482 S.E.2d 516 (1997).
The forfeiture proceeding under O.C.G.A. § 16-13-49 is legitimately a civil sanction and does not constitute punishment for purposes of double jeopardy. Murphy v. State, 267 Ga. 120, 475 S.E.2d 907 (1996); Rojas v. State, 226 Ga. App. 688, 487 S.E.2d 455 (1997); Cuellar v. State, 230 Ga. App. 203, 496 S.E.2d 282 (1998).
- A defendant's complaint that the defendant's indictment as a recidivist violated the double jeopardy clause was patently without merit. McCoy v. Newsome, 953 F.2d 1252 (11th Cir.), cert. denied, 504 U.S. 944, 112 S. Ct. 2283, 119 L. Ed. 2d 208 (1992).
- Reprosecution of a defendant on a substantive count alleging violation of the federal civil rights law, after the defendant's acquittal on a conspiracy count, was not a successive prosecution barred by double jeopardy but rather, a mere continuation of the initial prosecution, and the second prosecution on the substantive count therefore did not implicate the double jeopardy clause. United States v. Farmer, 923 F.2d 1557 (11th Cir. 1991).
- Reasonable doubts must be resolved in favor of the accused in double jeopardy cases. United States v. Starling, 571 F.2d 934 (5th Cir. 1978).
- The second provision of U.S. Const., amend. 5 "nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb," is a personal privilege which may be waived. Barkman v. Sanford, 162 F.2d 592 (5th Cir.), cert. denied, 332 U.S. 816, 68 S. Ct. 155, 92 L. Ed. 393 (1947).
- Before a person can be said to have been put in jeopardy of life or limb the court in which the person was acquitted or convicted must have had jurisdiction to try the person for the offense charged. Stephens v. Zant, 631 F.2d 397 (5th Cir. 1980), modified, 648 F.2d 446, (5th Cir.), cert. denied, 451 U.S. 909, 101 S. Ct. 1979, 68 L. Ed. 2d 298 (1981), rev'd on other grounds, 462 U.S. 862, 103 S. Ct. 2733, 77 L. Ed. 2d 235 (1983).
A person is not put in jeopardy unless the court in which the person was tried the first time had jurisdiction to try the person for the charge the person now seeks to avoid. Potts v. Zant, 575 F. Supp. 374 (N.D. Ga. 1983), aff'd, 734 F.2d 526 (11th Cir. 1984), cert. denied, 475 U.S. 1068, 106 S. Ct. 1386, 89 L. Ed. 2d 610, judgment vacated, 478 U.S. 1017, 106 S. Ct. 3328, 92 L. Ed. 2d 734 (1986), (remanded for further consideration in light of Rose v. Clark, 478 U.S. 570 (1986)), aff'd, 814 F.2d 1512 (11th Cir. 1987), cert. denied, 493 U.S. 876, 110 S. Ct. 214, 107 L. Ed. 2d 166 (1989).
An acquittal before a court having no jurisdiction is absolutely void, and therefore no bar to subsequent indictment and trial in a court which has jurisdiction of the offense. Stephens v. Zant, 631 F.2d 397 (5th Cir. 1980), cert. denied, 454 U.S. 1035, 102 S. Ct. 575, 70 L. Ed. 2d 480 (1981), rev'd on other grounds, 462 U.S. 862, 103 S. Ct. 2733, 77 L. Ed. 2d 235 (1983).
Failure to establish venue does not bar re-trial in a court where venue is proper and proven. Kimmel v. State, 261 Ga. 332, 404 S.E.2d 436 (1991).
Failure to properly establish venue does not bar retrial, because evidence of venue does not go to the guilt or innocence of the accused, and hence it does not invoke double jeopardy concerns. Jones v. State, 272 Ga. 900, 537 S.E.2d 80 (2000).
"Jeopardy," in its constitutional and common law sense, has a strict application to criminal prosecutions only. Cushway v. State Bar, 120 Ga. App. 371, 170 S.E.2d 732 (1969), cert. denied, 398 U.S. 910, 90 S. Ct. 1705, 26 L. Ed. 2d 71 (1970).
Only actions intended to authorize criminal punishment, as distinguished from remedial actions, subject the defendant to jeopardy. Cushway v. State Bar, 120 Ga. App. 371, 170 S.E.2d 732 (1969), cert. denied, 398 U.S. 910, 90 S. Ct. 1705, 26 L. Ed. 2d 71 (1970).
- While the idea of double jeopardy normally arises from an accused's involvement in two proceedings, it is not necessary that there be two proceedings before jeopardy can attach twice. Calley v. Callaway, 382 F. Supp. 650 (M.D. Ga. 1974), rev'd on other grounds, 519 F.2d 184 (5th Cir. 1975), cert. denied, 425 U.S. 911, 96 S. Ct. 1505, 47 L. Ed. 2d 760 (1976).
- The pendency of a former indictment for the same offense does not provide a ground for a plea of double jeopardy because even if an accused has been arraigned and has entered a plea, the accused is not placed in jeopardy until a jury is impanelled and sworn. Teal v. State, 203 Ga. App. 440, 417 S.E.2d 666, cert. denied, 203 Ga. App. 908, 417 S.E.2d 666 (1992).
The pendency of a prior indictment for the same offense based on the same facts for which the defendant was arraigned and entered a plea did not place the defendant in jeopardy. The defendant did not face a repeated prosecution simply because the defendant was tried on a subsequent indictment. Hubbard v. State, 225 Ga. App. 154, 483 S.E.2d 115 (1997).
- If a prior indictment is dismissed, the government is not barred from using the underlying facts in that offense as the basis for a charge that the defendant committed a different offense. United States v. Nixon, 634 F.2d 306 (5th Cir.), cert. denied, 454 U.S. 828, 102 S. Ct. 120, 70 L. Ed. 2d 103 (1981).
- A defendant is not placed in double jeopardy just because the same witnesses testify in the second trial and much of the same evidence is introduced. United States v. Dunbar, 591 F.2d 1190 (5th Cir. 1979), aff'd, 611 F.2d 985 (5th Cir. 1980), cert. denied, 447 U.S. 926, 100 S. Ct. 3022, 65 L. Ed. 2d 1120 (1980).
- Double jeopardy clause does not prohibit the bifurcated trial of a case in which the death penalty may be imposed for the reason that although such a trial is divided into two stages, it is but one trial. Peek v. State, 239 Ga. 422, 238 S.E.2d 12 (1977), cert. denied, 439 U.S. 882, 99 S. Ct. 218, 58 L. Ed. 2d 194 (1978).
With respect to cumulative sentences imposed in single trial, the double jeopardy clause does no more than prevent the sentencing court from prescribing greater punishment than the Legislature intended. United States v. Eley, 723 F.2d 1522 (11th Cir. 1984).
- Upon defendant's conviction of three counts of homicide by vehicle (O.C.G.A. § 40-6-393) through a violation of O.C.G.A. § 40-6-391, driving under the influence, it was not a violation of double jeopardy to sentence defendant to 15 years for each of the homicide counts. Cox v. State, 243 Ga. App. 668, 533 S.E.2d 435 (2000).
- The failure to file a written plea of former jeopardy prior to trial will not defeat an accused's right to be free of multiple convictions for the criminal act. McClure v. State, 179 Ga. App. 245, 345 S.E.2d 922 (1986); Dotson v. State, 213 Ga. App. 7, 443 S.E.2d 650 (1994).
- The procedural bar against double jeopardy can, at least in some circumstances, be waived by failure to assert it in writing prior to trial. McClure v. State, 179 Ga. App. 245, 345 S.E.2d 922 (1986).
Double jeopardy clause, by its own terms, applies to retrial for same offense. Neal v. State, 159 Ga. App. 450, 283 S.E.2d 671 (1981).
- The double jeopardy clause's general prohibition against successive prosecutions does not prevent the government from retrying a defendant who succeeds in getting the first conviction set aside because of some error in the proceedings leading to conviction. Allen v. State, 262 Ga. 240, 416 S.E.2d 290 (1992).
After the defendant's conviction for possession of cocaine was reversed due to a finding that trial counsel rendered ineffective assistance for failing to object to the admission of cocaine without establishing an adequate chain of custody, and for failing to preserve objections to the jury instructions, retrial was not barred by the double jeopardy clause of Ga. Const. 1983, Art. I, Sec. I, Para. XVIII and U.S. Const., amend. 5, as the evidence offered by the state and admitted by the trial court - whether erroneous or not - would have been sufficient to sustain a guilty verdict against the defendant. Wilson v. State, 271 Ga. App. 359, 609 S.E.2d 703 (2005).
Double Jeopardy Clause in U.S. Const., amend. V and Ga. Const. 1983, Art. I, Sec. I, Para. XVIII did not bar a second trial on the same charges because the defendant's motion for new trial was granted due to an erroneous evidentiary ruling. State v. Caffee, 291 Ga. 31, 728 S.E.2d 171 (2012).
- Where the defendant's identity as the perpetrator of two separate offenses of rape was in dispute, the jury's acquittal of the defendant on the earlier charge resolved the "identity" factor in the defendant's favor and the state could not relitigate the issue in the later trial. Lucas v. State, 178 Ga. App. 150, 342 S.E.2d 377 (1986).
- The defendant was not placed in double jeopardy by a second prosecution for driving under the influence, even though the second incident occurred prior to the filing of the first accusation upon which the defendant was convicted and the state failed to allege the date of the first offense, since the pending charge stemmed from a different incident than the first. Grogan v. State, 179 Ga. App. 300, 346 S.E.2d 378 (1986).
- Because, in the first trial, the trial court never dismissed the lesser-included offense but merely agreed not to submit it to the first jury as a separate count, under Georgia law the defendant was at risk, both in the first and second trials, of being convicted of violating the defendant's oath as a public officer, a lesser-included offense of the bribery count. The double jeopardy clause of the Fifth Amendment did not prohibit submission of that issue to the second jury, following a hung jury in the first trial. Nave v. Helms, 845 F.2d 963 (11th Cir. 1988).
- If victim of felony dies as a result of that felony after defendant has already been convicted of the felony, double jeopardy considerations do not prevent subsequent prosecution for felony-murder. Bell v. State, 249 Ga. 644, 292 S.E.2d 402 (1982).
Dismissal of a rule nisi, without prejudice, by the court in a parole revocation case where the state is not ready to proceed is, in effect, dismissal of the court's own show-cause order to appellant, and not a ruling on the merits of the probation revocation; and, absent abuse, such action does not subject a parolee to double jeopardy nor denial of due process of law. Brooks v. State, 162 Ga. App. 485, 292 S.E.2d 89 (1982).
Double jeopardy clause applies to juvenile proceedings. United States v. Whitney, 632 F.2d 654 (5th Cir. 1980), aff'd, 649 F.2d 296 (5th Cir.), cert. denied, 450 U.S. 969, 101 S. Ct. 1490, 67 L. Ed. 2d 620 (1981); United States v. Whitney, 649 F.2d 296 (5th Cir. 1981); In re J.B.W., 230 Ga. App. 673, 497 S.E.2d 1 (1998).
- Provision permitting the juvenile court to extend an order of disposition for two years does not violate constitutional prohibitions against double jeopardy since it operates to further the accomplishment of the juvenile's treatment and rehabilitation. In re T.B., 268 Ga. 149, 486 S.E.2d 177 (1997).
- Incarceration of the defendant resulting from the improper revocation of the defendant's bond was not a bar to prosecution for vehicular homicide and related offenses. Shaw v. State, 225 Ga. App. 193, 483 S.E.2d 646 (1997).
Parole and probation revocation proceedings do not constitute a stage of a criminal prosecution. United States v. Whitney, 632 F.2d 654 (5th Cir. 1980), aff'd, 649 F.2d 296 (5th Cir.), cert. denied, 450 U.S. 969, 101 S. Ct. 1490, 67 L. Ed. 2d 620 (1981); United States v. Whitney, 649 F.2d 296 (5th Cir. 1981).
Permitting defendant to be prosecuted in successive actions for probation revocation based on violations that were part of the same conduct did not violate double jeopardy. Perry v. State, 213 Ga. App. 220, 444 S.E.2d 150 (1994).
Double jeopardy clause is not applicable to parole or probation revocation proceedings. United States v. Whitney, 632 F.2d 654 (5th Cir. 1980), aff'd, 649 F.2d 296 (5th Cir.), cert. denied, 450 U.S. 969, 101 S. Ct. 1490, 67 L. Ed. 2d 620 (1981); United States v. Whitney, 649 F.2d 296 (5th Cir. 1981).
Double jeopardy clause does not bar consideration of certain acts in probation revocation proceedings where those acts formed the basis of a previous parole revocation. United States v. Whitney, 632 F.2d 654 (5th Cir. 1980), aff'd, 649 F.2d 296 (5th Cir.), cert. denied, 450 U.S. 969, 101 S. Ct. 1490, 67 L. Ed. 2d 620 (1981); United States v. Whitney, 649 F.2d 296 (5th Cir. 1981).
- Double jeopardy protection does not preclude the use of a crime, for which a probationer has been acquitted by a jury, as a ground for revocation of probation. Johnson v. State, 240 Ga. 526, 242 S.E.2d 53, cert. denied, 439 U.S. 881, 99 S. Ct. 221, 58 L. Ed. 2d 194 (1978).
- Constitutional prohibition against double jeopardy is inapplicable to cases of contempt. Sumbry v. Land, 127 Ga. App. 786, 195 S.E.2d 228 (1972), cert. denied, 414 U.S. 1079, 94 S. Ct. 598, 38 L. Ed. 2d 486 (1973).
- The provision of U.S. Const., amend. 5, "nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb", is applicable to courts martial. The immediately preceding exception of "cases arising in the land or naval forces" from the requirement of an indictment, abundantly shows that such cases were in contemplation but not excepted from the other provisions. Sanford v. Robbins, 115 F.2d 435 (5th Cir. 1940), cert. denied, 312 U.S. 697, 61 S. Ct. 737, 85 L. Ed. 1132 (1941).
- In a court-martial, former conviction is a defense to be heard in the exercise of jurisdiction, and not a fact destroying jurisdiction. The defense must be claimed and is waived by not asserting it. When claimed and adversely determined, there is an adjudication which if not reviewed is conclusive. Sanford v. Robbins, 115 F.2d 435 (5th Cir. 1940), cert. denied, 312 U.S. 697, 61 S. Ct. 737, 85 L. Ed. 2d 1132 (1941).
- The investigation of the character and fitness of an applicant to take a bar examination is not a criminal proceeding, and the principle of double jeopardy has no application to such investigation. Therefore, the dismissal of an investigation, without action, when it is learned that an individual has failed to pass an examination, does not preclude a new investigation into an incident on the individual reapplication to take the examination. Gardner v. Gwinnett Circuit Bar Ass'n, 241 Ga. 614, 247 S.E.2d 64 (1978).
- The accused in a disciplinary proceeding by the State Bar of Georgia is not placed in jeopardy of life or liberty since the power of the grievance tribunal is limited to making findings of fact and recommendations to the court as to appropriate sanctions, and the power of the court is limited to reprimanding, suspending or disbarring. A matter is criminal only if imprisonment or the assessment of a fine may follow conviction. Cushway v. State Bar, 120 Ga. App. 371, 170 S.E.2d 732 (1969), cert. denied, 398 U.S. 910, 90 S. Ct. 1705, 26 L. Ed. 2d 71 (1970).
No double jeopardy can arise out of a decision in an extradition proceeding. Broughton v. Griffin, 244 Ga. 365, 260 S.E.2d 75 (1979).
- While the grant of a writ of habeas corpus is generally to be given res judicata effect in a subsequent habeas proceeding based on the same issues of law and fact, where a previous writ of habeas corpus in an extradition proceeding was granted because of the insufficiency of the supporting documents or other technical defects which may be subsequently corrected, the prior judgment granting the writ of habeas corpus will not be res judicata in a subsequent extradition demand brought to avoid the technical objections fatal to the first proceeding. Broughton v. Griffin, 244 Ga. 367, 260 S.E.2d 75 (1979).
- Introduction of evidence of a previous incident in which the defendant had attacked someone but had been found not guilty of aggravated assault by reason of insanity, admitted as a similar transaction solely to prove the defendant's motive, bent of mind, plan, scheme, course of conduct or other matters dependent on a person's state of mind, permitted the jury to determine that the defendant had made the first attack with criminal intent although the defendant had already been found by a jury to have acted without criminal intent at that time. Accordingly, the defendant was subjected to double jeopardy when that issue was permitted to be retried, and it could not be said beyond a reasonable doubt that the error did not contribute to the jury's verdict of guilty. Riley v. State, 181 Ga. App. 667, 353 S.E.2d 598 (1987).
- The attempt to transfer a juvenile to superior court after an adjudicatory hearing violates O.C.G.A. § 15-11-39(a) and places the juvenile in jeopardy twice, in violation of the fifth and fourteenth amendments. In re T.E.D., 169 Ga. App. 401, 312 S.E.2d 864 (1984).
- Court's increase in the amount of the child-support payments pursuant to the provisions of O.C.G.A. § 42-8-34 does not constitute double punishment or jeopardy. Hudson v. State, 248 Ga. 397, 283 S.E.2d 271 (1981).
Evidentiary use of independent offenses is not per se prohibited where an acquittal was obtained; rather, the application of collateral estoppel requires an examination of what facts were in issue and necessarily resolved in the defendant's favor at the first trial. Moore v. State, 254 Ga. 674, 333 S.E.2d 605 (1985).
- A plea of former conviction is good as against demurrer (now motion to dismiss) only when it sets out the record of the former trial and conviction and judgment, and such a state of facts as will show that the former conviction was for the same offense for which the defendant is about to be arraigned. Gresham v. State, 52 Ga. App. 77, 182 S.E. 416 (1935).
- A motion in arrest of judgment, being narrow and restricted in its province, is limited to the face of the pleadings in determining whether a violation of the constitutional double jeopardy provisions is presented by the record. Hall v. State, 202 Ga. 42, 42 S.E.2d 130 (1947).
- The district courts, in any denial of a double jeopardy motion, should make written findings determining whether the motion is frivolous or nonfrivolous, and if the claim is found to be frivolous, the filing of a notice of appeal by the defendant shall not divest the district court of jurisdiction over the case. United States v. Dunbar, 611 F.2d 985 (5th Cir.), aff'd on reh'g, 614 F.2d 39 (5th Cir.), cert. denied, 447 U.S. 926, 100 S. Ct. 3022, 65 L. Ed. 2d 1120 (1980).
- In all pleas of former acquittal or conviction, proof of the plea has to consist partly of matter of record and partly not of record. The identity of the two cases is the part of the plea which it is the peculiar business of the evidence, which is not of record, to make out. Gower v. State, 71 Ga. App. 127, 30 S.E.2d 298 (1944).
- In considering a double jeopardy motion, the district court must determine whether a defendant has tendered a prima facie nonfrivolous double jeopardy claim before shifting the burden of persuasion to the government. United States v. Dunbar, 611 F.2d 985 (5th Cir.), aff'd on reh'g, Windsor v. State, 122 Ga. App. 767, 178 S.E.2d 751 (1970), cert. denied, 447 U.S. 926, 100 S. Ct. 3022, 65 L. Ed. 2d 1120 (1980); United States v. Futch, 637 F.2d 386 (5th Cir. 1981).
- To satisfy the test of frivolousness it is essential to find beyond doubt and under any arguable construction, both in law and in fact of the substance of the plaintiff's claim that he would not be entitled to relief. United States v. Bizzard, 493 F. Supp. 1084 (S.D. Ga. 1980), aff'd, 674 F.2d 1382 (11th Cir.), cert. denied, 459 U.S. 973, 103 S. Ct. 305, 74 L. Ed. 2d 286 (1982).
- The federal district courts, in any denial of a double jeopardy motion, should make written findings determining whether the motion is frivolous or nonfrivolous. If the claim is found to be frivolous, the filing of a notice of appeal by the defendant shall not divest the district court of jurisdiction over the case. If nonfrivolous the trial cannot proceed until a determination is made of the merits of an appeal. United States v. Bizzard, 493 F. Supp. 1084 (S.D. Ga. 1980), aff'd, 674 F.2d 1382 (11th Cir.), cert. denied, 459 U.S. 973, 103 S. Ct. 305, 74 L. Ed. 2d 286 (1982).
A timely filed plea of double jeopardy is directly appealable without resort to the interlocutory appeal procedures set forth in O.C.G.A. § 5-6-34. Rogers v. State, 166 Ga. App. 299, 304 S.E.2d 108 (1983).
- Jury instructions that altered an essential element of the offense of conspiracy to rob, and thereby broadened the possible bases for conviction by allowing the jury to convict the defendant if the defendant conspired with anyone, when the indictment alleged the defendant conspired solely with a named individual, constituted a constructive amendment of the indictment and therefore violated the defendant's Fifth Amendment right to be charged by grand jury indictment. United States v. Keller, 916 F.2d 628 (11th Cir. 1990), cert. denied, 499 U.S. 978, 111 S. Ct. 1628, 113 L. Ed. 2d 724 (1991).
- Georgia does not recognize an inconsistent verdict rule which would permit a defendant to challenge the factual findings underlying a guilty verdict on one count as inconsistent with the findings underlying a not guilty verdict on a different count. A conviction on one count and an acquittal on another related count may reflect a compromise or lenity by the jury rather than inconsistent factual conclusions and Georgia courts will generally not look behind the jury's decision to convict on certain counts and acquit on certain counts. Furthermore, a trial court's request that a jury continue deliberations after the jury failed to comply with the court's instructions concerning a mutually exclusive verdict was proper. Easley v. State, 262 Ga. App. 144, 584 S.E.2d 629 (2003).
Provisions of the Tort Reform Act (O.C.G.A. § 51-12-5.1), relating to punitive damages, violated the due process and equal protection clauses of the federal and state constitutions, violated the excessive fines provisions of both constitutions, and violated the double jeopardy provision of the Fifth Amendment to the federal constitution. McBride v. GMC, 737 F. Supp. 1563 (M.D. Ga. 1990).
- Because a jury's verdict found the defendant "guilty" of only the "intent" to traffic in narcotics, a rewritten verdict for "attempt" was void for double jeopardy since the original verdict amounted to an acquittal. Douglas v. State, 206 Ga. App. 740, 426 S.E.2d 628 (1992).
- Because defendant pled guilty to four misdemeanor counts of public indecency based on one lewd act witnessed by several school children, and willingly and knowingly accepted the specified sentences as to the four counts, the defendant waived any claim before the habeas court that there was in fact only one act and that the resulting sentences were void on double jeopardy grounds. Turner v. State, 284 Ga. 494, 668 S.E.2d 692 (2008).
Trial court erred in granting the defendant's plea in bar because double jeopardy did not bar a second trial on the same charges since the retrial was granted due to an erroneous evidentiary ruling; the order granting a new trial did not find the evidence was legally insufficient to sustain the verdict, but instead, the second trial judge granted the new trial based on the original trial court's error in admitting an exhibit to prove that defendant had a prior felony conviction after the defendant offered to stipulate that the defendant was a convicted felon. State v. Caffee, 291 Ga. 31, 728 S.E.2d 171 (2012).
- The threshold question to be addressed in any case involving double jeopardy is whether jeopardy has attached to the defendant during the proceedings which the defendant contends preclude further prosecution. Haynes v. State, 245 Ga. 817, 268 S.E.2d 325 (1980).
Where the Georgia Supreme Court had previously ruled that evidence seized from defendant's former car and apartment had to be suppressed, the trial court was not precluded on double jeopardy grounds from re-hearing the issue of the admissibility of the blood evidence seized from these places pursuant to fresh search warrants. As defendant had never been put to trial, jeopardy had not attached. State v. Lejeune, 277 Ga. 749, 594 S.E.2d 637, cert. denied, 543 U.S. 861, 125 S. Ct. 187, 160 L. Ed. 2d 103 (2004).
Before any double jeopardy considerations arise, one must have been placed in jeopardy. United States v. Pitts, 569 F.2d 343 (5th Cir.), cert. denied, 436 U.S. 959, 98 S. Ct. 3076, 57 L. Ed. 2d 1125 (1978).
Defendant is placed in constitutional jeopardy if, in a court of competent jurisdiction with a sufficient indictment, the defendant has been arraigned, has pled, and a jury has been impaneled and sworn. State v. Martin, 173 Ga. App. 370, 326 S.E.2d 558 (1985).
- Because the defendant's original trial was before a court that lacked jurisdiction the trial court did not err in denying the defendant's plea of former jeopardy. Jackett v. State, 209 Ga. App. 112, 432 S.E.2d 586 (1993).
After a defendant was granted a directed verdict on the basis that the state failed to prove venue in a criminal prosecution for driving under the influence per se, retrial was not barred under U.S. Const., amend. V and O.C.G.A. § 16-1-8 because, while venue had to be laid in the county in which the crime was allegedly committed under Ga. Const. 1983, Art. VI, Sec. II, Para. VI and O.C.G.A. § 17-2-2 and venue was a jurisdictional fact, failure to prove venue was a procedural error that implied nothing as to defendant's guilt or innocence. Hudson v. State, 296 Ga. App. 758, 675 S.E.2d 603, cert. denied, No. S09C1163, 2009 Ga. LEXIS 413 (Ga. 2009); cert. denied, 558 U.S. 1076, 130 S. Ct. 799, 175 L. Ed. 2d 559 (2009).
- Because a uniform traffic citation was deliberately withheld from filing, and the state did not authorize or participate in the prosecution of the case, the probate court lacked authority to accept defendant's plea to the proposed charge and impose a fine, making its resulting judgment void; hence, the trial court did not err in denying defendant's plea in bar based on double jeopardy, since the probate court's void judgment could not serve as the basis for barring the subsequent indictment and prosecution of defendant in the superior court. Roberts v. State, 280 Ga. App. 672, 634 S.E.2d 790 (2006).
Retrial after not guilty finding returned by an unsworn jury was not barred by the double jeopardy principles under both the U.S. and Georgia Constitutions, as said jury lacked any authority to pass upon any of the issues at trial, and hence, could not make any determinations whatsoever as to the defendant's guilt or innocence. Spencer v. State, 281 Ga. 533, 640 S.E.2d 267, cert. denied, 551 U.S. 1103, 127 S. Ct. 2914, 168 L. Ed. 2d 243 (2007).
- If a defendant is tried in one county in a court having jurisdiction of the offense, but the crime occurred in another county, no jeopardy attaches. Schiefelbein v. State, 258 Ga. 623, 373 S.E.2d 354 (1988), cert. denied, 489 U.S. 1026, 109 S. Ct. 1156, 103 L. Ed. 2d 215 (1989).
- For a jury trial, jeopardy attaches when that body is empaneled and sworn. Cushway v. State Bar, 120 Ga. App. 371, 170 S.E.2d 732 (1969), cert. denied, 398 U.S. 910, 9 S. Ct. 1705, 26 L. Ed. 2d 71 (1970); Calley v. Callaway, 382 F. Supp. 650 (M.D. Ga. 1974), rev'd on other grounds, 519 F.2d 184 (5th Cir. 1975), cert. denied sub nom. Calley v. Hoffman, 425 U.S. 911, 96 S. Ct. 1505, 47 L. Ed. 2d 760 (1976); White v. State, 143 Ga. App. 315, 238 S.E.2d 247 (1977); United States v. Pitts, 569 F.2d 343 (5th Cir.), cert. denied, 436 U.S. 959, 98 S. Ct. 3076, 57 L. Ed. 2d 1125 (1978); Haynes v. State, 245 Ga. 817, 268 S.E.2d 325 (1980); United States v. Futch, 637 F.2d 386 (5th Cir. 1981).
Defendants were not placed in jeopardy before the trial court granted the state's Batson challenge and dismissed a jury that was selected to try them on charges of armed robbery and possession of a firearm during the commission of a crime because the jury was never empaneled and sworn, and the trial court did not err when it denied defendants' plea in bar and proceeded with trial. Garlington v. State, 268 Ga. App. 264, 601 S.E.2d 793 (2004).
- For a bench trial, jeopardy attaches when the judge begins to receive evidence. White v. State, 143 Ga. App. 315, 238 S.E.2d 247 (1977); United States v. Pitts, 569 F.2d 343 (5th Cir.), cert. denied, 436 U.S. 959, 98 S. Ct. 3076, 57 L. Ed. 2d 1125 (1978); Haynes v. State, 245 Ga. 817, 268 S.E.2d 325 (1980).
- First jeopardy is complete on the swearing of a jury or on the submission of evidence if the trial is stopped for insufficient cause. Sanford v. Robbins, 115 F.2d 435 (5th Cir. 1940), cert. denied, 312 U.S. 697, 61 S. Ct. 737, 85 L. Ed. 1132 (1941).
- Where amendment of accusation was made in open court prior to the selection of the jury, there was no violation of double jeopardy even though the defendant was not served with the amended accusation until after the jury was selected. Reed v. State, 205 Ga. App. 209, 422 S.E.2d 15, cert. denied, No. S92C1446, 1992 Ga. LEXIS 865 (1992).
Jeopardy does not attach at a probation revocation hearing so as to invoke the double jeopardy clause. Smith v. State, 171 Ga. App. 279, 319 S.E.2d 113 (1984).
- Jeopardy did not attach so as to preclude further proceedings against a juvenile for crimes he admitted at a transfer hearing, where the juvenile court accepted the admission for the limited purpose of determining whether the case should be transferred to superior court. In re M.E.J., 260 Ga. 805, 401 S.E.2d 254 (1991).
- Double jeopardy does not apply in criminal trial where federal civil forfeiture judgment was entered after criminal convictions because the double jeopardy clause reaches only subsequent punishments, not the initial punishment imposed for the criminal act. Durfee v. State, 221 Ga. App. 211, 471 S.E.2d 32 (1996).
- Defendant's conviction of hijacking a motor vehicle and armed robbery were properly entered, despite defendant's contention that the state used the same facts to establish both offenses, and that defendant should have only been convicted of and sentenced for one of the offenses, as: (1) hijacking a motor vehicle was considered a separate offense and did not merge with any other offense; (2) O.C.G.A. § 16-5-44.1 superseded the double jeopardy provisions of O.C.G.A. § 16-1-7 in motor vehicle hijacking cases; (3) O.C.G.A. § 16-5-44.1(d) did not violate the prohibition against double jeopardy, since the double jeopardy clause of the Georgia Constitution did not prohibit additional punishment for a separate offense which the legislature deemed to warrant separate sanction; and (4) defendant failed to offer any evidence in support of defendant's allegation that O.C.G.A. § 16-5-44.1(d) otherwise violated defendant's double jeopardy rights. Holman v. State, 272 Ga. App. 890, 614 S.E.2d 124 (2005).
- Modified merger rule, which speaks to the validity of a verdict on a charge of felony murder when the jury also finds the accused guilty of voluntary manslaughter, is effective at the time the jury renders the jury's verdict and is not destroyed by the granting of a motion for new trial on the voluntary manslaughter charge; likewise, the presence or absence of a separate charge of aggravated assault in the indictment has no effect on a court's application of the modified merger rule because while the existence of a separate aggravated assault charge must be carefully considered in applying the rule and making determinations as to proper sentencing, its existence does not render the rule inapplicable. Williams v. State, 288 Ga. 7, 700 S.E.2d 564 (2010).
There is no meaningful distinction between an implicit acquittal based on a guilty verdict for a lesser included offense and the vacation of a verdict under the modified merger rule because in both cases the accused is placed in jeopardy, the jury is given a full opportunity to return a verdict on the greater charge, and the verdict rendered results in no conviction being entered; in both cases there can be no appeal because the accused's jeopardy has ended, and in both cases double jeopardy prevents retrial. Williams v. State, 288 Ga. 7, 700 S.E.2d 564 (2010).
- Double jeopardy provisions of the Constitution do not prohibit multiple prosecution for the same act if that act constituted an offense against more than one sovereign. Dorsey v. State, 237 Ga. 876, 230 S.E.2d 307 (1976).
As the defendant's theft by taking an automobile occurred in both Georgia and Kentucky, the fact that the defendant was prosecuted in Kentucky did not bar Georgia from also prosecuting the defendant under the dual sovereignty doctrine of the double jeopardy clause; further, O.C.G.A. § 16-1-8(c) was inapplicable because there was not a federal prosecution for the same crime. Jackson v. State, 284 Ga. 826, 672 S.E.2d 640 (2009).
Double jeopardy provision of U.S. Const., amend. 5 does not bar federal prosecution despite a previous conviction or acquittal in the state courts based on the same act. Jolley v. United States, 232 F.2d 83 (5th Cir. 1956).
An act denounced as a crime by both national and state sovereignties may be punished by each without violation of the double jeopardy provision. Screws v. United States, 325 U.S. 91, 65 S. Ct. 1031, 89 L. Ed. 1495 (1945).
- The test for determining if there is a fatal identity between the crime and the ordinance is whether the ordinance contains an ingredient or element, essential to the city's peace but not essential to the state offense, or if the offense created by the ordinance lacks some element essential to the state crime. Barrett v. State, 123 Ga. App. 210, 180 S.E.2d 271 (1971).
- Prosecutions of the same defendant in different courts of the same state, one prosecution being for a felony and the other being for a misdemeanor which was included in the felony offense, must be viewed as the acts of a single sovereign under the double jeopardy clause. Brock v. State, 146 Ga. App. 78, 245 S.E.2d 442 (1978).
- Since the facts necessary to prove the federal charges of kidnapping and interstate travel with intent to commit murder for extortion are different from the facts necessary to prove the Georgia charges of murder and aggravated assault, there was no violation of Georgia's statutes barring multiple prosecutions, O.C.G.A. §§ 16-1-7,16-1-8, nor the constitutional prohibition against double jeopardy, when the defendants were prosecuted in federal and state courts for all of the above offenses. Satterfield v. State, 256 Ga. 593, 351 S.E.2d 625 (1987).
- Where a criminal defendant goes on a multi-county crime spree, the double jeopardy clause does not preclude successive prosecutions in separate counties for separate crimes arising out of a single criminal episode - even if they have factual elements in common - where they are not the "same offense" as a matter of fact or of law. Potts v. State, 261 Ga. 716, 410 S.E.2d 89 (1991).
- A prosecution for a lesser included offense, which includes the underlying felony in a felony murder case, after a conviction for the greater offense in a different county violates O.C.G.A. § 16-1-6, Ga. Const. 1983, Art. I, Sec. I, Para. XVIII, and the fifth and fourteenth amendments to the United States Constitution. Perkinson v. State, 273 Ga. 491, 542 S.E.2d 92 (2001).
Prohibition against double jeopardy forbids double punishment for what is the same offense, not eo nomine, but the same transaction. Calley v. Callaway, 382 F. Supp. 650 (M.D. Ga. 1974), rev'd on other grounds, 519 F.2d 184 (5th Cir. 1975), cert. denied sub nom. Calley v. Hoffman, 425 U.S. 911, 96 S. Ct. 1505, 47 L. Ed. 2d 760 (1976).
Double jeopardy clause's prohibition of multiple punishments for the same offense is not violated as long as the "same evidence" test is satisfied. Where the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one, is whether each provision requires proof of a fact which the other does not. Hardwick v. Doolittle, 558 F.2d 292 (5th Cir. 1977), cert. denied, 434 U.S. 1049, 98 S. Ct. 897, 54 L. Ed. 2d 801 (1978).
To support a claim of double jeopardy, a defendant must show that the two offenses charged are the same in law and fact. United States v. Futch, 637 F.2d 386 (5th Cir. 1981); United States v. Henry, 661 F.2d 894 (5th Cir. 1981), cert. denied, 455 U.S. 992, 102 S. Ct. 1619, 71 L. Ed. 2d 853 (1982).
Doctrine of collateral estoppel is a part of U.S. Const., amend. 5's guarantee against double jeopardy. Clark v. State, 144 Ga. App. 69, 240 S.E.2d 270 (1977).
Collateral estoppel means that when an issue of ultimate fact has once been determined by a valid and final judgment, the issue cannot again be litigated between the same parties in a future lawsuit. In a criminal case it is a protection embodied in the Fifth Amendment guarantee against double jeopardy. United States v. Mulherin, 710 F.2d 731 (11th Cir.), cert. denied, 464 U.S. 964, 104 S. Ct. 402, 78 L. Ed. 2d 343 (1983), cert. denied, 465 U.S. 1034, 104 S. Ct. 1305, 79 L. Ed. 2d 703 (1984).
But the concept of collateral estoppel is distinct from double jeopardy in the sense that the traditional bar of double jeopardy prohibits the prosecution of the crime itself, whereas collateral estoppel, in a more modest fashion, simply forbids the government from relitigating certain facts in order to establish the fact of the crime. United States v. Mulherin, 710 F.2d 731 (11th Cir.), cert. denied, 464 U.S. 964, 104 S. Ct. 402, 78 L. Ed. 2d 343 (1983), cert. denied, 465 U.S. 1034, 104 S. Ct. 1305, 79 L. Ed. 2d 703 (1984).
Second prosecution for the same offense occurs when the state attempts to relitigate issues of fact necessarily determined in a defendant's favor at a prior trial. Hardwick v. Doolittle, 558 F.2d 292 (5th Cir. 1977), cert. denied, 434 U.S. 1049, 98 S. Ct. 897, 54 L. Ed. 2d 801 (1978).
Test of whether collateral estoppel bars later prosecution is whether the jury could not have rationally based its verdict on any other issue than the one the defendants seek to foreclose. That the jury may have based its verdict on this issue is not enough; the defendant has the burden to show that an issue was necessarily determined in the defendant's favor in the former trial. United States v. Mulherin, 710 F.2d 731 (11th Cir.), cert. denied, 464 U.S. 964, 104 S. Ct. 402, 78 L. Ed. 2d 343 (1983), cert. denied, 465 U.S. 1034, 104 S. Ct. 1305, 79 L. Ed. 2d 703 (1984).
Although collateral estoppel is a corollary of the double jeopardy clause, a defendant may not invoke collateral estoppel unless the facts sought to be foreclosed were determined in the defendant's favor in the prior trial. Humphrey v. United States, 888 F.2d 1546 (11th Cir. 1989).
Even assuming arguendo that the defendant's position that O.C.G.A. § 40-6-395 set out two distinct offenses, wilful failure to stop and fleeing and eluding a police officer, the defendant was tried, first in a bench trial and again on remand after an appeal, on an accusation charging the defendant with fleeing and eluding an officer and was found guilty and sentenced both times for fleeing and eluding; hence, because the defendant was not tried on the offense of wilful failure to stop, the defendant's contention that double jeopardy considerations prohibited a jury trial on that charge was moot. Harbuck v. State, 280 Ga. 775, 631 S.E.2d 351 (2006).
- Appeals court agreed that because there was only one homicide victim, only one life sentence, and not three, could be imposed, because such improperly subjected the defendant to multiple convictions and punishments for one crime. Turner v. State, 281 Ga. 487, 640 S.E.2d 25 (2007).
- The test is not whether the defendant has already been tried for the same act, but whether the defendant has been put in jeopardy for the same offense. A single act may be an offense against two statutes; and if each statute requires proof of an additional fact that the other does not, an acquittal or conviction under either statute does not exempt the defendant from prosecution and punishment under the other. Ballerini v. Aderholt, 44 F.2d 352 (5th Cir. 1930); Brock v. State, 146 Ga. App. 78, 245 S.E.2d 442 (1978); United States v. Dunbar, 591 F.2d 1190 (5th Cir. 1979); United States v. Cowart, 595 F.2d 1023 (5th Cir. 1979); State v. Burroughs, 244 Ga. 288, 260 S.E.2d 5 (1979); United States v. Caston, 615 F.2d 1111 (5th Cir.), cert. denied, 449 U.S. 831, 101 S. Ct. 99, 66 L. Ed. 2d 36 (1980); Stephens v. Zant, 631 F.2d 397 (5th Cir. 1980), rev'd on other grounds, 462 U.S. 862, 103 S. Ct. 2733, 77 L. Ed. 2d 235 (1983); United States v. Tammaro, 636 F.2d 100 (5th Cir. 1981).
A defendant may properly be prosecuted under the general federal conspiracy statute and a specific conspiracy statute so long as each statute requires proof of an element not required by the other. United States v. Lanier, 920 F.2d 887 (11th Cir.), cert. denied, 502 U.S. 872, 112 S. Ct. 208, 116 L. Ed. 2d 166 (1991).
Lesser or greater included offense is the same offense for double jeopardy purposes. Stephens v. Zant, 631 F.2d 397 (5th Cir. 1980), modified, 648 F.2d 446 (5th Cir. 1981), rev'd on other grounds, 462 U.S. 862, 103 S. Ct. 2733, 77 L. Ed. 2d 235 (1983).
By charging a lesser offense in accordance with O.C.G.A. § 16-1-6, the trial court did not permit the jury to convict defendant in a manner not alleged in the indictment in violation of defendant's due process rights. Rupnik v. State, 273 Ga. App. 34, 614 S.E.2d 153 (2005).
- A person who has been convicted of a crime having several elements included in it may not subsequently be tried for a lesser included offense, that is, an offense consisting solely of one or more of the elements of the crime for which the person has already been convicted. Ballerini v. Aderholt, 44 F.2d 352 (5th Cir. 1930); State v. Burroughs, 246 Ga. 393, 271 S.E.2d 629 (1980).
Defendant's conviction of voluntary manslaughter under O.C.G.A. § 16-5-2 was improper, as the defendant was also convicted of felony murder under O.C.G.A. § 16-5-1(c) for the same transaction, and this would have subjected the defendant to multiple convictions and punishments for one crime, which would have placed the defendant in double jeopardy in violation of Ga. Const. 1983, Art. I, Sec. I, Para. XVIII and U.S. Const., amend. 5. Lawson v. State, 280 Ga. 881, 635 S.E.2d 134 (2006).
Conviction of lesser included offense bars subsequent trial on greater offense. State v. Burroughs, 246 Ga. 393, 271 S.E.2d 629 (1980).
In order for the rule that jeopardy for an offense ends after a jury convicts a defendant of a lesser offense to apply, there must be an unambiguous conviction of the lesser offense, and the trial court must have given the jury full opportunity to return a verdict on the greater charge. Potts v. State, 258 Ga. 430, 369 S.E.2d 746 (1988), cert. denied, 489 U.S. 1068, 109 S. Ct. 1347, 103 L. Ed. 2d 815 (1989).
- If a defendant is tried on more than one count, and the jury returned no verdict on the greater offense, but convicted on a lesser included offense, the defendant may not be retried for the greater offense after the conviction is overturned, because the jury had implicitly acquitted the defendant of that greater offense. Price v. Georgia, 398 U.S. 323, 90 S. Ct. 1757, 26 L. Ed. 2d 300 (1970).
State's re-prosecution of the defendant for felony murder was barred by double jeopardy after the jury found the defendant guilty of the voluntary manslaughter of the same victim because the jury was given a full opportunity to return a verdict on the felony murder charge, which the jury did; although no judgment of conviction or sentence was entered on the jury's verdict of guilt on the felony murder charge, the defendant was placed in jeopardy of conviction of that charge in the first trial and could not, consistent with the Fifth Amendment's double jeopardy clause, be placed at risk of conviction again. Williams v. State, 288 Ga. 7, 700 S.E.2d 564 (2010).
- If there is a conviction of two crimes in a single prosecution, one of which is included in the other, and the defendant obtains a reversal of the major crime for lack of jurisdiction, the remaining conviction of the lesser crime does not bar a retrial on the major crime. In the event the defendant is then convicted on retrial for the major crime, an invalidation of the defendant's conviction of the lesser included offenses for the same conduct would be authorized in appropriate proceedings. Keener v. State, 238 Ga. 7, 230 S.E.2d 846 (1976), cert. denied, 433 U.S. 911, 97 S. Ct. 2980, 53 L. Ed. 2d 1096 (1977).
- No merger of greater and lesser included offenses when there is no conviction for the greater offense. Hill v. State, 207 Ga. App. 65, 426 S.E.2d 915 (1993).
- In determining what is the same offense for the purposes of U.S. Const., amend. 5, the test is whether, if what is set out in the second indictment had been proved under the first, there could have been a conviction; when there could, the second cannot be maintained; when there could not, it can be. Bertsch v. Snook, 36 F.2d 155 (5th Cir. 1929); Ballerini v. Aderholt, 44 F.2d 352 (5th Cir. 1930).
- If the evidence required to convict under the first indictment would not be sufficient to convict under the second indictment, but proof of an additional fact would be necessary to constitute the offense charged in the second, the former conviction or acquittal could not be pleaded in bar to the second indictment. Price v. State, 76 Ga. App. 108, 45 S.E.2d 84 (1947).
- Where counts of an indictment to which the defendant pleads guilty charge the same offense, and the maximum imprisonment authorized for a single conspiracy was imposed on one count, imposition of an additional sentence of imprisonment on the second count is void. Bertsch v. Snook, 36 F.2d 155 (5th Cir. 1929).
Double jeopardy clause is not violated by treating single agreement as two offenses where Congress intends to impose multiple punishment, as where there is an agreement to trade firearms for drugs and defendants are charged under two separate conspiracy statutes, a drug conspiracy under 21 U.S.C. § 846 and a firearm conspiracy under 18 U.S.C. § 371. United States v. Mulherin, 710 F.2d 731 (11th Cir.), cert. denied, 464 U.S. 964, 104 S. Ct. 402, 78 L. Ed. 2d 343 (1983), cert. denied, 465 U.S. 1034, 104 S. Ct. 1305, 79 L. Ed. 2d 703 (1984).
- As felony murder is defined under Georgia law, the underlying felony is a lesser included offense of felony murder and thus the same offense for double jeopardy purposes. Stephens v. Zant, 631 F.2d 397 (5th Cir. 1980), modified, 648 F.2d 446 (5th Cir. 1981), rev'd on other grounds, 462 U.S. 862, 103 S. Ct. 2733, 77 L. Ed. 2d 235 (1983).
- Once the state tried and convicted petitioner for kidnapping, it would be barred from prosecuting him for felony murder only if the underlying felony upon which that prosecution was based were that same kidnapping. Stephens v. Zant, 631 F.2d 397 (5th Cir. 1980), modified, 648 F.2d 446 (5th Cir. 1981), rev'd on other grounds, 462 U.S. 862, 103 S. Ct. 2733, 77 L. Ed. 2d 235 (1983).
- Double jeopardy principles were used to bar prosecution of a defendant in a second proceeding after the defendant was tried on a charge in a former proceeding, but defendant's trial on a charge of felony murder in a case where the trial was bifurcated and defendant was first tried on a malice murder charge did not violate defendant's double jeopardy rights since the delay between the proceedings did not constitute the termination of the prosecution and, thus, trial on the malice murder charge did not involve a former prosecution; rather, the charges were different phases of the same trial, and, thus, the fact that the malice murder charge had already been tried did not bar a trial on the felony murder charge. Jones v. State, 276 Ga. 663, 581 S.E.2d 546 (2003).
- Trial court did not err in allowing the manufacturing methamphetamine offense to proceed to the jury under O.C.G.A. § 16-13-30(b); despite the poor wording of the caption of the count at issue, which stated "trafficking in methamphetamine," because the body of the count clearly charged the defendant with manufacturing methamphetamine, and the defendant failed to show how the defendant was misled by the presentment, nor did it expose the defendant to double jeopardy in violation of U.S. Const., amend. 5 or Ga. Const. 1983, Art. I, Sec. I, Para. XVIII. Gentry v. State, 281 Ga. App. 315, 635 S.E.2d 782 (2006), cert. denied, No. S07C0117, 2007 Ga. LEXIS 78 (Ga. 2007).
Defendant's second prosecution for speeding and DUI was not barred by double jeopardy because the defendant's counsel joined in the state's motion for a mistrial in the first case due to the prosecutor's misstating the evidence in closing; further, the record showed that the prosecutor's error was inadvertent and not in bad faith. Williams v. State, 311 Ga. App. 783, 717 S.E.2d 264 (2011).
Accusation was sufficient because if, after jeopardy had attached, any other proceedings were taken against the defendant arising out of a domestic incident, the defendant could plead a former acquittal or conviction because the accusation set forth specific acts and adequately defined the offenses of battery, family violence battery, and criminal trespass. The state would not be able to charge the defendant with a new offense simply by alleging that the defendant struck the victim or the victim's closet door with an object. State v. Leatherwood, 326 Ga. App. 730, 757 S.E.2d 434 (2014).
Malice murder and kidnapping are not the same offense for double jeopardy purposes under Georgia law, even though they involve the same transaction and considerably overlap each other factually. Stephens v. Zant, 631 F.2d 397 (5th Cir. 1980), modified, 648 F.2d 446 (5th Cir. 1981), rev'd on other grounds, 462 U.S. 862, 103 S. Ct. 2733, 77 L. Ed. 2d 235 (1983).
Malice murder and kidnapping with bodily injury have separate and distinct elements and require proof of different facts. Thus, even if they involve the same transaction and considerably overlap each other factually, they are not the "same offense" under the double jeopardy clause. Potts v. Zant, 575 F. Supp. 374 (N.D. Ga. 1983), aff'd, 734 F.2d 526 (11th Cir. 1984), cert. denied, 475 U.S. 1068, 106 S. Ct. 1386, 89 L. Ed. 2d 610, judgment vacated, 478 U.S. 1017, 106 S. Ct. 3328, 92 L. Ed. 2d 734 (1986) (remanded for further consideration in light of Rose v. Clark, 478 U.S. 570 (1986)), aff'd, 814 F.2d 1512 (11th Cir. 1987), cert. denied, 493 U.S. 876, 110 S. Ct. 214, 107 L. Ed. 2d 166 (1989).
- Defendant's separate convictions for armed robbery and hijacking a motor vehicle did not violate the prohibitions against double jeopardy as O.C.G.A. § 16-5-44.1(d) provided that hijacking a motor vehicle was a separate offense and did not merge and it therefore superseded the state statutory double jeopardy provision; further, the Georgia Constitution did not prohibit additional punishment for a separate offense that the Georgia legislature had deemed to warrant a separate sanction; the defendant failed to show how the hijacking statute violated the federal double jeopardy clause. Mullins v. State, 280 Ga. App. 689, 634 S.E.2d 850 (2006).
Essence of a double jeopardy determination in a conspiracy case is whether there was more than one agreement. United States v. Tammaro, 636 F.2d 100 (5th Cir. 1981).
Factors to be considered in concluding that events charged in two indictments were part of a single agreement: (1) time; (2) persons acting as coconspirators; (3) the statutory offenses charged in the indictments; (4) the overt acts charged by the government or any other description of the offense charged which indicates the nature and scope of the activity which the government sought to punish in each case; and (5) places where the events alleged as part of the conspiracy took place. United States v. Futch, 637 F.2d 386 (5th Cir. 1981).
- The usual tests for determining the existence of a unified conspiracy are whether: the participants shared a continuing, common goal; the operations of the conspiracy followed an unbroken and repetitive pattern; and the cast of coconspirators remained the same. United States v. Futch, 637 F.2d 386 (5th Cir. 1981).
- The question that is central to double jeopardy claims arising in the context of a narcotics conspiracy is whether the particular transactions alleged in the indictment were within a larger unified conspiracy. United States v. Futch, 637 F.2d 386 (5th Cir. 1981); United States v. Henry, 661 F.2d 894 (5th Cir. 1981), cert. denied, 455 U.S. 992, 102 S. Ct. 1619, 71 L. Ed. 2d 853 (1982).
Conspiracy to commit a crime and the crime itself are separate offenses and a defendant may be tried in separate trials for both. United States v. Tallant, 547 F.2d 1291 (5th Cir.), cert. denied, 434 U.S. 889, 98 S. Ct. 262, 54 L. Ed. 2d 174 (1977).
Since whatever evidence is introduced in a trial on a substantive offense, later prosecution for conspiracy based upon the same evidence cannot amount to a double jeopardy violation because the conspiracy and the substantive offense are distinct, where the situation was reversed, the first charges were for conspiracy and the pending charges involved substantive crimes, there was no double jeopardy violation. United States v. Eley, 968 F.2d 1143 (11th Cir. 1992).
Only if the substantive offense and the conspiracy are identical does a conviction for both constitute double jeopardy. United States v. Tallant, 547 F.2d 1291 (5th Cir.), cert. denied, 434 U.S. 889, 98 S. Ct. 262, 54 L. Ed. 2d 174 (1977).
Conviction and punishment for conspiracy as well as aiding and abetting does not violate the double jeopardy clause because the offenses are separate and distinct, even where the evidence adduced serves "double duty" in establishing the elements of both offenses. United States v. Cowart, 595 F.2d 1023 (5th Cir. 1979).
- Prosecuting a defendant on attempt and conspiracy charges does not violate double jeopardy even though both offenses arose out of a single narcotics transaction. There can be no double jeopardy bar, therefore, to punishing a defendant for both crimes. United States v. Cochran, 883 F.2d 1012 (11th Cir. 1989).
- Charging the defendant with conspiracy to sell and distribute cocaine after the defendant had pled guilty to a substantive crime, possession of cocaine, did not constitute double jeopardy because the second prosecution required proof of facts not required on the prior prosecution. Rogers v. State, 201 Ga. App. 426, 411 S.E.2d 289 (1991).
- An individual may not be retried for a simple battery based upon a striking and kicking incident for which the individual was convicted of disorderly conduct. State v. Burroughs, 246 Ga. 393, 271 S.E.2d 629 (1980).
Trial on an indictment for simple battery and criminal damage to property in the second degree constituted double jeopardy where these charges were based on the same facts underlying defendant's plea and conviction for disorderly conduct. Henderson v. State, 206 Ga. App. 642, 426 S.E.2d 264 (1992).
- As a matter of law, the crime of illegal possession of heroin is not included in the crime of illegal sale of heroin for the purposes of double jeopardy and multiple prosecution. Wilson v. Hopper, 234 Ga. 859, 218 S.E.2d 573 (1975).
Possession of a controlled substance is separate and distinct from the conduct required to establish the offense of driving under the influence of intoxicants, although the offenses may arise out of the same conduct, i.e., driving. Rogers v. State, 166 Ga. App. 299, 304 S.E.2d 108 (1983).
- After defendant's acquittal on charge of communicating to a virtuous female by writing obscene and vulgar language and an improper proposal under former Code 1933, § 26-6303 (see O.C.G.A. § 16-11-39.1), the defendant is not placed in double jeopardy by being placed on trial for charge of soliciting another for the purpose of prostitution under former Code 1933, § 26-6201 (see O.C.G.A. § 16-6-12), on grounds that the two cases are based on the same transaction. Price v. State, 76 Ga. App. 108, 45 S.E.2d 84 (1947).
Revocation of probation for offense of escape and criminal prosecution for the same offense is not double jeopardy. Aldridge v. State, 155 Ga. App. 916, 273 S.E.2d 656 (1980).
- Where convictions for both driving under the influence and public drunkenness are not based upon proof of the same facts, the defendant has no viable claim of double jeopardy under the United States Constitution; moreover, the fact that both crimes arose from the same intoxication has no bearing on this issue. Fuller v. State, 169 Ga. App. 468, 313 S.E.2d 745 (1984).
- Where charges of driving under the influence of alcohol (O.C.G.A. § 40-6-391(a)(1)) and driving with an unlawful blood alcohol level (O.C.G.A. § 40-6-391(a)(4)) were based on the same conduct, they merged under the substantive double jeopardy rule, requiring vacating of conviction of latter offense. Hoffman v. State, 208 Ga. App. 574, 430 S.E.2d 886 (1993).
- Proof that the defendant was guilty of driving under the influence (DUI) under O.C.G.A. § 40-6-391 was a required element for convicting the defendant of serious injury by vehicle under O.C.G.A. § 40-6-394, and while proof of serious injury by vehicle also required proof of an additional element, bodily harm, the DUI charge included no element that was not also contained in the crime of serious injury by vehicle; accordingly, the Blockburger test was not met, and the subsequent indictment for serious injury by vehicle violated the double jeopardy clause of the Fifth Amendment. Thus, defendant's plea in bar was a valid exercise of the federal double jeopardy clause. Garrett v. State, 306 Ga. App. 429, 702 S.E.2d 470 (2010).
- No double jeopardy violation occurred when defendant was convicted of and sentenced for both burglary and robbery. Luke v. State, 171 Ga. App. 201, 318 S.E.2d 833 (1984).
- Conviction of a defendant for armed robbery, a lesser included offense of the malice murder for which the defendant was also convicted, subjected the defendant to double jeopardy. Huynh v. King, 95 F.3d 1052 (11th Cir. 1996).
- Defendant's right to be free from double jeopardy was not violated by rape prosecution in second trial after defendant was acquitted in a first trial on a charge of battery, as the facts used to prove the rape charge in the second trial were distinct from the factual allegations cited in support of the battery charge in the first trial, and, thus, the state was not barred by double jeopardy from retrying defendant on the rape charge in the second trial after the trial court declared a mistrial on that charge in the first trial. Dawson v. State, 260 Ga. App. 824, 581 S.E.2d 371 (2003).
Where defendant was charged with five traffic violations and disorderly conduct, a guilty plea having been accepted for the latter, trial court's denial of defendant's plea of former jeopardy to preclude prosecution for the traffic violations was not in error where the offense of disorderly conduct for which the defendant was earlier tried did not arise from the same transaction as the five traffic offenses with which the defendant was also charged, as they were completed at a different time and at different locations; therefore, prosecution for the traffic offenses did not constitute double jeopardy for defendant. Boyette v. State, 172 Ga. App. 683, 324 S.E.2d 540 (1984).
- Defendant's prosecution for a car hijacking was not barred by the double jeopardy clause as the refusal to admit evidence of the car hijacking as similar transaction evidence at defendant's trial for armed robbery was based on the lack of similarity between the car hijacking and the armed robbery incidents, not the lack of evidence of defendant's culpability for the car hijacking. Syas v. State, 273 Ga. App. 161, 614 S.E.2d 803 (2005).
- Where defendant could not have been convicted for aggravated assault and criminal damage to property under prior citations for traffic offenses requiring separate proof of facts, no double jeopardy attached. Cates v. State, 206 Ga. App. 694, 426 S.E.2d 576 (1992).
- Trial court properly sentenced the defendant on five separate counts of attempting to elude a police officer because the evidence supported the jury's conclusion that the defendant willfully led police on a dangerous high speed chase after being given clear signals by five separate police vehicles to stop; it is the act of fleeing from an individual police vehicle or police officer after being given a proper visual or audible signal to stop from that individual police vehicle or officer, and not just the act of fleeing itself, that forms the proper "unit of prosecution" under O.C.G.A. § 40-6-395. Smith v. State, 290 Ga. 768, 723 S.E.2d 915 (2012).
- No double jeopardy violation existed in an indictment charging the defendants with substantive and conspiracy violations of the federal Racketeer Influenced Corrupt Organizations Act (RICO) based on the use of the same proof as prior federal conspiracy and substantive drug convictions. United States v. Boldin, 772 F.2d 719 (11th Cir. 1985), modified, 779 F.2d 618 (11th Cir.), cert. denied, 475 U.S. 1098, 106 S. Ct. 1498, 89 L. Ed. 2d 899, cert. denied, 475 U.S. 1048, 106 S. Ct. 1269, 89 L. Ed. 2d 577, cert. denied, 475 U.S. 1110, 106 S. Ct. 1520, 89 L. Ed. 2d 917 (1986).
- The prosecution of the defendant in Fulton County for aggravated stalking was not barred by defendant's previous conviction in Cobb County for aggravated stalking since, although the offenses pertained to stalking of the same victim, each prosecution pertained to events that occurred on different days and in different places. Daker v. State, 248 Ga. App. 657, 548 S.E.2d 354 (2001), cert. denied, 535 U.S. 1085, 122 S. Ct. 1977, 152 L. Ed. 2d 1035 (2002).
- Cumulative punishment for armed robbery and carrying and using a firearm in the commission of a felony does not subject a defendant to double jeopardy. Jackson v. United States, 976 F.2d 679 (11th Cir. 1992).
Defendant's conviction of offense of possession of a firearm by a convicted felon was not precluded by collateral estoppel where he was acquitted of two other charges (aggravated assault and possession of a firearm during commission of a crime against a person) arising out of the same incident; the jury could have concluded that the defendant had the gun but did not assault or attempt to rob the victim with it. Clark v. State, 194 Ga. App. 280, 390 S.E.2d 425 (1990).
- Financial transaction card theft, O.C.G.A. § 16-9-31, is not a lesser included offense of financial transaction card fraud, O.C.G.A. § 16-9-33, thus, the defendant's prior conviction for the former offense did not preclude prosecution for the latter. Sword v. State, 232 Ga. App. 497, 502 S.E.2d 334 (1998).
- In order to sustain a plea of former jeopardy, it is always incumbent upon the defendant to plead and prove that the transaction charged in the second indictment is the same as a matter of fact as that charged in the first indictment under which the defendant was put in jeopardy. Waters v. State, 112 Ga. App. 201, 144 S.E.2d 477 (1965).
- In addition to pleading and proving that the transactions are the same as a matter of fact, it is also necessary in order to sustain a double jeopardy plea to plead and prove: (a) that the transaction charged in the second indictment is an offense that is identical in law with that charged in the first indictment, or else that under the actual terms of the first indictment proof of the second offense was made necessary as an essential ingredient of the offense as first charged; (b) that the transaction charged in the second indictment is an offense that represents either a major or minor grade of the same offense, of which the defendant might be convicted under an indictment for the major offense; or (c) if the transactions are the same as a matter of fact, even though the offenses be not identical or in effect identical as a matter of law, so as to come within the scope of the preceding items (a) or (b), the defendant may nevertheless, under the principles of res judicata, which may be included in a plea under the broader doctrine of former jeopardy, show that the defendant's acquittal on the first charge was necessarily controlled by the determination of some particular issue or issues of fact which would preclude the defendant's conviction of the second charge. Waters v. State, 112 Ga. App. 201, 144 S.E.2d 477 (1965).
If defendant establishes a prima facie claim the burden shifts to the government to prove by a preponderance of the evidence that the indictments involved in fact charge separate offenses. United States v. Futch, 637 F.2d 386 (5th Cir. 1981).
- The bar to multiple convictions usually arises where several crimes arising out of one criminal transaction are tried at the same time. In such cases the bar does not operate until after the verdicts. Under Georgia law it bars the conviction and therefore the punishment of all crimes which are as a matter of law or a matter of fact included in a major crime for which the defendant has been convicted. Keener v. State, 238 Ga. 7, 230 S.E.2d 846 (1976), cert. denied, 433 U.S. 911, 97 S. Ct. 2980, 53 L. Ed. 2d 1096 (1977).
- Although a defendant was acquitted of charges relating to the beating death and kidnapping of a robbery victim in a first trial, the defendant was convicted of armed robbery and assault of the victim. On the defendant's retrial, granted due to the state's failure to prove venue in the first trial, the state was not barred from re-prosecuting the defendant for armed robbery and assault. Patmon v. State, 303 Ga. App. 151, 693 S.E.2d 120 (2010).
- The prohibition against putting any person twice in jeopardy of life or limb for the same offense applies only to twice subjecting an individual to criminal processes for the same offense against the same sovereign. There is no bar to the sovereign's imposing both civil and criminal penalties for the same act. Alexander v. State, 129 Ga. App. 395, 199 S.E.2d 918 (1973); Johnson v. State, 142 Ga. App. 124, 235 S.E.2d 550 (1977), aff'd, 240 Ga. 526, 242 S.E.2d 53, cert. denied, 439 U.S. 881, 99 S. Ct. 221, 58 L. Ed. 2d 194 (1978).
- Revocation of a business license to operate a health spa following the owner's plea of nolo contendere to a sexual offense was not double jeopardy. Moser v. Richmond County Bd. of Comm'rs, 263 Ga. 63, 428 S.E.2d 71 (1993).
Suspension of a driver's license at an administrative hearing was not punishment, nor was the hearing a prosecution for the purposes of double jeopardy, thus, a subsequent criminal prosecution for driving under the influence was not barred. Nolen v. State, 218 Ga. App. 819, 463 S.E.2d 504 (1995), cert. denied, 518 U.S. 1018, 116 S. Ct. 2550, 135 L. Ed. 2d 1070 (1996); McDaniel v. State, 224 Ga. App. 5, 479 S.E.2d 779 (1996).
Payment of the fee required for reinstatement of a driver's license after it was suspended following an arrest for driving under the influence was not punishment and did not bar a subsequent prosecution for driving under the influence. Thompson v. State, 229 Ga. App. 526, 494 S.E.2d 306 (1997); Morgan v. State, 229 Ga. App. 861, 495 S.E.2d 138 (1998).
- Conducting a hearing to modify the bond conditions of a third-time DUI offender and placing limitations upon the offender's driving privileges, predicated upon the necessity to protect the welfare and safety of the citizens of Georgia from a recidivist offender, was not punishment, nor was the hearing prosecution, for the purposes of double jeopardy. Strickland v. State, 300 Ga. App. 898, 686 S.E.2d 486 (2009); Edvalson v. State, 339 Ga. App. 348, 793 S.E.2d 545 (2016).
Ten-day suspension from school following defendant's arrest and indictment for armed robbery did not rise to the level of "punishment" for double jeopardy purposes. Clark v. State, 220 Ga. App. 251, 469 S.E.2d 250 (1996).
A civil forfeiture proceeding in a drug case was not a criminal prosecution for purposes of double jeopardy. Murphy v. State, 219 Ga. App. 474, 465 S.E.2d 497 (1995), aff'd, 267 Ga. 120, 475 S.E.2d 907 (1996).
A civil federal forfeiture action was neither punishment nor criminal for purposes of the double jeopardy clause. Battista v. State, 223 Ga. App. 369, 477 S.E.2d 665 (1996).
- Imposition of criminal punishment and administrative punishment for the same act does not constitute a violation of the double jeopardy prohibition. Horne v. Hopper, 238 Ga. 140, 231 S.E.2d 735 (1977).
A prisoner's convictions for certain criminal acts and prison administrative punishment for the same acts do not constitute double jeopardy. Minton v. State, 167 Ga. App. 114, 305 S.E.2d 812 (1983).
The constitutional prohibition against double jeopardy is not violated when a prisoner is subjected to executive department punishment for an act committed while a prison inmate and is then prosecuted and convicted in a court of law for having committed a crime even though the crime and the act for which administrative punishment is assessed are one and the same. Flowers v. State, 166 Ga. App. 740, 306 S.E.2d 16 (1983).
- Nonsummary criminal contempt proceedings can trigger the Fifth Amendment's double jeopardy bar to subsequent prosecution. Tanks v. State, 292 Ga. App. 177, 663 S.E.2d 812 (2008).
- Where defendant's pretrial detentions were not to punish defendant for two murders or the result of prosecutorial misconduct, the United States Constitution's Fifth Amendment double jeopardy clause did not bar the state's prosecution for the murders and related crimes. Agee v. State, 276 Ga. 536, 579 S.E.2d 730 (2003).
Termination of a police officer for threatening and attempting to choke the victim did bar prosecution of the officer for the same offenses. Pennyman v. State, 222 Ga. App. 779, 476 S.E.2d 71 (1996).
- Where the Northern District Court considered the quantities of drugs which were the object of the prosecution in the Southern District in determining the Northern District sentence for a conspiracy conviction, there was no double jeopardy violation for criminal conduct relating to those quantities of drugs because Congress may punish separately each step leading to the consummation of a transaction. United States v. Eley, 968 F.2d 1143 (11th Cir. 1992).
- Double jeopardy did not bar the state from prosecuting defendant for murder even though the federal district court had considered the murder in its sentencing of defendant for bank robbery. Nance v. State, 266 Ga. 816, 471 S.E.2d 216 (1996), cert. denied, 519 U.S. 1043, 117 S. Ct. 615, 136 L. Ed. 2d 539 (1996).
Proceeding to revoke a probated sentence is not a criminal proceeding. Johnson v. State, 142 Ga. App. 124, 235 S.E.2d 550 (1977), aff'd, 240 Ga. 526, 242 S.E.2d 53, cert. denied, 439 U.S. 881, 99 S. Ct. 221, 58 L. Ed. 2d 194 (1978).
Discipline of a prisoner by prison authorities for violations of prison regulations and prosecution by civil authorities for the same acts does not violate the double jeopardy clause. Gilchrist v. United States, 427 F.2d 1132 (5th Cir. 1970).
When one is criminally convicted and sentenced for escape and is also subjected to administrative in-prison punishments for the same escape, constitutional double jeopardy protection is not violated. Middlebrook v. Allen, 234 Ga. 481, 216 S.E.2d 331 (1975).
- When a defendant was indicted for aggravated stalking under O.C.G.A. § 16-5-91(a) in violation of a protective order issued under O.C.G.A. § 19-13-4, a criminal contempt proceeding based on the same incident could trigger the double jeopardy clause of the Fifth Amendment. The protective order violation contained no elements not contained in the criminal offense; furthermore, the protective order specifically enjoined the defendant from surveilling the subject of the order for the purpose of harassing and intimidating the subject, as also proscribed by § 16-5-91(a). Tanks v. State, 292 Ga. App. 177, 663 S.E.2d 812 (2008).
- Defendant's right to a fair trial is not paramount to the state's right to a fair trial; the trial court has the duty to ensure a fair trial to all parties in a case and has as much authority to grant a mistrial where injustice is caused to the state as where injustice is cause to the defendant. Sinkfield v. State, 217 Ga. App. 589, 458 S.E.2d 665 (1995).
- Once the jury has been impaneled, the court may not discharge the jury from giving a verdict unless there is a case of manifest necessity for such an act, or the ends of public justice would otherwise be defeated. Haynes v. State, 245 Ga. 817, 268 S.E.2d 325 (1980).
- The requisite intent to provoke a mistrial, entitling the defendant to a dismissal on double jeopardy grounds, was absent where, in violating a court order to refrain from using the term "organized crime," the prosecutor referred to the government's witnesses only and there was no direct reference to the defendant, and where the defendant failed to object to the violation at the time it was made when the infraction could have been cured with proper instructions. United States v. Dante, 739 F.2d 547 (11th Cir.), cert. denied, 469 U.S. 1036, 105 S. Ct. 512, 83 L. Ed. 2d 402 (1984).
- Reprosecution is permissible where, before declaring a mistrial, the court justifiably concludes that it is impossible for the jury, in considering the case, to act with the independence and freedom requisite to a fair trial of the issues. United States v. Starling, 571 F.2d 934 (5th Cir. 1978).
Strictest scrutiny is appropriate when the basis for a mistrial is the unavailability of critical prosecution evidence, or when there is reason to believe that the prosecutor is using the superior resources of the state to harass or achieve a tactical advantage over the accused. Cobb v. State, 246 Ga. 565, 272 S.E.2d 297 (1980).
- When a criminal defendant obtains a termination of the trial in the defendant's favor before any determination of factual guilt or innocence, a new trial is not barred by the double jeopardy clause. State v. Williams, 246 Ga. 788, 272 S.E.2d 725 (1980).
As a general rule, the genuine inability of a jury to agree on a verdict provides manifest necessity for discharge and a mistrial due to a deadlocked jury does not bar reprosecution. United States v. Wright, 622 F.2d 792 (5th Cir.), cert. denied, 449 U.S. 961, 101 S. Ct. 376, 66 L. Ed. 2d 229 (1980).
When a deadlocked jury was dismissed, the effect of the court's action was a mistrial, and a subsequent declaration of mistrial based on improper closing argument was a nullity; thus, the state was not barred from a retrial of defendant. State v. Telenko, 225 Ga. App. 724, 484 S.E.2d 725 (1997).
Failure of a jury to agree on a verdict of either acquittal or conviction does not bar retrial. Cameron v. Caldwell, 232 Ga. 611, 208 S.E.2d 441 (1974); Hooks v. State, 138 Ga. App. 539, 226 S.E.2d 765 (1976); Kelly v. State, 145 Ga. App. 780, 245 S.E.2d 20 (1978); United States v. Starling, 571 F.2d 934 (5th Cir. 1978); Cherry v. Director, State Bd. of Cors., 613 F.2d 1262 (5th Cir. 1980), aff'd in part, rev'd in part on other grounds, 635 F.2d 414 (5th Cir.), cert. denied, 454 U.S. 840, 102 S. Ct. 150, 70 L. Ed. 2d 124 (1981).
- If the grant of a mistrial results from the inability of the jury to agree on a verdict that makes the discharge of the jury necessary and the completion of the trial impossible, a second trial for the same offense or for an offense growing out of the same acts is not barred and does not violate the guaranty against double jeopardy. Van Scoik v. State, 139 Ga. App. 293, 228 S.E.2d 229 (1976).
A second prosecution is not prohibited because of disqualification of a juror, mere irregularity of procedure, or tactical necessity in wartime. United States v. Starling, 571 F.2d 934 (5th Cir. 1978).
Third trial, held after two mistrials caused by jury disagreement, does not constitute double jeopardy. Orvis v. State, 237 Ga. 6, 226 S.E.2d 570 (1976).
- Because, after deliberating for only a few minutes, the jury sent a note to the trial judge asking if it could declare a mistrial due to lack of evidence, but because the foreman stated a belief that the jury would eventually reach a decision, there was no manifest necessity for declaring a mistrial, and retrial was barred by the double jeopardy clause. Cobb v. State, 246 Ga. 565, 272 S.E.2d 297 (1980).
Trial court can retry a defendant following mistrial without violating double jeopardy protections. Bell v. State, 249 Ga. 644, 292 S.E.2d 402 (1982).
Trial court properly denied the defendant's plea in bar based on double jeopardy under U.S. Const., amend. 5 and Ga. Const. 1983, Art. I, Sec. I, Para. XVIII, seeking to prevent a retrial of criminal charges against defendant after the motion for a mistrial under O.C.G.A. § 16-1-8(e)(1) was granted in the first trial upon the jury's advisement to the trial court judge that they were hopelessly deadlocked due to the refusal by two jurors to consider the direct evidence; the mistrial was properly declared and there was no improper conduct shown by the trial court or the state but rather, the defendant's counsel admitted that defendant hoped that another jury would be more sympathetic to the defendant upon a retrial, as the first jury was deadlocked 10-2 in favor of conviction. Jackson v. State, 282 Ga. App. 476, 638 S.E.2d 865 (2006).
As the trial court did not abuse the court's discretion in declaring a mistrial sua sponte on the basis that evidence inadvertently taken to the jury room which contained the defendant's exculpatory statement had irreparably prejudiced the state's right to a fair trial, and that curative instructions would be insufficient, the defendant's retrial was not barred by double jeopardy. Varner v. State, 285 Ga. 334, 676 S.E.2d 209 (2009).
After the trial court excused a juror who had been left a telephone message stating that the defendant was a good person, the juror discussed the evidence with the other jurors and made negative comments in an apparent effort to discredit the prosecution. As the trial court concluded that the excused juror may have had a bias that affected the other jurors, it properly declared a mistrial; therefore, the defendant's retrial did not violate the double jeopardy ban. Brown v. State, 285 Ga. 324, 676 S.E.2d 221 (2009).
Retrial of a criminal defendant after a mistrial caused by the inability of the jury to reach a verdict does not constitute double jeopardy where there is manifest necessity for declaring the mistrial. Glass v. State, 250 Ga. 736, 300 S.E.2d 812 (1983); Jackson v. State, 257 Ga. 484, 361 S.E.2d 156 (1987).
A retrial after a mistrial had been declared because of the jury's inability to reach an unanimous decision, it being hopelessly deadlocked after deliberating for two days (more time than the actual trial), sending four notes to the court explaining its situation, and being recharged twice, did not deprive the defendant of the defendant's right to be protected against double jeopardy. Walker v. Weldon, 744 F.2d 775 (11th Cir. 1984).
A trial terminated as a result of the jury's inability to reach a unanimous verdict. It is well known that retrial under these circumstances is not barred by the double jeopardy clause. Williams v. State, 258 Ga. 305, 369 S.E.2d 232, cert. denied, 488 U.S. 891, 109 S. Ct. 225, 102 L. Ed. 2d 215 (1988).
There was no double jeopardy violation as the trial court's decision to grant a mistrial was authorized, even if the mistrial was not strictly necessary, because under the totality of the attendant circumstances, reasonable judges could differ as to the type of disposition required to protect the fair trial rights of the parties after the case went longer than expected, requiring either mistrial or three-week continuance, which upset many jurors, who would likely have blamed one of the parties. Laguerre v. State, 301 Ga. 122, 799 S.E.2d 736 (2017).
- Where the state seeks to prosecute a defendant for two offenses in a single prosecution, one of which is included in the other, and the defendant receives a mistrial on the greater offense, the remaining conviction of the lesser offense does not bar retrial of the greater offense. Taylor v. State, 238 Ga. App. 753, 520 S.E.2d 267 (1999).
Where a jury is hopelessly deadlocked, this constitutes manifest necessity for declaring a mistrial. Glass v. State, 250 Ga. 736, 300 S.E.2d 812 (1983); Hurston v. State, 206 Ga. App. 570, 426 S.E.2d 196 (1992).
- The double jeopardy proscription of the federal and state Constitutions generally does not prevent reprosecution of a defendant where a mistrial occurs on the motion of, or with the consent of, the defendant. Studyvent v. State, 153 Ga. App. 161, 264 S.E.2d 695 (1980).
- Defendant was not prosecuted twice for the same offense where evidence introduced at habeas hearing did not contradict the court's recital that defendant consented to mistrial for lack of formal arraignment, and in fact defendant did not object to the mistrial, and either expressly or tacitly joined in codefendant's motion for mistrial. McCormick v. Gearinger, 253 Ga. 531, 322 S.E.2d 716 (1984).
Where, after a jury was impaneled, defendant moved for severance and a mistrial, and the trial court granted the motion for severance and elected to go forward with the trial of the codefendant, but, instead of granting a mistrial, continued defendant's case, the grant of the continuance was equivalent to the grant of a mistrial, and defendant's plea of double jeopardy was properly rejected since defendant had sought and consented to the severance. Stone v. State, 218 Ga. App. 350, 461 S.E.2d 548 (1995).
Defendant did not carry defendant's burden of showing that the state goaded defendant into moving for a mistrial when the state failed to provide the defense with one of two statements that the victim provided to police regarding the charges brought against defendant for child molestation and statutory rape, and, thus, the trial court did not err in denying defendant's plea of former jeopardy under either the state or federal constitution after the trial court granted defendant's motion for a mistrial. Beach v. State, 260 Ga. App. 399, 579 S.E.2d 808 (2003).
- Where the first trial ended with the grant of defendant's motion for mistrial and the order declaring the mistrial was not reduced to writing and entered on the minutes of the court until after the second trial, and where the court's written order merely perfected the record in this regard and the delay in no way affected defendant's rights, no double jeopardy defense is established. Swafford v. State, 161 Ga. App. 139, 291 S.E.2d 3 (1982).
- Because the prosecution's failure to present to the jury sufficient evidence to support a conviction resulted from an erroneous ruling of the trial court, which ruling was invoked by the defendant, the defendant waived the right to obtain a judgment of acquittal due to evidentiary insufficiency. Consequently, a new trial was not barred by the double jeopardy clause. Hunter v. State, 257 Ga. 571, 361 S.E.2d 787 (1987).
Prosecutor allowed inadmissible matters into evidence through negligence, and did not intend to "goad" defendant into seeking a mistrial; thus, defendant's retrial on the same charges after a mistrial was declared was not barred by double jeopardy. Collis v. State, 252 Ga. App. 659, 556 S.E.2d 221 (2001).
Prosecutorial overreaching is gross negligence or intentional misconduct, causing aggravated circumstances to develop which seriously prejudice a defendant causing him to reasonably conclude that a continuation of the tainted proceeding would result in a conviction. United States v. Wright, 622 F.2d 792 (5th Cir.), cert. denied, 449 U.S. 961, 101 S. Ct. 376, 66 L. Ed. 2d 229 (1980).
- Reprosecution is barred by the double jeopardy clause when prosecutorial overreaching forces a defendant to the choice of giving up the substantial right that the defendant has to the trial before the present jury, or moving for a mistrial and giving the government a second chance before another jury with any additional advantage accrued by matter learned in the first trial. Studyvent v. State, 153 Ga. App. 161, 264 S.E.2d 695 (1980).
- "Prosecutorial overreaching" occurs and bars retrials where bad faith conduct by judge or prosecutor threatens the harassment of an accused by successive prosecutions or declaration of a mistrial so as to afford the prosecution a more favorable opportunity to convict the defendant. Studyvent v. State, 153 Ga. App. 161, 264 S.E.2d 695 (1980).
To find prosecutorial overreaching, the government must have, through gross negligence or intentional misconduct, caused aggravated circumstances to develop which seriously prejudiced a defendant causing the defendant to reasonably conclude that a continuation of the tainted proceeding would result in a conviction. United States v. Bizzard, 493 F. Supp. 1084 (S.D. Ga. 1980), aff'd, 674 F.2d 1382 (11th Cir.), cert. denied, 459 U.S. 973, 103 S. Ct. 305, 74 L. Ed. 2d 286 (1982).
Where the trial court and the district attorney are totally at fault in the contempt finding which resulted in a mistrial it is unfair to allow the state to take advantage of such an abuse by again putting defendant in jeopardy. Chatham v. State, 247 Ga. 95, 274 S.E.2d 473 (1981).
- In determining if a retrial is barred by double jeopardy after a mistrial is granted because of prosecutorial or judicial misconduct, the issue is whether there has been a judicial or prosecutorial intent to harass the defendant and deprive the defendant of a fair decision by the jury before whom the defendant is being tried. Benford v. State, 164 Ga. App. 733, 298 S.E.2d 39 (1982).
In the context of a granted motion for mistrial, governmental misconduct will support a plea in bar based on double jeopardy if the prosecutor or trial judge intended to goad the defendant into moving for a mistrial. In the context of a reversal or grant of a motion for new trial, on the other hand, double jeopardy may bar a retrial where the prosecutor intended to prevent an acquittal that the prosecutor, or the trial judge accused of misconduct, believed at the time was likely to occur in the absence of the judge's misconduct. Paul v. State, 266 Ga. App. 126, 596 S.E.2d 670 (2004).
Prosecutorial misconduct will bar retrial pursuant to the double jeopardy clause only if there is an intent on the part of the prosecutor to subvert the protections afforded by the double jeopardy clause. Fugitt v. Lemacks, 833 F.2d 251 (11th Cir. 1987).
Trial court did not err in granting a plea of double jeopardy after a motion for mistrial had been granted, where, in granting the plea, the court orally ruled that the prosecutor had "a deliberate intent to goad [defense counsel] into a mistrial, . . . and that it was prosecutorial misconduct." Beck v. State, 261 Ga. 826, 412 S.E.2d 530 (1992).
The applicable standard is the intent of the prosecutor in the misconduct, and such intent is a fact question for the court to resolve. Reed v. State, 222 Ga. App. 376, 474 S.E.2d 264 (1996).
- Because all but one of the incidents of alleged prosecutorial misconduct occurred either before or after trial, because the one trial incident did not result in a mistrial, and because the evidence did not show that any alleged incident of harassment was intended to subvert the protections afforded by the double jeopardy clause, the defendant's claim that a retrial was barred had no merit. Fugitt v. State, 253 Ga. 311, 319 S.E.2d 829 (1984), cert. denied, 479 U.S. 1070, 107 S. Ct. 963, 93 L. Ed. 2d 1011 (1987).
Prosecutor's failure to follow the instruction of the trial court to avoid questions concerning a witness' credibility did not bar retrial, where the prosecutor's mistakes were made in good faith and there was no intention to provoke mistrial. State v. Oliver, 188 Ga. App. 47, 372 S.E.2d 256 (1988).
Prosecutorial misconduct amounting to harassment or overreaching, even if sufficient to justify a grant of mistrial, is nevertheless insufficient to bar retrial absent intent on the part of the prosecutor to subvert the protections afforded by the double jeopardy clause. State v. Oliver, 188 Ga. App. 47, 372 S.E.2d 256 (1988).
- District attorney's improper quoting of prior court cases was not intended to "goad" defendant into moving for a mistrial and therefore did not bar the state from retrying the case after it had been remanded to the trial court for retrial on sentencing. Hardy v. State, 258 Ga. 523, 371 S.E.2d 849 (1988), cert. denied, 489 U.S. 1040, 109 S. Ct. 1174, 103 L. Ed. 2d 237 (1989).
Where a mistrial was granted at the behest of the defendant, a retrial was not barred; the state had not intended to goad the defendant into moving for a mistrial by inadvertent testimony of its private investigator. Mobley v. State, 262 Ga. 808, 426 S.E.2d 150 (1993), cert. denied, 510 U.S. 870, 114 S. Ct. 198, 126 L. Ed. 2d 156 (1993); Weems v. State, 269 Ga. 577, 501 S.E.2d 806 (1998).
Repeated misconduct by defense counsel, resulting in the jury's exposure to extensive assertions that were irrelevant, immaterial, highly prejudicial, and wholly lacking in evidentiary support, made it impossible for an impartial verdict to be reached; therefore, the trial court did not abuse its discretion in declaring a mistrial based on manifest necessity, and retrial of defendant was not barred. Jackson v. State, 226 Ga. App. 256, 485 S.E.2d 832 (1997).
- Trial court did not abuse the court's discretion in declaring a mistrial in the interests of justice, and in turn the defendant's plea in bar based on alleged double jeopardy, after co-counsel's niece committed suicide causing co-counsel to suffer severe emotional distress, rendering the co-counsel unable to effectively serve as co-counsel. Carman v. State, 304 Ga. 21, 815 S.E.2d 860 (2018).
- A mistrial was declared when defense counsel asked the defendant whether, in the context of the investigation of the present charges, the defendant had "ever taken a polygraph examination" and the defendant responded, "No, not for the State of Georgia." In violation of the rules of evidence and contrary to the true state of facts, the question and answer intimated that, although the state had not undertaken to conduct its own test, there did exist a private polygraph test, the results of which were exculpatory. Therefore, the trial court did not abuse its sound discretion by granting the state's motion for a mistrial and in denying the defendant's plea of former jeopardy. Phelps v. State, 187 Ga. App. 236, 369 S.E.2d 506 (1988).
In a trial of multiple counts where defense sought to impeach a complaining witness with character evidence of a specific act, a mistrial was proper only for the counts prejudiced by such improper evidence. Venson v. Georgia, 74 F.3d 1140 (11th Cir. 1996).
In a prosecution for malice murder, the trial court did not abuse its discretion in declaring a mistrial when defense counsel injected the prejudicial issue of the victim's violent acts without having first made a prima facie showing of justification, and the state could try defendant again. Laster v. State, 268 Ga. 172, 486 S.E.2d 153 (1997).
- In a prosecution for speeding and driving under the influence, the defendant did not engage in an intentional evidentiary infraction or knowingly violate any instruction of the trial court not to divulge an alcosensor reading in the defendant's testimony sufficient to establish manifest necessity for a mistrial and avoid double jeopardy on retrial. Dotson v. State, 213 Ga. App. 7, 443 S.E.2d 650 (1994).
Error on part of prosecution in failing to produce document cannot be classified as prosecutorial misconduct barring retrial, unless the prosecutor's action was intended to subvert the protections afforded by the double jeopardy clause. Williams v. State, 258 Ga. 305, 369 S.E.2d 232, cert. denied, 488 U.S. 891, 109 S. Ct. 225, 102 L. Ed. 2d 215 (1988).
- In a rape prosecution, it was proper for the trial judge to declare a mistrial, on the judge's own motion following the cross-examination of the alleged victim, which culminated in a question by defense counsel concerning the past sexual behavior of the witness, a violation of the shield law (O.C.G.A. § 24-2-3) that was "highly improper" and prejudicial. The declaration of mistrial did not bar a second trial of the defendant for the alleged offense. Abdi v. Georgia, 744 F.2d 1500 (11th Cir. 1984), cert. denied, 471 U.S. 1006, 105 S. Ct. 1871, 85 L. Ed. 2d 164 (1985).
Defendant's introduction of evidence that was prohibited by the rape shield statute gave the court grounds to find manifest necessity for a mistrial; therefore, state and federal double jeopardy provisions did not bar reprosecution. Banks v. State, 230 Ga. App. 258, 495 S.E.2d 877 (1998).
- Trial court erred in denying a rape defendant's plea of double jeopardy after a mistrial had been granted on the mistaken ground that the defense line of questioning of the victim had violated the Rape Shield Law. George v. State, 257 Ga. 176, 356 S.E.2d 882 (1987).
- Where circumstances develop not attributable to prosecutorial or judicial overreaching, a motion by the defendant for mistrial is ordinarily assumed to remove any barrier to reprosecution, even if the defendant's motion is necessitated by prosecutorial or judicial error. United States v. Romano, 482 F.2d 1183 (5th Cir. 1973), cert. denied, 414 U.S. 1129, 94 S. Ct. 866, 38 L. Ed. 2d 753 (1974); Studyvent v. State, 153 Ga. App. 161, 264 S.E.2d 695 (1980); Haynes v. State, 245 Ga. 817, 268 S.E.2d 325 (1980); Cherry v. Director, State Bd. of Cors., 635 F.2d 414 (5th Cir.), cert. denied, 454 U.S. 840, 102 S. Ct. 150, 70 L. Ed. 2d 124 (1981).
- Where a mistrial is granted at the behest of the defendant, a retrial is not barred by principles of double jeopardy unless the governmental conduct in question (from whomever derived) is intended to "goad" the defendant into moving for a mistrial. Ellerbee v. State, 215 Ga. App. 312, 450 S.E.2d 443 (1994).
Where a mistrial is granted at defendant's request, reprosecution is barred only if the mistrial resulted from grossly negligent or intentional misconduct by judge or prosecutor, conduct which was undertaken to harass the accused by successive prosecution or to gain the prosecution a better opportunity at conviction. United States v. Kennedy, 548 F.2d 608 (5th Cir.), cert. denied, 434 U.S. 865, 98 S. Ct. 199, 54 L. Ed. 2d 140 (1977); United States v. Luttrell, 609 F.2d 1190 (5th Cir. 1980); Chatham v. State, 247 Ga. 95, 274 S.E.2d 473 (1981).
Mere negligence on the part of the government is not sufficient to preclude a second trial. United States v. Luttrell, 609 F.2d 1190 (5th Cir. 1980).
Double jeopardy clause does protect a defendant against governmental actions intended to provoke mistrial requests and thereby to subject defendants to the substantial burdens imposed by multiple prosecutions. It bars retrials where bad faith conduct by judge or prosecutor threatens the harassment of an accused by successive prosecutions or declaration of a mistrial so as to afford the prosecution a more favorable opportunity to convict the defendant. United States v. Wright, 622 F.2d 792 (5th Cir.), cert. denied, 449 U.S. 961, 101 S. Ct. 376, 66 L. Ed. 2d 229 (1980); United States v. Bizzard, 493 F. Supp. 1084 (S.D. Ga. 1980), aff'd, 674 F.2d 1382 (11th Cir.), cert. denied, 459 U.S. 973, 103 S. Ct. 305, 74 L. Ed. 2d 286 (1982).
- If a defendant will not agree to a continuance of some reasonable and finite length, and a mistrial is declared, the defendant has essentially forced the mistrial, and the defendant's actions should be declared akin to a motion for a mistrial. Accordingly, further proceedings against the defendant are not barred by the double jeopardy clause. Haynes v. State, 245 Ga. 817, 268 S.E.2d 325 (1980).
- The protections offered by the double jeopardy ban include a stringent limitation on the government's right to reprosecute after a mistrial is declared without the consent of the accused. United States v. Starling, 571 F.2d 934 (5th Cir. 1978).
- When it appears that a free and fair trial cannot be had, the trial ought to be stopped, even over objection of the accused, and the Constitution will not prevent another and better trial. Sanford v. Robbins, 115 F.2d 435 (5th Cir. 1940), cert. denied, 312 U.S. 697, 61 S. Ct. 737, 85 L. Ed. 1132 (1941).
Trial court's finding of manifest necessity requiring a mistrial was proper, and double jeopardy did not bar a retrial, where, during a break in deliberations, a juror made a comment in the presence of other jurors about making money from defendant's family. Perez v. State, 266 Ga. App. 82, 596 S.E.2d 191, cert. denied, 543 U.S. 957, 125 S. Ct. 410, 160 L. Ed. 2d 319 (2004).
- In a bench trial, the judge's inability to disregard evidence the judge ruled inadmissible constituted a manifest necessity for a mistrial and the defendant's double jeopardy rights would not be violated by a retrial to a jury. Bailey v. State, 219 Ga. App. 258, 465 S.E.2d 284 (1995).
If, for reasons deemed compelling by the trial judge, the ends of substantial justice cannot be attained without discontinuing the trial, a mistrial may be declared without the defendant's consent and even over the defendant's objections, and the defendant may be retried consistently with U.S. Const., amend. 5. United States v. Wayman, 510 F.2d 1020 (5th Cir.), cert. denied, 423 U.S. 846, 96 S. Ct. 84, 46 L. Ed. 2d 67 (1975).
- The jeopardy provision does not prohibit a second trial on the same charge where the defendant has been successful in the motion for a new trial in having the conviction set aside for want of sufficient evidence. Staggers v. State, 120 Ga. App. 875, 172 S.E.2d 462 (1969).
- If the prosecutor begins the case without sufficient evidence to convict and the court grants a mistrial over defendant's objection, the defendant's plea of former jeopardy should be sustained should the state attempt to call the case again. Haynes v. State, 245 Ga. 817, 268 S.E.2d 325 (1980).
- Where defendant objects to declaration of mistrial, but court order states that the mistrial was granted upon agreement of counsel for the defendant and counsel for the state, defendant's remedy is to file a motion to correct it, before the judge who issued it, at the same term of court, and while the matter is still fresh in the judge's mind. Minter v. State, 122 Ga. App. 695, 178 S.E.2d 335 (1970).
- While not determinative, the failure of a trial judge to consider adequately less severe alternatives to a mistrial shows an inadequate concern for the severe consequences of ordering a mistrial without the accused's consent. Cherry v. Director, State Bd. of Cors., 613 F.2d 1262 (5th Cir. 1980), aff'd in part, rev'd in part on other grounds, 635 F.2d 414 (5th Cir.), cert. denied, 454 U.S. 840, 102 S. Ct. 150, 70 L. Ed. 2d 124 (1981).
Trial court abused the court's discretion in declaring a mistrial and abridging defendant's constitutional right to be tried by the originally impaneled jury without first considering less drastic alternatives when the assigned courtroom was unavailable at the appointed time. The procedure the court used was flawed, not the result. A trial court is not categorically required to grant a continuance under similar circumstances; merely the court should consider a continuance as an alternative to declaring a mistrial. Since the trial court told defense counsel that if the defendant did not plead guilty, the court would declare a mistrial, the court took little or no heed to McGee's constitutional rights thereby constituting an abuse of discretion. McGee v. State, 287 Ga. App. 839, 652 S.E.2d 822 (2007).
- Retrial after a mistrial was not barred by the double jeopardy prohibition, where there was "manifest necessity" for the declaration of a mistrial because of the unavailability of a key witness who could corroborate an accomplice's inculpatory testimony. Spencer v. State, 192 Ga. App. 822, 386 S.E.2d 705 (1989).
- Because defendant was acquitted of a charge of malice murder and the jury was deadlocked as to other offenses before them, retrial on the lesser included unindicted offense of voluntary manslaughter was not barred, provided the jury did not know about the murder charge. State v. Archie, 230 Ga. App. 253, 495 S.E.2d 581 (1998).
- Even if the solicitor failed to pay the solicitor's state bar dues, this fact did not show intentional misconduct or instigative intention on the solicitor's part, and, therefore, the double jeopardy clause did not bar the retrial of the defendant after the granting of a mistrial when it was discovered that the solicitor was not in good standing. Spears v. State, 234 Ga. App. 498, 506 S.E.2d 446 (1998).
- Although defense counsel had an opportunity to raise an objection after the court announced its intention to excuse the jurors and before the jurors were returned to the courtroom, counsel failed to do so; therefore, the trial court was authorized to find that defendant, through counsel, impliedly consented to the grant of a mistrial and defendant's plea of double jeopardy made during trial was properly denied. Howell v. State, 266 Ga. App. 480, 597 S.E.2d 546 (2004).
- Where, after requesting and considering alternatives to aborting a trial, the trial judge in good faith declares a mistrial because false statements of a juror might prevent a fair trial, the trial judge has not abused sound judicial discretion. In such a case, the double jeopardy clause does not bar retrial of a state criminal defendant. Jones v. Anderson, 404 F. Supp. 182 (S.D. Ga. 1974), aff'd, 522 F.2d 181 (5th Cir. 1975).
Mistrial resulting from removal of a juror who misadvised the trial court as to the juror's qualifications upon voir dire, thereby depriving the jury of the statutory minimum number, constituted a mistrial as a result of "manifest necessity," therefore, retrial following the mistrial was not barred by a plea of double jeopardy. Bishop v. State, 179 Ga. App. 606, 347 S.E.2d 350 (1986).
- The option of selecting a replacement juror pursuant to O.C.G.A. § 15-12-167 does not eliminate manifest necessity or the need for the protection of the ends of public justice as a basis for the declaration of a mistrial at a defendant's first trial. Nor is the trial court required by the double jeopardy clause to utilize an available alternative so that failure to do so constitutes an abuse of discretion. Jones v. Anderson, 404 F. Supp. 182 (S.D. Ga. 1974), aff'd, 522 F.2d 181 (5th Cir. 1975).
Juror bias created a manifest necessity to declare a mistrial. Wilson v. State, 217 Ga. App. 544, 458 S.E.2d 486 (1995).
- Reversal for trial error, as distinguished from evidentiary insufficiency, does not constitute a decision to the effect that the government has failed to prove its case. It implies nothing with respect to the guilt or innocence of the defendant. It is a determination that a defendant has been convicted through a judicial process which is defective in some fundamental respect. Hall v. State, 244 Ga. 86, 259 S.E.2d 41 (1979).
Where a conviction is reversed for trial error, retrial does not violate the double jeopardy clause. Hall v. State, 244 Ga. 86, 259 S.E.2d 41 (1979); United States v. Bizzard, 615 F.2d 1080 (5th Cir. 1980), cert. denied, 459 U.S. 973, 103 S. Ct. 305, 74 L. Ed. 2d 286 (1982).
- A defendant can be tried a second time for an offense when the defendant's prior conviction for that same offense had been set aside on appeal unless the accused was adjudged not guilty or there was a finding that the evidence did not support the verdict. Keener v. State, 238 Ga. 7, 230 S.E.2d 846 (1976), cert. denied, 433 U.S. 911, 97 S. Ct. 2980, 53 L. Ed. 2d 1096 (1977); Holloway v. McElroy, 632 F.2d 605 (5th Cir. 1980), cert. denied, 451 U.S. 1028, 101 S. Ct. 3019, 69 L. Ed. 2d 398 (1981); State v. Williams, 246 Ga. 788, 272 S.E.2d 725 (1980).
- If a criminal defendant is to avoid exposure to double jeopardy and thereby enjoy the full protection of the clause, the defendant's double jeopardy challenge to an indictment must be reviewable before that subsequent exposure occurs. United States v. Dunbar, 591 F.2d 1190 (5th Cir. 1979), aff'd, 611 F.2d 985 (5th Cir.), cert. denied, 447 U.S. 926, 100 S. Ct. 3022, 65 L. Ed. 2d 1120 (1980).
Because the double jeopardy clause is a guarantee against being twice put to trial for the same offense, the rights conferred thereunder would be significantly undermined if appellate review of double jeopardy claims were postponed until after conviction and sentence. United States v. Dunbar, 611 F.2d 985 (5th Cir.), aff'd, 614 F.2d 39 (5th Cir.), cert. denied, 447 U.S. 926, 100 S. Ct. 3022, 65 L. Ed. 2d 1120 (1980).
- Timely filing of a notice of appeal strips the trial court of its jurisdiction to try the case on the merits pending the outcome of the prior jeopardy appeal. United States v. Dunbar, 591 F.2d 1190 (5th Cir. 1979), aff'd, 611 F.2d 985 (5th Cir.), cert. denied, 447 U.S. 926, 100 S. Ct. 3022, 65 L. Ed. 2d 1120 (1980).
- U.S. Const., amend. 5's double jeopardy provision does not apply to a subsequent prosecution after a defendant has sought and obtained a new trial. Staggers v. Stynchcombe, 319 F. Supp. 1305 (N.D. Ga. 1970), aff'd, 436 F.2d 585 (5th Cir. 1971).
- The constitutional guarantee against double jeopardy imposes no limitations whatever upon the power to retry a defendant who has succeeded in getting the first conviction set aside. Staggers v. Stynchcombe, 319 F. Supp. 1305 (N.D. Ga. 1970), aff'd, 436 F.2d 585 (5th Cir. 1971).
- Because the defendant was tried and convicted and was granted a new trial on appeal, the grant of the new trial is not an acquittal of the defendant, and to try the defendant again does not violate the double jeopardy provision of the United States Constitution. Staggers v. State, 225 Ga. 581, 170 S.E.2d 430 (1969); Hardwick v. Doolittle, 558 F.2d 292 (5th Cir. 1977), cert. denied, 434 U.S. 1049, 98 S. Ct. 897, 54 L. Ed. 2d 801 (1978); United States v. Starling, 571 F.2d 934 (5th Cir. 1978); Cherry v. Director, State Bd. of Cors., 613 F.2d 1262 (5th Cir. 1980), aff'd in part, rev'd in part on other grounds, 635 F.2d 414 (5th Cir.), cert. denied, 454 U.S. 840, 102 S. Ct. 150, 70 L. Ed. 2d 124 (1981).
Adjudication of delinquency was reversed as the state presented no evidence of venue and the juvenile court did not take judicial notice that the location of an aggravated assault described at a hearing was in Sumter County; the county in which the offense was committed was not established and the evidence was insufficient to support the conviction, but retrial was not barred by the double jeopardy clause so long as venue was properly established at retrial. In the Interest of T.W., 280 Ga. App. 693, 634 S.E.2d 854 (2006).
- When a conviction is overturned on collateral attack, the double jeopardy clause does not bar retrial for the charges of which the successful appellant or petitioner had been found guilty. Hardwick v. Doolittle, 558 F.2d 292 (5th Cir. 1977), cert. denied, 434 U.S. 1049, 98 S. Ct. 897, 54 L. Ed. 2d 801 (1978).
- If the jury, at the first trial, finds defendant guilty of the offense of murder, with such conviction for murder being affirmed on appeal, but with the sentence for that offense reversed and a new trial ordered as to punishment, the defendant is not twice put in jeopardy of being convicted for the same offense, since the conviction for murder is affirmed on appeal. Defendant's punishment was the only thing that remained to be decided by the jury upon the defendant's retrial. Redd v. State, 242 Ga. 876, 252 S.E.2d 383, cert. denied, 442 U.S. 934, 99 S. Ct. 2870, 61 L. Ed. 2d 304 (1979).
- U.S. Const., amend. 5's double jeopardy prohibition bars the government from appealing an acquittal in a criminal prosecution. Price v. Georgia, 398 U.S. 323, 90 S. Ct. 1757, 26 L. Ed. 2d 300 (1970).
But can appeal a judgment of acquittal entered after a verdict of guilt. United States v. Clemones, 577 F.2d 1247 (5th Cir. 1978), modified, 582 F.2d 1373 (5th Cir. 1978), cert. denied, 445 U.S. 927, 100 S. Ct. 1313, 63 L. Ed. 2d 759 (1980).
- The Supreme Court has jurisdiction to review by certiorari any decision by the court of appeals in the defendant's favor in a criminal case, and a defendant's constitutional right against double jeopardy is not implicated when the state seeks discretionary review of an adverse decision by the court of appeals in a criminal case. State v. Tyson, 273 Ga. 690, 544 S.E.2d 444 (2001).
- The double jeopardy claim is not lost for failure to assert it on an interlocutory appeal. United States v. Bizzard, 674 F.2d 1382 (11th Cir.), cert. denied, 459 U.S. 973, 103 S. Ct. 305, 74 L. Ed. 2d 286 (1982).
Where a double jeopardy claim is found by the district court to be frivolous, the filing of a notice of appeal divests the district court of jurisdiction to try the case. United States v. Bizzard, 674 F.2d 1382 (11th Cir.), cert. denied, 459 U.S. 973, 103 S. Ct. 305, 74 L. Ed. 2d 286 (1982).
- A defendant is entitled to appellate review of a double jeopardy claim prior to trial, but such right to appeal before trial can be waived. United States v. Bizzard, 674 F.2d 1382 (11th Cir.), cert. denied, 459 U.S. 973, 103 S. Ct. 305, 74 L. Ed. 2d 286 (1982).
Where a defendant notices an appeal of a double jeopardy claim, suspends the trial, then dismisses the appeal, the right to appeal before trial is waived. United States v. Bizzard, 674 F.2d 1382 (11th Cir.), cert. denied, 459 U.S. 973, 103 S. Ct. 305, 74 L. Ed. 2d 286 (1982).
- Once a reviewing court reverses a conviction solely for insufficiency of the evidence to sustain the verdict of guilty, double jeopardy bars retrial; however, where a defendant obtains a reversal based upon "trial error," double jeopardy does not bar retrial. Osborne v. State, 166 Ga. App. 439, 304 S.E.2d 416 (1983).
- Where defendant's motion for new trial was granted on the basis of insufficiency of evidence, the trial court erred in denying defendant's plea in bar as to the defendant's further prosecution. Priest v. State, 265 Ga. 399, 456 S.E.2d 503 (1995).
- Where the testimony of a lab technician was not inadmissible because it was incompetent, but because the defense had not been furnished a copy of the laboratory report as required by former O.C.G.A. § 17-7-211, it was not excluded automatically on retrial. Thus, where the original conviction was reversed due to the trial error in the admission of evidence, rather than insufficiency of the evidence, a retrial was not barred by the double jeopardy provisions of the Georgia and United States Constitutions. Osborne v. State, 166 Ga. App. 439, 304 S.E.2d 416 (1983).
- The reversal of the defendants' convictions for felony murder based upon armed robbery due to insufficient evidence not only raised a procedural double jeopardy bar for that particular crime but also raised a procedural double jeopardy bar for the lesser-included offense of criminal attempt to commit armed robbery. Prater v. State, 273 Ga. 477, 541 S.E.2d 351 (2001).
- Even if misconduct of the trial court and prosecutor required the defendant to represent self at the initial trial without benefit of counsel, a retrial was not barred since there was no evidence that retrial was an intended consequence of the actions of the court and prosecutor. Keith v. State, 222 Ga. App. 360, 474 S.E.2d 256 (1996).
- Although there was sufficient evidence to support a juvenile's adjudication of delinquency based on the finding that the juvenile had committed acts, which, had the juvenile been an adult, would have supported a conviction for burglary in violation of O.C.G.A. § 16-7-1(a), the adjudication was reversed because the state failed to present any evidence to establish proof of venue beyond a reasonable doubt. The investigating officers' county of employment did not, in and of itself, constitute sufficient proof of venue to meet the beyond a reasonable doubt standard; however, the reviewing court noted that retrying the juvenile was not prohibited under the Double Jeopardy Clause, because the evidence presented at trial was otherwise sufficient to support the adjudication of delinquency. In the Interest of B.R., 289 Ga. App. 6, 656 S.E.2d 172 (2007).
- While the defendant was correct in asserting that the trial court should not have imposed sentence on both felony murder guilty verdicts, the Supreme Court of Georgia corrected that error on appeal when it affirmed the judgment of conviction and sentence only on the count 3 guilty verdict, and the defendant's argument was not based on what actually occurred, but upon speculation that, had the trial court imposed the correct sentence, it would have done so by merging count 3 into count 2. Thus, even assuming, arguendo, that such speculation warranted a review of the sentence imposed, such presented no basis for reversal because nothing required the trial court to merge the two counts in the way the defendant proposed. Brady v. State, 283 Ga. 359, 659 S.E.2d 368 (2008).
- The guarantee against double jeopardy does not restrict the length of sentence which may be imposed upon reconviction, and the imposition of a more severe sentence upon retrial does not violate the equal protection clause of the U.S. Const., amend. 14. Chaffin v. State, 227 Ga. 327, 180 S.E.2d 741 (1971); Rozier v. State, 126 Ga. App. 336, 190 S.E.2d 627 (1972); Stuckey v. Stynchcombe, 614 F.2d 75 (5th Cir. 1980).
- Double jeopardy concerns are not implicated in sentence modifications as long as the overall period of imprisonment is reduced. United States v. Jackson, 923 F.2d 1494 (11th Cir. 1991).
Juvenile defendant's voluntary manslaughter sentence was vacated, and resentencing was ordered, when the trial court erred by increasing the same after defendant had already begun serving it, because the original sentence was final at the time it was imposed, and defendant had no reason to believe otherwise; hence, the trial court's increased sentence constituted double jeopardy and could not stand. Williams v. State, 273 Ga. App. 42, 614 S.E.2d 146 (2005).
- System that allows the imposition of a more severe penalty following a successful appeal is not per se constitutionally infirm. The focus is on the potential for vindictiveness to determine whether a particular procedure violates due process. Dan J. Sheehan Co. v. Occupational Safety & Health Review Comm'n, 520 F.2d 1036 (5th Cir. 1975), cert. denied, 424 U.S. 965, 96 S. Ct. 1458, 47 L. Ed. 2d 731 (1976).
Vindictiveness against a defendant for successfully attacking the defendant's first conviction must play no part in resentencing after retrial. Chaffin v. Stynchcombe, 412 U.S. 17, 93 S. Ct. 1977, 36 L. Ed. 2d 714 (1973), see 23 Emory L.J. 879, United States v. McDuffie, 542 F.2d 236 (5th Cir. 1976); Hardwick v. Doolittle, 558 F.2d 292 (5th Cir. 1977), cert. denied, 434 U.S. 1049, 98 S. Ct. 897, 54 L. Ed. 2d 801 (1978); Thompson v. State, 154 Ga. App. 704, 269 S.E.2d 474 (1980).
Rendition of a higher sentence by a jury upon retrial does not violate the double jeopardy clause nor the due process clause so long as the jury is not informed of the prior sentence and the second sentence is not otherwise shown to be a product of vindictiveness. Chaffin v. Stynchcombe, 412 U.S. 17, 93 S. Ct. 1977, 36 L. Ed. 2d 714 (1973), for comment, see 23 Emory L. J. 879(1974).
- An increase in a defendant's sentence by a jury, on retrial of the case, is not unconstitutional unless the defendant can demonstrate that the increase was prompted by a spirit of vindictiveness, since the jury ordinarily will not know of the previous trial or sentence. Chaffin v. Stynchcombe, 455 F.2d 640 (5th Cir. 1972), aff'd, 412 U.S. 17, 93 S. Ct. 1977, 36 L. Ed. 2d 714 (1973), for comment, see 23 Emory L. J. 879 (1974).
- To ensure the absence of vindictiveness and to assure defendants that they will not be penalized for asserting their rights on appeal, whenever a judge imposes a more severe sentence upon a defendant after a new trial, the reasons for so doing must affirmatively appear. Chaffin v. Stynchcombe, 412 U.S. 17, 93 S. Ct. 1977, 36 L. Ed. 2d 714 (1973); United States v. McDuffie, 542 F.2d 236 (5th Cir. 1976); Hardwick v. Doolittle, 558 F.2d 292 (5th Cir. 1977), cert. denied, 434 U.S. 1049, 98 S. Ct. 897, 54 L. Ed. 2d 801 (1978); Thompson v. State, 154 Ga. App. 704, 269 S.E.2d 474 (1980).
Reasons given for more severe sentence should in fact support the imposition of the harsher penalty. Thompson v. State, 154 Ga. App. 704, 269 S.E.2d 474 (1980).
More severe sentence must be based upon objective information concerning identifiable conduct of the defendant occurring after the original sentencing proceeding. United States v. McDuffie, 542 F.2d 236 (5th Cir. 1976); Hardwick v. Doolittle, 558 F.2d 292 (5th Cir. 1977), cert. denied, 434 U.S. 1049, 98 S. Ct. 897, 54 L. Ed. 2d 801 (1978).
Factual data upon which the increased sentence is based must be made part of the record, so that the constitutional legitimacy of the increased sentence may be fully reviewed on appeal. United States v. McDuffie, 542 F.2d 236 (5th Cir. 1976).
Submitting an additional aggravating circumstance to the jury for its consideration at a resentencing trial does not violate double jeopardy protection. Davis v. State, 242 Ga. 901, 252 S.E.2d 443 (1979), vacated in part on other grounds, 446 U.S. 961, 100 S. Ct. 2934, 64 L. Ed. 2d 819 (1980).
Resentencing to correct an illegal sentence is not double jeopardy, even if the prisoner has already served part of the prisoner's term. Stuckey v. Stynchcombe, 614 F.2d 75 (5th Cir. 1980).
- Because O.C.G.A. § 16-13-31(f)(1) required a mandatory minimum sentence for trafficking in methamphetamine of ten years and a $200,000 fine, and the sentence imposed by the trial court failed to include the fine, the trial court's resentencing to add the fine after defendant began serving the sentence was valid and did not violate defendant's double jeopardy rights. The suspended sentence provisions of O.C.G.A. § 17-10-1(a) were inapplicable to the mandatory sentence provisions of § 16-13-31, and there was no indication that the trial court intended to suspend the fine portion. Strickland v. State, 301 Ga. App. 272, 687 S.E.2d 221 (2009).
Where the original sentence was invalid, vacation of that sentence and imposition of another sentence did not constitute double jeopardy. Crews v. State, 170 Ga. App. 104, 316 S.E.2d 549 (1984).
- The guarantee against double jeopardy is violated when punishment already exacted for an offense is not fully credited in imposing a new sentence after retrial for the same offense. Chaffin v. State, 227 Ga. 327, 180 S.E.2d 741 (1971).
- Where a defendant who was convicted for murder and sentenced to life imprisonment is granted a new trial and subsequently pleaded guilty to voluntary manslaughter and is sentenced to ten years imprisonment, the trial court is without authority to vacate the motion for new trial and ten year sentence and reinstate the sentence of life imprisonment. Brown v. Moody, 243 Ga. 473, 254 S.E.2d 853 (1979).
The imposition of a new sentence to be served consecutively to a sentence on a prior conviction, in place of a vacated sentence that was to be served concurrently with the sentence on that prior conviction, may constitute an impermissible harsher punishment. Thomas v. State, 150 Ga. App. 341, 258 S.E.2d 28 (1979).
- Where a first death sentence is vacated, the double jeopardy clause does not prevent the state from relying on an aggravating circumstance to support a death sentence at a second sentencing hearing not relied on at the first such hearing. Davis v. Kemp, 829 F.2d 1522 (11th Cir. 1987), cert. denied, 485 U.S. 929, 108 S. Ct. 1099, 99 L. Ed. 2d 262 (1988).
- A reversal of a conviction in which the death penalty was imposed does not preclude imposing the death penalty upon a retrial unless the sentencer or reviewing court has found that the evidence is insufficient to support the death penalty. Crawford v. State, 256 Ga. 57, 344 S.E.2d 215, cert. denied, 479 U.S. 989, 107 S. Ct. 583, 93 L. Ed. 2d 585 (1986).
State was not prohibited from seeking anew the death penalty after reversal of a murder conviction, where, although the jury had improperly specified "kidnapping" as the aggravating circumstance in imposing the death penalty, there had been no finding that the evidence was insufficient to support the death penalty. Crawford v. State, 256 Ga. 57, 344 S.E.2d 215, cert. denied, 479 U.S. 989, 107 S. Ct. 583, 93 L. Ed. 2d 585 (1986).
- If convicting jury in a murder trial sentences the defendant to life imprisonment, this constitutes an acquittal of the charge that the evidence supports a finding of a statutory aggravating circumstance, and in any retrial the double-jeopardy clause prohibits the defendant's being given the death sentence. Hill v. State, 250 Ga. 821, 301 S.E.2d 269 (1983).
- The federal district court's initial judgment holding that there was insufficient evidence to support a death sentence, i.e., insufficient evidence to prove the alleged statutory aggravating factors beyond a reasonable doubt, as required by O.C.G.A. § 17-10-30(c), which decision was left undisturbed by the federal appellate court, which reversed the district's court's denial of the writ of habeas corpus with respect to the guilt phase of the trial, barred the state under the double jeopardy clause from attempting to impose the death penalty on the defendant in the defendant's retrial. Young v. Kemp, 760 F.2d 1097 (11th Cir. 1985), cert. denied, 476 U.S. 1123, 106 S. Ct. 1991, 90 L. Ed. 2d 672 (1986).
Only one aggravating factor was presented to and considered by the jury which imposed the death sentence in the defendant's first trial for murder. Since the ground failed, on appeal, for constitutional insufficiency of the evidence, the state could not, should it choose to try the defendant again, seek to reimpose the death penalty. Godfrey v. Francis, 613 F. Supp. 747 (N.D. Ga. 1985), aff'd, 836 F.2d 1557 (11th Cir.), cert. dismissed, 487 U.S. 1264, 109 S. Ct. 27, 101 L. Ed. 2d 977 (1988).
- If a defendant overturns a death sentence on legal grounds, the death penalty may be sought on resentencing, and the state may offer proof of statutory aggravating circumstances not offered at the first trial. Zant v. Redd, 249 Ga. 211, 290 S.E.2d 36 (1982), cert. denied, 463 U.S. 1213, 103 S. Ct. 3552, 77 L. Ed. 2d 1398 (1983).
If a defendant overturns a death sentence on technical grounds, the sentence is nullified and the state and the defense start anew. Consequently, on resentencing, the state may again seek the death penalty and may offer any evidence on aggravating circumstances in support thereof. Likewise, the defendant is entitled to bring the jury any mitigating circumstances available to him, including those not known or utilized at the first sentencing trial. Zant v. Redd, 249 Ga. 211, 290 S.E.2d 36 (1982), cert. denied, 463 U.S. 1213, 103 S. Ct. 3552, 77 L. Ed. 2d 1398 (1983).
Rule that state cannot seek death penalty on resentencing after original sentencing jury has imposed a life sentence does not apply where jury has imposed death penalty and death penalty is vacated on legal grounds as opposed to grounds that the evidence is insufficient to support the verdict. Patrick v. State, 249 Ga. 708, 293 S.E.2d 329, cert. denied, 459 U.S. 1089, 103 S. Ct. 575, 74 L. Ed. 2d 936 (1982).
- The double jeopardy clause was not violated at the defendant's resentencing trial because the judge permitted the state to introduce evidence pertaining to the defendant's alleged rape of the victim, where the jury in the first sentencing trial returned a death sentence upon a finding of "torture." The first jury may have taken the alleged rape into account, as sexual abuse constitutes "torture" under Georgia law for the purpose of a death sentence aggravating circumstance. Green v. Zant, 738 F.2d 1529 (11th Cir.), cert. denied, 469 U.S. 1098, 105 S. Ct. 607, 83 L. Ed. 2d 716 (1984).
- Court is authorized to amend its oral pronouncement to change sentence from 12 months on probation to 12 months in jail, where there is no suggestion of vindictiveness against defendant for having exercised any legal right, but rather it is only trial court's effort to make punishment fit crime of which jury had found defendant to be guilty. Curry v. State, 248 Ga. 183, 281 S.E.2d 604 (1981).
Although an oral sentence is not a binding judgment of the court, once a person has entered upon the execution of the sentence, the court is without power to change it by increasing the punishment. However, when there is an error or irregularity in failing to inform the defendant of conditions under which the sentence to confinement was imposed, the court may correct the error by recalling the defendant and sentencing the defendant as provided by law. Henderson v. State, 162 Ga. App. 320, 292 S.E.2d 77 (1982).
Where the record shows, without dispute, that the amended sentence is identical to the intended original sentence and the amended sentence is corrected to the oral pronouncement of the trial court and to the defendant's original understanding of the sentence, this is merely a correction to make the sentence speak the truth. Henderson v. State, 162 Ga. App. 320, 292 S.E.2d 77 (1982).
Once a person has entered upon the execution of the person's sentence, the court is without power to change it by increasing the punishment. Brown v. Moody, 243 Ga. 473, 254 S.E.2d 853 (1979); Hudson v. State, 248 Ga. 397, 283 S.E.2d 271 (1981).
Sentence which has been reduced to writing and signed by judge may not be increased after defendant has begun to serve that sentence. Curry v. State, 248 Ga. 183, 281 S.E.2d 604 (1981).
Unless a statute explicitly provides for sentence modification, or the defendant knowingly engages in deception, a sentence may not be altered in a manner prejudicial to the defendant after the defendant has started serving the sentence. United States v. Jones, 722 F.2d 632 (11th Cir. 1983).
- Although it is true that an oral sentence is not a binding judgment of the court, the law is also clear that once a person has entered upon the execution of the sentence, the court is without power to change it by increasing the punishment. This is considered a violation of the prohibition under U.S. Const., amend. 5 against double punishment or jeopardy. Inman v. State, 124 Ga. App. 190, 183 S.E.2d 413 (1971); Hinton v. State, 127 Ga. App. 853, 195 S.E.2d 472 (1973); Jones v. State, 155 Ga. App. 382, 271 S.E.2d 30 (1980); Harp v. State, 228 Ga. App. 473, 491 S.E.2d 923 (1997).
Oral declaration as to what sentence shall be is not the sentence of the court; the sentence signed by the judge is. However, oral declaration of sentence may not be increased after defendant has begun to serve it. Curry v. State, 248 Ga. 183, 281 S.E.2d 604 (1981).
- Where a defendant is in fact incarcerated immediately upon oral announcement of misdemeanor sentence on a Friday and is held in jail over the weekend, the court is without power to increase the sentence the following Monday. Jones v. State, 155 Ga. App. 382, 271 S.E.2d 30 (1980).
- This amendment, in its self-incrimination clause, enables the citizen to create a zone of privacy that the government may not force the citizen to surrender to the citizen's detriment. Smith v. Price, 446 F. Supp. 828 (M.D. Ga. 1977), rev'd on other grounds, 616 F.2d 1371 (5th Cir. 1980).
- The requirement of O.C.G.A. § 17-16-4, part of the Criminal Procedure Discovery Act, that a defendant disclose any mitigating evidence the defendant intended to introduce in the presentence hearing did not violate the defendant's privilege against self-incrimination; statements of witnesses a defendant intends to call to testify are not personal to the defendant, and although the disclosure of the list of witnesses a defendant intends to call is personal to the defendant, a trial court can exercise its discretion to specify the time, place, and manner of making the discovery and to enter such orders as seem just under the circumstances when self-incrimination concerns arise, such as a protective order or a continuance pending the completion of the guilt/innocence phase of the trial. Muhammad v. State, 282 Ga. 247, 647 S.E.2d 560 (2007).
- The constitutional privileges against self-incrimination are applicable to post-arrest, pretrial police interrogation. Howard v. State, 237 Ga. 471, 228 S.E.2d 860 (1976); Clark v. State, 237 Ga. 901, 230 S.E.2d 277 (1976).
Applicability of the privilege to the trial itself. Howard v. State, 237 Ga. 471, 228 S.E.2d 860 (1976).
Protections of U.S. Const., amend. 5 apply fully to state proceedings through U.S. Const., amend. 14. Tennesco, Inc. v. Berger, 144 Ga. App. 45, 240 S.E.2d 586 (1977).
- Protections of U.S. Const., amend. 5 may be invoked in civil as well as criminal actions. Tennesco, Inc. v. Berger, 144 Ga. App. 45, 240 S.E.2d 586 (1977).
The insured's danger of incrimination was sufficient to support the insured's refusal to answer the insured's liability insurer's questions about the insured's actions giving rise to the claim against the insured, because those actions had led to criminal convictions, and a possibility existed that the insured's pending motion for a new trial in the criminal case could have been granted. Anderson v. Southern Guar. Ins. Co., 235 Ga. App. 306, 508 S.E.2d 726 (1998).
In defendant's trial for forgery and racketeering for selling fake badges for a golf tournament to a ticket agency, the trial court did not abuse its discretion in denying defendant's motion for mistrial when the state attempted to question defendant's spouse after the spouse invoked the Fifth Amendment while on the witness stand because, despite defendant's argument that defendant's spouse's use of the Fifth Amendment could have been interpreted as evidence against the defendant and thus violated defendant's own right against self incrimination, the spouse's use of the Fifth Amendment related to the spouse's own concerns about self incrimination, not to defendant's, and the court instructed defendant that defendant could request a charge on the scope of the Fifth Amendment right against self incrimination but the record did not indicate that defendant requested such a charge. Davis v. State, 264 Ga. App. 128, 589 S.E.2d 700 (2003).
Privilege against self-incrimination cannot be asserted in advance of the questions actually propounded in the examination or hearing. Spivey v. State, 200 Ga. App. 284, 407 S.E.2d 425, cert. denied, 200 Ga. App. 897, 407 S.E.2d 425 (1991).
Privilege against self-incrimination may not be overridden by the right of confrontation under U.S. Const., amend. 6. United States v. Brown, 634 F.2d 819 (5th Cir. 1981).
- Undeniably, U.S. Const., amend. 1, in some circumstances protects an individual from being compelled to disclose the individual's associational relationships. However, the protections of U.S. Const., amend. 1, unlike a proper claim of the privilege against self-incrimination under U.S. Const., amend. 5, do not afford a witness the right to resist inquiry in all circumstances. Braden v. United States, 272 F.2d 653 (5th Cir. 1959), aff'd, 365 U.S. 431, 81 S. Ct. 584, 5 L. Ed. 2d 653 (1961).
- State courts do not have the power to expand the federal constitutional right against self-incrimination beyond the limits given it by federal authorities. Page v. Page, 235 Ga. 131, 218 S.E.2d 859 (1975).
- While the language of U.S. Const., amend. 5 has long been construed to be limited to testimony, the language of Ga. Const. 1976, Art. I, Sec. I, Para. XIII (Ga. Const. 1983, Art. I, Sec. I, Para. XVI) has been construed to limit the state from forcing the individual to present evidence, oral or real. Johnson v. State, 156 Ga. App. 496, 274 S.E.2d 837 (1980).
Constitutional right against self- incrimination is incorporated in O.C.G.A. § 24-9-20. Harris v. State, 237 Ga. 718, 230 S.E.2d 1 (1976), cert. denied, 431 U.S. 933, 97 S. Ct. 2642, 53 L. Ed. 2d 251 (1977), sentence vacated, Eppinger v. State, 198 Ga. App. 889, 403 S.E.2d 829 (1991), cert. denied, 198 Ga. App. 897, 403 S.E.2d 829 (1991).
O.C.G.A. § 24-9-20 is governed by the same standards as its constitutional counterpart, U.S. Const., amend. 5. Jordan v. State, 239 Ga. 526, 238 S.E.2d 69 (1977).
- Where refusal to answer questions is expressly and exclusively predicated on the self-incrimination clause of U.S. Const., amend. 5, the parallel Georgia constitutional and statutory provisions, Ga. Const. 1976, Art. I, Sec. I, Para. XIII (Ga. Const. 1983, Art. I, Sec. I, Para. XVI) and O.C.G.A. § 24-9-27, and interpretations of them, are not material. Master v. Savannah Sur. Assocs., 148 Ga. App. 678, 252 S.E.2d 186 (1979).
Essential predicate for a claim under U.S. Const., amend. 5 is a finding that an accused has been compelled to incriminate oneself. McAllister v. Brown, 555 F.2d 1277 (5th Cir. 1977).
- The protection of U.S. Const., amend. 5 and O.C.G.A. § 24-9-27 can only be invoked when there is a substantial and real danger of incrimination. The mere say-so of the witness does not establish this. Defendant must also show that the defendant has reasonable cause to apprehend danger of incrimination from the answer, and the court must first determine whether there is a proper basis for invoking the privilege. Prince & Paul v. Don Mitchell's WLAQ, Inc., 127 Ga. App. 502, 194 S.E.2d 269 (1972).
Trial court did not err in refusing to let the defendants call the co-indictee as a witness to testify about the prior acts of violence the co-indictee committed in 1994 for choking the co-indictee's mother and in 2004 for choking another person because the co-indictee's counsel announced that the co-indictee would invoke the co-indictee's privilege against self- incrimination as to any questions about those prior acts and the trial court reasonably concluded that any questions as to the co-indictee's past violent acts could incriminate the co-indictee and affect the co-indictee's pending trial. Brown v. State, 295 Ga. 804, 764 S.E.2d 376 (2014).
- Extensive questioning concerning financial affairs might tend to incriminate a person as a matter of law. In the particular situation of financial affairs, only the defendant or witness can weigh the effect. Busby v. Citizens Bank, 131 Ga. App. 738, 206 S.E.2d 640 (1974).
- If a court can not say that answers to questions concerning a defendant's financial resources and dealings might not tend to incriminate the defendant in any matter, under either state or federal law, a trial judge does not err in allowing the defendant to determine whether answers to the interrogatories might tend to incriminate the defendant. Mallin v. Mallin, 227 Ga. 833, 183 S.E.2d 377 (1971).
Person is not entitled to Miranda warnings as a matter of right, even though that person is a suspect, unless that person had been taken into custody or has been deprived of freedom of action in another significant way. Although the focus of the investigation may be on the defendant, the defendant must also be in a custodial situation for Miranda to apply. Ford v. State, 205 Ga. App. 12, 421 S.E.2d 294 (1992).
Where the accused was neither in custody nor so restrained as to equate to a formal arrest, any statements made to the investigating officer were made under noncustodial circumstances and Miranda warnings were not required. Tolliver v. State, 273 Ga. 785, 546 S.E.2d 525 (2001).
- Defendant was not in "custody" for Miranda purposes when questioned by police because although defendant's movement was restrained, it was because of defendant's own injury and not by any police conduct. Meadows v. State, 264 Ga. App. 160, 590 S.E.2d 173 (2003).
- Since the defendant was not under formal arrest or any restraint when an officer questioned the defendant in the defendant's hotel room and drove the defendant to a hospital, Miranda warnings were not required. That the defendant was the focus of a murder investigation did not require the officer to give Miranda warnings; the relevant inquiry was whether a reasonable person in the defendant's situation would have perceived that the person was in custody. Timmreck v. State, 285 Ga. 39, 673 S.E.2d 198 (2009).
- Defendant in SEC violation case had repeatedly invoked the defendant's Fifth Amendment privilege against self-incrimination, but not in a blanket manner, in pre-indictment discovery requests. Although a defendant may not assert the privilege on matters which would not tend to incriminate defendant, it was likely that any testimony or response sought in investigating allegations of civil allegations of fraud would provide or would lead to providing relevant incriminating information for a criminal securities fraud case; furthermore, the act of producing documents whose contents might not be privileged would likely be sufficiently testimonial and incriminating in nature to trigger the Fifth Amendment privilege. Therefore, the defendant's response to particular questions by invoking the privilege was protected. SEC v. Zimmerman, 854 F. Supp. 896 (N.D. Ga. 1993).
- If it is plain from the context of the questioning in general that the plaintiff is invoking the privilege under U.S. Const., amend. 5 against self incrimination it is not necessary to invoke the privilege in express terms. Temple v. Temple, 228 Ga. 73, 184 S.E.2d 183 (1971).
- Law enforcement officers must immediately cease questioning a defendant who has clearly asserted a right to have counsel present during custodial interrogation; but if the defendant makes a reference to an attorney that is ambiguous or equivocal in that a reasonable officer in light of the circumstances would have understood only that the suspect might be invoking the right to counsel, cessation of the questioning is not required. Since a reasonable officer would not necessarily have understood defendant's reference to an attorney to be a clear request for counsel, the officer was not required to cease the questioning. Fitz v. State, 275 Ga. 349, 566 S.E.2d 668 (2002).
Defendant's statements made to law enforcement during an interrogation in jail were properly suppressed as made in violation of the defendant's Fifth Amendment right to remain silent because the defendant's statement that "I ain't got no more to say. I mean, this is it" was an unequivocal assertion of the right against self-incrimination; statements made prior to that assertion were not suppressed as the defendant was properly given Miranda rights. State v. Moon, 285 Ga. 55, 673 S.E.2d 255 (2009).
Exclusion is remedy for violation of U.S. Const., amend. 5. - Under Miranda, a criminal defendant's remedy for a violation of the defendant's rights under U.S. Const., amend. 5 is the exclusion from trial of any evidence obtained from the defendant during the defendant's illegal detention. Sheffield v. State, 235 Ga. 507, 220 S.E.2d 265 (1975).
- Being forced to go to trial in a civil case while criminal charges arising out of the same conduct are pending does not violate U.S. Const., amend. 5 by forcing the defendant to choose between preserving the defendant's privilege against self-incrimination and losing the civil action. United States v. White, 589 F.2d 1283 (5th Cir. 1979).
If there is no indication that invocation of U.S. Const., amend. 5 would result in an adverse judgment, nor any indication that the defendant's silence would compel a verdict for the plaintiff, compelling the defendant to go to trial in a civil suit before the defendant's trial on a related criminal charge did not violate the defendant's privilege under U.S. Const., amend. 5. United States v. White, 589 F.2d 1283 (5th Cir. 1979).
In a case in which the defendant moved the court to stay further proceedings in a civil action by the comptroller of the currency pending the outcome of possible criminal proceedings against the defendant in a pending criminal investigation, it was held that although the choice between testifying or invoking U.S. Const., amend. 5 may be difficult, it does not create a basis for a stay. Comptroller of Currency v. Lance, 632 F. Supp. 437 (N.D. Ga. 1986).
Generally, there is no unconstitutional infringement of the Fifth Amendment privilege by forcing an individual to risk disadvantage in a civil case by refusing to provide material facts for fear of self-incrimination in a pending criminal case, but there is an exception to this rule in instances where an individual who is a defendant in pending civil and criminal cases is forced to choose between forfeiting the privilege against self-incrimination or losing the civil case by automatic summary judgment; the exception does not apply if assertion of the privilege merely results in loss of the defendant's most effective defense rather than an adverse summary judgment. Anderson v. Southern Guar. Ins. Co., 235 Ga. App. 306, 508 S.E.2d 726 (1998).
- Defendant failed to show how requiring the defendant to conform to the pleading requirements of O.C.G.A. § 16-13-49(o)(3), relating to civil forfeiture proceedings against persons arrested for controlled substances violations, violated defendant's Fifth Amendment right against self-incrimination. Jett v. State, 230 Ga. App. 655, 498 S.E.2d 274 (1998).
Defendant was not compelled to be a witness against self in violation of defendant's Fifth Amendment rights when the trial court permitted admission in defendant's criminal case of answers defendant gave in pleadings in a related civil forfeiture proceeding that defendant owned certain items of property seized at defendant's residence, including illegal drugs, as defendant could have sought a stay of the forfeiture proceeding by asserting defendant's Fifth Amendment rights under the forfeiture statute, but chose not to do so. Clemons v. State, 257 Ga. App. 96, 574 S.E.2d 535 (2002).
Trial court could infer admissions from defendant's invocation of defendant's Fifth Amendment right against self-incrimination in a civil forfeiture proceeding. Sanders v. State, 259 Ga. App. 422, 577 S.E.2d 94 (2003).
- Although a consent to search was requested and obtained after the defendant had invoked the defendant's right to remain silent, the defendant's rights under the Fifth Amendment privilege against self- incrimination were not violated by use of the consent and by introduction of the evidence obtained as a result of the ensuing search, since the Fifth Amendment protects only against compelled incriminating evidence of a testimonial nature and not against compelled production of physical evidence. United States v. Hidalgo, 7 F.3d 1566 (11th Cir. 1993).
- Defendant who entered a guilty plea retained the privilege against self- incrimination prior to sentencing. United States v. Kuku, 129 F.3d 1435 (11th Cir. 1997), cert. denied, 524 U.S. 909, 118 S. Ct. 2071, 141 L. Ed. 2d 147 (1998).
- A witness cannot be compelled to answer any question the answer to which would tend to incriminate the witness, or would constitute a necessary link in the chain of testimony sufficient to convict the witness of a criminal offense. But the privilege is personal to the witness, and cannot be claimed for the witness by a party to the action. Johnson v. State, 112 Ga. App. 597, 145 S.E.2d 636 (1965).
Defendant in a civil action lacks standing to challenge the admission of testimony given in a previous criminal action on the ground that such action violated the witness' Fifth Amendment rights or the immunity agreement between the witness and the state, since the privilege against self-incrimination is that of the person under examination as a witness and is intended for the witness' protection only. Kesler v. Veal, 165 Ga. App. 475, 300 S.E.2d 217 (1983).
- Some constitutional rights are personal and may not be vicariously asserted, among these is the right against self-incrimination. Hall v. United States, 413 F.2d 45 (5th Cir. 1969).
- Party's successors cannot invoke the original party's right under U.S. Const., amend. 5 against incrimination. The privilege is purely personal. United States v. Ayers, 615 F.2d 658 (5th Cir. 1980).
- The privilege against self-incrimination is that of the person under examination as a witness and is intended for the witness' protection only. The defendant on trial has no standing to raise this issue on behalf of the witness, even where the witness is an accomplice. Lively v. State, 237 Ga. 35, 226 S.E.2d 581 (1976).
- A child is entitled to the same constitutional privilege against self-incrimination as is available to adults. Freeman v. Wilcox, 119 Ga. App. 325, 167 S.E.2d 163 (1969), for comment, see 22 Mercer L. Rev. 597 (1971).
Constitutional privilege against self-incrimination is as applicable to juveniles as it is with respect to adults. K.E.S. v. State, 134 Ga. App. 843, 216 S.E.2d 670 (1975).
- Under U.S. Const., amend. 5, a corporation cannot avail itself of the privilege against self-incrimination. Classic Art Corp. v. State, 245 Ga. 448, 265 S.E.2d 577 (1980); In re Agan, 498 F. Supp. 493 (N.D. Ga. 1980).
Corporate officer may be compelled to identify and authenticate corporate records produced pursuant to a valid subpoena duces tecum even though this involves compelling oral testimony, where the officer is compelled to state nothing more than the belief that the papers are those described in the subpoena, since such testimony is only ancillary to the primary act compelled - that of producing the documents. In re Agan, 498 F. Supp. 493 (N.D. Ga. 1980).
- In context of compliance by corporate officer with requests for documents designated in subpoena duces tecum, absent unusual circumstances, testifying before grand jury as to the officer's name and address merely provides identification information ancillary to production of the documents called for in the subpoena and is not within the scope of U.S. Const., amend. 5's privilege against self-incrimination. In re Agan, 498 F. Supp. 493 (N.D. Ga. 1980).
Corporate officers may be compelled to produce corporate records even though they may be personally incriminating, since corporations can only speak through their officers. In re Agan, 498 F. Supp. 493 (N.D. Ga. 1980).
Even though a corporate officer is the sole shareholder or alter ego of the corporation, the officer may be compelled to produce corporate records that may incriminate the officer. In re Agan, 498 F. Supp. 493 (N.D. Ga. 1980).
Generally, corporate books and records cannot be insulated from reasonable demands by governmental authorities by a claim of personal privilege and same only applies to the private property of the person claiming the privilege; thus, a corporate officer may not withhold testimony or documents on the ground that the corporation would be incriminated, nor may the custodian of corporate books or records withhold them on the ground that the custodian personally might be incriminated by their production. Jacobs v. State, 157 Ga. App. 466, 278 S.E.2d 21 (1981).
An individual may not claim the Fifth Amendment privilege against compulsory self-incrimination to withhold documents of a collective entity held in a representative capacity and an order of a district court finding that individual in contempt of court for refusing to produce the records of a corporation in compliance with a grand jury subpoena duces tecum will be affirmed. In re Grand Jury Subpoena Duces Tecum, 795 F.2d 904 (11th Cir. 1986).
A corporate representative or agent cannot claim a Fifth Amendment privilege against producing corporate documents, whether or not they were prepared by the representative or agent, regardless of the incriminating nature of the information they contain. In re Grand Jury Subpoena, 635 F. Supp. 569 (N.D. Ga. 1986).
Defendant in a criminal case, an attorney who was the sole shareholder of a professional corporation, was properly held in civil contempt for not producing a noncompetition agreement between the corporation and a former employee. The agreement was a corporate document, and the defendant had been subpoenaed to produce the document as a corporate agent; thus, the defendant could not assert the defendant's personal right against self-incrimination and the small size of the corporation was immaterial. Thompson v. State, 294 Ga. App. 363, 670 S.E.2d 152 (2008).
Custodian of corporate or association books, by accepting custodianship, voluntarily assumes a duty that overrides the custodian's claim of privilege with respect to the production of records themselves, but does not waive the custodian's constitutional privilege as to oral testimony; therefore, a corporate officer who is the custodian of the records may not resist the production of corporate books in response to subpoena even though such books may tend to incriminate the custodian as an individual. Jacobs v. State, 157 Ga. App. 466, 278 S.E.2d 21 (1981).
- The custodian of corporate records must produce the records if the custodian has them and the custodian may also be required to identify them; but the custodian may not be required to do more in answering questions as to their whereabouts such as to disclose the whereabouts of the records or who has possession of them. Jacobs v. State, 157 Ga. App. 466, 278 S.E.2d 21 (1981).
Witness in a state court can claim the privilege against self-incrimination as to matters which might tend to incriminate him under either state or federal law. Mallin v. Mallin, 227 Ga. 833, 183 S.E.2d 377 (1971).
Persons other than criminal defendants cannot stymie questioning totally, but must take the stand when called and decide after each question whether to invoke the privilege or not. Tennesco, Inc. v. Berger, 144 Ga. App. 45, 240 S.E.2d 586 (1977).
- Therefore, such a witness cannot be said to have waived the witness' privilege under U.S. Const., amend. 5 against self-incrimination by testifying. United States v. Dooley, 587 F.2d 201 (5th Cir.), cert. denied, 440 U.S. 949, 99 S. Ct. 1430, 59 L. Ed. 2d 639 (1979).
- A potential defendant may be subpoenaed to appear before a grand jury and subsequently indicted without violating the self-incrimination proscription of the Fifth Amendment, if the potential defendant testifies voluntarily. Blackwell v. United States, 405 F.2d 625 (5th Cir.), cert. denied, 395 U.S. 962, 89 S. Ct. 2104, 23 L. Ed. 2d 747 (1969).
Disciplinary hearing while incarcerated in a state correctional institution is a custodial hearing which requires an appropriate warning of the right against self-incrimination before any statements made are admissible against the speaker in a subsequent criminal proceeding for those same criminal acts (in the absence of waiver). Grant v. State, 154 Ga. App. 758, 270 S.E.2d 42 (1980).
- An attorney whose professional activities are under investigation by the disciplinary authorities of the State Bar of Georgia is entitled to the protection of the constitutional safeguards of the federal and state Constitutions against self-incrimination. Wilson v. State Bar, 225 Ga. 343, 168 S.E.2d 584, cert. denied, 396 U.S. 957, 90 S. Ct. 429, 24 L. Ed. 2d 421 (1969).
- Attorney who delivered an anonymous campaign contribution on behalf of a client in violation of O.C.G.A. § 21-5-30(e) was improperly held in contempt for failing to disclose the client's name to the State Ethics Commission; the attorney invoked the self-incrimination privilege, and the trial court found the attorney in contempt without first determining whether the commission's proposed questions might have been incriminating. Begner v. State Ethics Comm'n, 250 Ga. App. 327, 552 S.E.2d 431 (2001).
- When compliance with a federal statute entails a very substantial risk of self-incrimination, a plea of the privilege against self-incrimination provides a complete defense to a prosecution based on failure to comply with that statute. United States v. Davis, 330 F. Supp. 899 (N.D. Ga. 1971).
- A statute requiring the registration of firearms does not violate the privilege against self-incrimination where the statute prohibits the direct or indirect use of any information obtained from firearm registration in a criminal prosecution of a violation occurring prior to or concurrently with the registration. United States v. Bright, 471 F.2d 723 (5th Cir.), cert. denied, 412 U.S. 921, 93 S. Ct. 2742, 37 L. Ed. 2d 148 (1973).
- The timely assertion of the privilege under U.S. Const., amend. 5 by the transferee of an unregistered firearm is no longer a defense to a criminal prosecution under the National Firearms Act, 26 U.S.C. § 5801 et seq., since the transferee of a firearm who attempts to comply with the Act no longer faces the risk of self-incrimination, the transferee does not need immunity, whether "use" or "transactional". United States v. Smith, 341 F. Supp. 687 (N.D. Ga. 1972).
- The assertion of the privilege under U.S. Const., amend. 5 is a complete defense to a prosecution based on non-compliance with the Federal Marihuana Tax Act, 26 U.S.C. § 4741 et seq. United States v. Davis, 330 F. Supp. 899 (N.D. Ga. 1971).
- This amendment's privilege against self-incrimination provides a complete defense to prosecution under the federal wagering tax statutes. Lawson v. United States, 397 F. Supp. 370 (N.D. Ga. 1975).
Information concerning the nature of one's business may be privileged under U.S. Const., amend. 5. In re Agan, 498 F. Supp. 493 (N.D. Ga. 1980).
- Rights under U.S. Const., amend. 5 in business records should be asserted by refusal to deliver the records rather than by subsequently revoking that delivery and demanding their return, for when a person has voluntarily submitted records in response to a summons, it is only reasonable to assume that the government would conclude its examination and copy such records prior to return, even after a demand, and that it should have a reasonable time to do so. Kelley v. Godbout, 379 F. Supp. 532 (N.D. Ga. 1974).
- See United States v. Vance, 730 F.2d 736 (11th Cir. 1984).
In a prosecution for willful failure to file income tax returns, by refusing to allow the defendant to submit any evidence to the jury of good faith as to the defendant's assertion on the defendant's tax forms of the privilege against self-incrimination, without first making a prima facie showing to the court, the trial court impermissibly invaded the province of the jury. United States v. Goetz, 746 F.2d 705 (11th Cir. 1984).
- A taxpayer failed to show that any potential incrimination would have occurred as the result of the enforcement of a summons by the IRS requiring the taxpayer to testify and to produce certain designated records; therefore, U.S. Const., amend. 5 did not bar the production of the requested records. United States v. Reis, 765 F.2d 1094 (11th Cir. 1985).
An IRS summons to a bank requiring the production of certain records relating to an individual taxpayer did not violate the taxpayer's privilege against self-incrimination, since U.S. Const., amend. 5 does not protect against the production of records belonging to third parties and the records were not being sought pursuant to a justice department criminal prosecution. United States v. Saunders, 621 F. Supp. 745 (N.D. Ga. 1985).
Domestic reporting requirements of the federal Bank Secrecy Act, which requires certain financial institutions to file currency transaction reports, were not unconstitutional as applied to defendants charged with a money laundering scheme, as these requirements are not directed at any inherently suspect group, nor is there a direct nexus between the required disclosure and any potential criminal activity. United States v. Sanchez Vazquez, 585 F. Supp. 990 (N.D. Ga. 1984).
- Where interrogatories in fieri facias do not constitute or evidence extensive questioning as to the judgment debtor's financial affairs which would tend, as a matter of law, to incriminate the debtor, work a forfeiture of the debtor's estate, or bring disgrace or infamy upon the debtor or the debtor's family, but are clearly within the ambit of O.C.G.A. § 9-11-69, the burden is on the debtor to state the general reason for the debtor's refusal to answer and to specifically establish that a real danger of incrimination exists with respect to each question. Petty v. Chrysler Credit Corp., 169 Ga. App. 418, 312 S.E.2d 874 (1984).
- Privilege against self-incrimination can be voluntarily waived by a property settlement agreement as to future income tax returns and financial information covering future financial events unknown at the time of entering into the contract. Feig v. Feig, 246 Ga. 763, 272 S.E.2d 723 (1980).
- If a person represented by counsel enters into a property settlement agreement that has the necessary effect of waiving a constitutional right, express notice of or reference to such waiver is not required. Feig v. Feig, 246 Ga. 763, 272 S.E.2d 723 (1980).
- Evidence of flight, including defendant's failure to show up at time of trial, and evidence that accused attempted to escape during trial is admissible as tending to establish guilt of an accused and is not violative of defendant's right against self-incrimination. Carruth v. State, 155 Ga. App. 666, 272 S.E.2d 531 (1980).
- Electronic surveillance of a suspect who is not in custody does not violate right under U.S. Const., amend. 5 not to be compelled in any criminal case to be a witness against oneself. Granese v. State, 232 Ga. 193, 206 S.E.2d 26 (1974).
Electronic interceptions of the defendant speaking to self in the defendant's cell in the penitentiary did not violate the defendant's Fifth Amendment rights against self-incrimination and the defendant's due process rights. United States v. Moody, 977 F.2d 1425 (11th Cir. 1992), cert. denied, 507 U.S. 1052, 113 S. Ct. 1948, 123 L. Ed. 2d 653 (1993).
- If a search and arrest are illegal, then admissions made during the illegal detention are tainted and therefore inadmissible. Hill v. State, 140 Ga. App. 121, 230 S.E.2d 336 (1976).
- In the absence of a contrary showing by the state, a defendant's testimony in a case after the admission into evidence of illegally seized evidence is unconstitutionally impelled by that erroneous admission. Hill v. State, 140 Ga. App. 121, 230 S.E.2d 336 (1976).
- No violation of the privilege against self-incrimination occurred where the accused was compelled to undergo a psychiatric evaluation to be used by the state after the accused made it clear the accused was going to raise the defense of insanity and requested that the state pay for the accused to be examined by a psychiatrist. Godfrey v. Francis, 613 F. Supp. 747 (N.D. Ga. 1985), aff'd, 836 F.2d 1557 (11th Cir.), cert. dismissed, 487 U.S. 1264, 109 S. Ct. 27, 101 L. Ed. 2d 977 (1988).
Defendant's suppression motion was properly denied as to the defendant's psychiatric examination by a state's expert as the defendant's counsel knew of the time, place, scope, and nature of the examination, but chose not to attend; the examination did not violate the defendant's fifth or sixth amendment rights. Durham v. State, 281 Ga. 208, 636 S.E.2d 513 (2006).
- When a defendant testifies in support of a motion to suppress evidence pursuant to U.S. Const., amend. 4, the defendant's testimony may not thereafter be admitted against the defendant's at trial on the issue of guilt, unless the defendant makes no objection. Culpepper v. State, 132 Ga. App. 733, 209 S.E.2d 18 (1974).
- The trial court did not err in admitting the written statement of the defendant into evidence, because the defendant voluntarily went to the police station and told an officer that the defendant wanted to talk about the charges against the defendant. After the officer advised the defendant of the defendant's rights, the defendant indicated that the defendant understood the defendant's rights by signing a waiver of rights form. McDaniel v. State, 204 Ga. App. 753, 420 S.E.2d 636 (1992).
Trial court did not err in admitting defendant's statement that if the police would let defendant walk away, defendant would identify a major drug dealer, as there was no evidence that defendant was coerced or threatened by the police, or that defendant did not understand defendant's Miranda rights; thus, the trial court was authorized to find that the statement was freely and voluntarily given. Johnson v. State, 267 Ga. App. 549, 600 S.E.2d 667 (2004).
Trial court properly denied suppression of statements that defendant made to police officers while defendant was getting treated in the hospital for injuries sustained after committing criminal acts with a codefendant in two home invasions, as the first statement that defendant gave to a police officer occurred when defendant was not in custody and the officer was unaware that defendant was involved in any criminal incidents; when the second officer questioned defendant, defendant was already handcuffed to the hospital gurney, such that defendant should have been given Miranda warnings, but as the statement given to that officer was repetitive of the one given to the first officer, the error was deemed harmless. Moyer v. State, 275 Ga. App. 366, 620 S.E.2d 837 (2005), overruled on other grounds, Vergara v. State, 283 Ga. 175, 657 S.E.2d 863 (2008).
Defendant's motion to suppress two statements the defendant made to the police were properly denied as the defendant was not in custody when the defendant made the statements; the defendant's motion to suppress a third statement was properly denied as the defendant was read the defendant's Miranda rights before the defendant made the statement. Durham v. State, 281 Ga. 208, 636 S.E.2d 513 (2006).
In a prosecution for felony murder, armed robbery, and burglary, a defendant's post-Miranda statements were properly admitted at trial as a detective's telling the defendant that the detective knew that the defendant was not the shooter did not constitute the hope of a lighter sentence that tainted the voluntariness of the defendant's statements. Jackson v. State, 284 Ga. 484, 668 S.E.2d 700 (2008).
- It is error for a trial court to admit in evidence on the issue of guilt incriminating statements given by a defendant in support of an unsuccessful pretrial motion to suppress; such a practice would require a defendant to surrender the defendant's U.S. Const., amend. 4 right against unreasonable search and seizure in order to maintain the defendant's right under U.S. Const., amend. 5 to remain silent. Sharp v. United States, 410 F.2d 969 (5th Cir. 1969).
- Federal court interpretations of the privilege against self-incrimination have generally allowed dismissal of a plaintiff's action as a sanction against the plaintiff who is avoiding discovery via the self-incrimination privilege. Master v. Savannah Sur. Assocs., 148 Ga. App. 678, 252 S.E.2d 186 (1979).
- A trial judge's imposition of the maximum sentence possible upon a defendant as a result of the defendant's failure to answer the judge's questions concerning an unrelated offense imposes an unconstitutional condition on the defendant's privilege against self-incrimination and violates U.S. Const., amend. 5. Bertrand v. United States, 467 F.2d 901 (5th Cir. 1972).
- It is proper for the court to give a charge on the defendant's failure to testify without a request and it is not reversible error to fail to give the charge if the defendant does not request it. Stapleton v. State, 235 Ga. 513, 220 S.E.2d 269 (1975).
In the absence of a timely written request, the trial court does not err in failing to charge the jury that the defendant has a constitutional right not to testify and that no inference could be made as a result of the defendant's failure to testify on the defendant's own behalf. Stephens v. State, 157 Ga. App. 414, 278 S.E.2d 70 (1981).
- Instructing the jury that "witnesses are presumed to speak the truth unless they are impeached in some manner as provided by law" does not violate the Fifth Amendment privilege against self-incrimination. Head v. State, 191 Ga. App. 262, 381 S.E.2d 519, cert. denied, 191 Ga. App. 922, 381 S.E.2d 519 (1989).
- An instruction stating that guilt of the defendant can be inferred from possession of recently stolen property unaccounted for by the defendant cannot properly be construed as a comment on the defendant's failure to testify. Horton v. State, 228 Ga. 690, 187 S.E.2d 677 (1972).
- If a party asserts the privilege against self-incrimination concerning matters sought to be discovered, that party must respond to each question asked, asserting the privilege to those questions that party deems necessary. Axson v. National Sur. Corp., 254 Ga. 248, 327 S.E.2d 732 (1985).
- A French citizen, who sued American citizens for fraud in connection with the sale of Georgia land to the French citizen, could invoke the Fifth Amendment privilege against self-incrimination on the ground that the answers to certain questions posed on deposition might incriminate the French citizen of violations under the criminal law of France. Yves Farms, Inc. v. Rickett, 659 F. Supp. 932 (M.D. Ga. 1987).
- The privilege against self-incrimination simply protects any disclosures that the witness may reasonably apprehend could be used in a criminal prosecution or that could lead to other evidence that might be so used, and testimony concerning an alien detainee's criminal behavior in the alien's country is not privileged, since such acts could not form the basis for any criminal prosecution in the United States. Fernandez-Roque v. Smith, 567 F. Supp. 1115 (N.D. Ga. 1983), rev'd on other grounds, 734 F.2d 576 (11th Cir. 1984).
Statements attributable to a coconspirator who refuses to testify are properly admitted as declarations of the other coconspirator during the course of the conspiracy. Owens v. State, 251 Ga. 313, 305 S.E.2d 102 (1983).
Right of a witness in a criminal case to invoke the fifth amendment is not unqualified. Jones v. State, 162 Ga. App. 502, 291 S.E.2d 103 (1982).
Grand jury witness' refusal to answer questions on Fifth Amendment grounds did not warrant contempt sanctions because there was no court order that the witness answer the questions before the grand jury, nor was the witness in anywise granted immunity. Baker v. State, 162 Ga. App. 606, 292 S.E.2d 451 (1982).
Law firm complying with grand jury subpoenas and directing it to produce records reflecting, inter alia, its clients' financial status, business activities, payment of taxes, and involvement in litigation, did not implicate its clients in any compelled testimonial self-incrimination. In re Grand Jury Subpoena Duces Tecum, 754 F.2d 918 (11th Cir. 1985).
Gun obtained by police after the police denied the defendant's request for an attorney in an interview in which the defendant told the police the murder was committed by the defendant using the defendant's parent's gun was the fruit of a voluntary statement and was not subject to the exclusionary rule. Taylor v. State, 274 Ga. 269, 553 S.E.2d 598 (2001).
- A motorist detained pursuant to a traffic stop is not taken into custody for the purpose of the Miranda warning. Hudgins v. State, 176 Ga. App. 719, 337 S.E.2d 378 (1985).
- Because the defendant in a prosecution for driving under the influence was not in custody, there was no requirement that a request that the defendant undergo an alcohol screening test be preceded by Miranda warnings, and evidence of the defendant's refusal to undergo the test was not inadmissible as violative of the defendant's constitutional right to remain silent. Keenan v. State, 263 Ga. 569, 436 S.E.2d 475 (1993); Bravo v. State, 249 Ga. App. 433, 548 S.E.2d 129 (2001).
- The alphabet test and the physical dexterity tests for determining sobriety are not inadmissible under the Fifth Amendment of the United States Constitution because they were not evidence of a testimonial or communicative nature. Lankford v. State, 204 Ga. App. 405, 419 S.E.2d 498 (1992), cert. denied, 506 U.S. 1051, 113 S. Ct. 972, 122 L. Ed. 2d 127 (1993); State v. Sumlin, 224 Ga. App. 205, 480 S.E.2d 260 (1997).
Upon seeing the car in distress in a through-lane of traffic, police officer was authorized to approach the car and make inquiry and, when the defendant admitted to have been drinking and driving, the officer was authorized to conduct the field sobriety tests without giving Miranda warnings. Coates v. State, 216 Ga. App. 93, 453 S.E.2d 35 (1994).
Field sobriety tests are not inadmissible under the Fifth Amendment because they are not evidence of a testimonial or communicative character. Coates v. State, 216 Ga. App. 93, 453 S.E.2d 35 (1994).
Where defendant was not placed under arrest during an investigatory stop, Miranda warnings were not required to be given before field sobriety tests were conducted. State v. Kirbabas, 232 Ga. App. 474, 502 S.E.2d 314 (1998).
Defendant whose license was taken and who was placed temporarily in a patrol car for the defendant's own safety was not in custody and, therefore, evidence of the defendant's statements was admissible, as was evidence of the defendant's refusals to submit to alco-sensor and HGN tests and of the defendant's failure of other tests administered before the defendant's arrest. Turner v. State, 233 Ga. App. 413, 504 S.E.2d 229 (1998).
Driver could not assert right against self-incrimination to suppress results of field sobriety test, since the driver was not a person "charged in a criminal proceeding" at the time the test was given, the driver was not in police custody at that time, and no force or threat of penalty was used against the driver. Montgomery v. State, 174 Ga. App. 95, 329 S.E.2d 166 (1985).
- The choice under O.C.G.A. §§ 40-5-55 and40-6-392, either to agree or refuse to take a blood-alcohol test, is not protected by the privilege against self-incrimination. Neither is the form signed by the defendant, agreeing to take a breath test. A police officer is not required to inform defendant of the defendant's Miranda rights. State v. Mack, 207 Ga. App. 287, 427 S.E.2d 615 (1993).
Fact that defendant was not advised of defendant's Miranda rights before field sobriety tests were conducted did not violate the Fifth Amendment; such tests were not evidence of a testimonial or communicative nature and therefore, they did not constitute "statements" subject to the Fifth Amendment protections embodied in Miranda. Disharoon v. State, 263 Ga. App. 787, 589 S.E.2d 339 (2003).
Because the defendant was informed of the Miranda rights in a timely manner and the procedure employed to gain defendant's consent was fair and reasonable, the trial court erred in suppressing the results of the state-administered breath test. State v. Allen, 272 Ga. App. 169, 612 S.E.2d 11 (2005).
- When the defendant asserted a possessory interest in a suitcase, the ownership of the suitcase was not a collateral matter and was a proper subject of cross-examination but, once the defendant claimed the privilege against self-incrimination, it was proper to strike the testimony concerning the case. Rasnake v. State, 164 Ga. App. 765, 298 S.E.2d 42 (1982), cert. denied, 462 U.S. 1132, 103 S. Ct. 3114, 77 L. Ed. 2d 1368 (1983).
Where nonimmunized witnesses are involved, such witnesses are allowed to consult with their attorneys during the course of the questioning to determine whether or not they should invoke their privilege based on U.S. Const., amend. 5 against self-incrimination. In re Earnest, 90 F.R.D. 698 (M.D. Ga. 1981).
- Admission of a mentally retarded murder defendant's confession of guilt was harmless error at the defendant's trial but not at the defendant's sentencing, where the confession may have played some part in the jury's decision to sentence the defendant to death rather than to life imprisonment. Smith v. Kemp, 664 F. Supp. 500 (M.D. Ga. 1987), appeal dismissed, 849 F.2d 481 (11th Cir. 1988), aff'd, 887 F.2d 1407 (11th Cir. 1989).
- Because a codefendant was informed of the codefendant's constitutional rights under the Fifth Amendment and was willing to testify, but was prevented from testifying by the trial court, this was harmful error requiring reversal of a finding of delinquency. In re J.L.B., 184 Ga. App. 243, 361 S.E.2d 236 (1987).
- Even if defendant's initial statement to police was erroneously admitted, the error was harmless because the statement given was exculpatory rather than incriminating, and it was followed by a statement which was much stronger and tended to be inculpatory, thereby, if valid, vitiating any possible damage accruing from the admission of the first statement. Caplinger v. State, 185 Ga. App. 476, 364 S.E.2d 610 (1988).
- It was unnecessary to determine whether there was a Miranda defect, because the defendant's statement was not inculpatory, since all it could stand for is that the defendant knew the location of a rifle, which was not inconsistent with the defendant's defense of "defense of self and home", so that any error in admitting the defendant's statement was harmless. Delay v. State, 258 Ga. 229, 367 S.E.2d 806, cert. denied, 488 U.S. 850, 109 S. Ct. 132, 102 L. Ed. 2d 105 (1988).
- The Fifth Amendment privilege against self-incrim- ination did not excuse an insured from fulfilling the insured's contractual obligation under a homeowner's insurance policy to submit to an examination under oath as a condition precedent to suit. Pervis v. State Farm Fire & Cas. Co., 901 F.2d 944 (11th Cir.), cert. denied, 498 U.S. 899, 111 S. Ct. 255, 112 L. Ed. 2d 213 (1990).
Trial court's instruction on flight of the accused was neither burden shifting nor violative of defendant's right to remain silent. Sweet v. State, 196 Ga. App. 451, 396 S.E.2d 82 (1990).
- Trial defense counsel's request that trial court lay defendant's rights on the record precluded defendant from seeking a mistrial after the request was granted. Brundage v. State, 208 Ga. App. 58, 430 S.E.2d 173 (1993).
- Trial court did not abuse its discretion in denying defendant's motion for a mistrial due to a fire investigator's comments on defendant's exercise of defendant's right to remain silent as the motion was initially made before any such testimony was given, and, while in the second instance the investigator did improperly comment on the exercise of defendant's right, the trial court properly gave the jurors a curative instruction and specifically asked them whether they could disregard the testimony. George v. State, 263 Ga. App. 541, 588 S.E.2d 312 (2003).
- Because the testimony of a cameraman established that a videotape was a fair and accurate portrayal of defendant's arrest, and there was no chain of custody requirement for the admission of videotapes, defendant's custodial statements to police in Florida were properly admitted at defendant's trial in Georgia; it was not necessary for a valid waiver of the Fifth Amendment privilege that defendant knew and understood every consequence of the waiver. Smith v. State, 279 Ga. 48, 610 S.E.2d 26 (2005).
- Patrol officer's question-first, warn-later tactic of interrogating a burglary suspect rendered both statements given to the patrol officer and statements later given to an investigator after Miranda warnings inadmissible. The defendant was not advised that the defendant's earlier statement to the patrol officer could not be used. State v. Kendrick, 309 Ga. App. 870, 711 S.E.2d 420 (2011), overruled on other grounds by State v. Abbott, No. S17A1583, 2018 Ga. LEXIS 173 (Ga. Mar. 15, 2018).
- Admission of defendant's statement to a police officer concerning an attempted burglary was proper under the Fifth Amendment as defendant had only invoked defendant's right to counsel under the sixth amendment in connection with unrelated charges in Fulton County; defendant never invoked defendant's Fifth Amendment right for counsel to be present during questioning in connection with the attempted burglary in Henry County. Smith v. State, 273 Ga. App. 107, 614 S.E.2d 219 (2005).
- The term "interrogation" under Miranda refers not only to express questioning, but also to any words or actions on the part of the police, other than those normally attendant to arrest and custody, that the police should know are reasonably likely to elicit an incriminating response from the suspect. The latter portion of this definition focuses primarily upon the perceptions of the suspect, rather than the intent of the police. Murray v. State, 155 Ga. App. 816, 273 S.E.2d 219 (1980); United States v. Bennett, 626 F.2d 1309 (5th Cir. 1980), cert. denied, 449 U.S. 1092, 101 S. Ct. 888, 66 L. Ed. 2d 821 (1981).
Defendant's suppression motion was properly denied as to the statements given to the police before the defendant was given the defendant's Miranda warnings as, although the defendant was in custody as the defendant was approached at gunpoint, handcuffed, and placed on the ground while guarded by three police officers even before the defendant was advised that he was under arrest, the defendant was not subjected to interrogation as the officers asked the defendant's father, not the defendant, about the missing truck, and their questions to the father were not reasonably likely to elicit any response from the defendant. Waters v. State, 281 Ga. 119, 636 S.E.2d 538 (2006).
- By custodial interrogation is meant the questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of freedom of action in any significant way. Chester v. State, 157 Ga. App. 191, 276 S.E.2d 684 (1981).
The custodial interrogation that requires investigating officers to advise the person interrogated of constitutional rights to counsel and against self-incrimination is that interrogation that occurs after the investigation has focused on an accused. Boutwell v. State, 256 Ga. 63, 344 S.E.2d 222 (1986).
Even a clear statement from an officer that the person under interrogation is a prime suspect is not, in itself, dispositive of the custody issue for purposes of giving constitutionally required custodial warnings, for some suspects are free to come and go until the police decide to make an arrest. McAllister v. State, 270 Ga. 224, 507 S.E.2d 448 (1998).
Trial court erred in suppressing a defendant's pre-Miranda statements based on the court's findings that police had probable cause to arrest and that the defendant was the focus of the investigation as these considerations were irrelevant for determining whether the defendant was "in custody" for Miranda purposes. The proper inquiry was how a reasonable person in the defendant's position would have perceived the situation. State v. Folsom, 285 Ga. 11, 673 S.E.2d 210 (2009).
- One who is under investigative detention or is the subject of a general on-the-scene investigation is not in "custody" within the meaning of Miranda. Bailey v. State, 153 Ga. App. 178, 264 S.E.2d 710 (1980).
- Defendant was not subjected to improper custodial interrogation where the officer read to defendant the implied consent warnings for suspects over 21, and placed defendant in the back of the officer's patrol car, during an impound search of defendant's car, the officer found an identification card that showed that defendant was under 21, the officer asked defendant the defendant's age, and learned that defendant was under 21, the officer read defendant the implied consent notice for suspects under 21, and the question was not designed to incriminate defendant, as the officer was arresting defendant for driving under the influence (less safe driver), and defendant's age was not an element of the offense. Evans v. State, 267 Ga. App. 706, 600 S.E.2d 671 (2004).
The trial court did not err in admitting the defendant's statements made at a hospital to a sheriff's deputy and an investigator, as the statements were given while the defendant was in a medical, rather than an investigative, setting; moreover, the fact that the officers might have suspected the defendant of having committed a murder did not render the statements at issue violative of Miranda, and thus subject to suppression. Jennings v. State, 282 Ga. 679, 653 S.E.2d 17 (2007).
Detective's inquiry into whether codefendant was okay, made while they were in the bathroom, did not constitute interrogation under Miranda. Smith v. State, 269 Ga. App. 133, 603 S.E.2d 445 (2004).
- Asking the defendant in custody how the defendant injured the defendant's arm did not fall under the exception to Miranda for "routine booking questions." Franks v. State, 268 Ga. 238, 486 S.E.2d 594 (1997).
- With regard to a defendant's convictions for improper lane change, serious injury by vehicle while driving under the influence, and misdemeanor obstruction of an officer, the defendant obtained a reversal of the convictions based on the trial judge violating the defendant's right to be present at all stages of the proceeding by communicating with the jury inappropriately; however, for retrial purposes, it was also determined that, given the totality of the circumstances, the defendant was subjected to an "interrogation" in violation of the privilege against self-incrimination as a result of an intake officer asking the defendant how the defendant came to be at the police station. Accordingly, the response to the question was inadmissible for any purpose other than impeachment. Wells v. State, 297 Ga. App. 153, 676 S.E.2d 821 (2009).
- Trial court did not err in admitting redacted videotape of two custodial interrogations into evidence, as statements on the tape about uncharged burglaries was admissible as a circumstance of defendant's arrest and statements about defendant's criminal record were voluntarily given. Oliver v. State, 276 Ga. 665, 581 S.E.2d 538 (2003).
Miranda played no part in the admissibility of field sobriety test results, notwithstanding the definition of arrest contained in O.C.G.A. § 17-4-1, as defendant was not under arrest for constitutional purposes where defendant failed to show any restraints comparable to those associated with formal arrest, defendant's statement that defendant knew the officer was going to "take her in" demonstrated defendant's apprehension, not the fact of an arrest, defendant was not informed that defendant's detention would not be temporary, and defendant's performance on the field sobriety tests did not support a claim that defendant was exposed to custodial interrogation at the scene. Evans v. State, 267 Ga. App. 706, 600 S.E.2d 671 (2004).
- When, after defendant was arrested, defendant was asked about defendant's employment, in the course of completing biographical information about defendant, defendant's response, before defendant was warned of defendant's Miranda rights, was admissible, because, while the question was not asked as part of a formal booking, it was part of an administrative processing which was not intended to elicit an incriminating response. English v. State, 260 Ga. App. 620, 580 S.E.2d 351 (2003).
- There are several criteria for determining when custodial restraint is present: the subjective intent of the police; the subjective belief of the defendant; whether probable cause for arrest existed at the time of the interrogation; and whether the defendant was the focus of the investigation. These criteria are, of course, intended to facilitate rather than replace case-by-case analysis. Alderman v. Austin, 498 F. Supp. 1134 (S.D. Ga. 1980), aff'd in part, rev'd in part on other grounds, 663 F.2d 558 (5th Cir. 1981), on rehearing, 695 F.2d 124 (5th Cir. 1983).
- Interview by a Child Protective Services Investigator and a detective from the sheriff's department at defendant's home was not a custodial situation such as would invoke the Miranda protections. Carroll v. State, 208 Ga. App. 316, 430 S.E.2d 649 (1993).
Single threshold inquiry of an officer as to what is happening is not an impermissible interrogation. Shy v. State, 234 Ga. 816, 218 S.E.2d 599 (1975), overruled on other grounds, State v. Folsom, 285 Ga. 11, 673 S.E.2d 210 (2009).
While recognizing that Miranda warnings are not limited to station-house interrogations as long as there is some significant deprivation of an individual's freedom of action, a police officer may make a threshold inquiry to ascertain if there were any current danger to the officer or to others present at the scene. So long as the interrogation is not aimed at obtaining information to establish a suspect's guilt but is instead aimed at determining the nature of the situation upon the arrival of the officer on the scene, some initial inquiry may, under the circumstances, be permissible before Miranda warnings are given. Aldridge v. State, 247 Ga. 142, 274 S.E.2d 525 (1981).
Upon arrival at scene of suspected crime, and without first administering Miranda warnings, police officers may make initial inquiry solely for purpose of ascertaining whether or not there currently is any danger to them or to other persons who are present at the scene. Such questioning must not be "aimed at obtaining information to establish a suspect's guilt." State v. Overby, 249 Ga. 341, 290 S.E.2d 464 (1982).
- The test for determining whether a person is in custody at a traffic stop is if a reasonable person in the suspect's position would have thought the detention would not be temporary; police officers at the scene of a traffic stop may conduct a general on-the-scene investigation, which may even require that persons be temporarily detained, without such being classified as custodial interrogation. Carroll v. State, 203 Ga. App. 22, 416 S.E.2d 354 (1992).
- A noncustodial, voluntary statement by the defendant to an officer simply making an on-the-scene investigation to find out what has happened, when the officer has no suspects, is always admissible against the maker without the defendant's having been advised of the rights against self-incrimination. Davis v. State, 135 Ga. App. 584, 218 S.E.2d 297 (1975); Brown v. State, 140 Ga. App. 160, 230 S.E.2d 128 (1976), cert. denied, 434 U.S. 819, 98 S. Ct. 58, 54 L. Ed. 2d 75 (1977).
- Investigation by police officers at the scene on their arrival, and the defendant's statements to them, not being tainted by the overtones of coercion incident to prolonged illegal detention, are not objectionable because defendant did not at that time have counsel. Dukes v. State, 109 Ga. App. 825, 137 S.E.2d 532 (1964).
- Same principles governing initial on-the-scene inquiries when crime scene is "on the streets" apply also when scene of crime is "behind bars" in a penal institution, jail or other custodial institution. State v. Overby, 249 Ga. 341, 290 S.E.2d 464 (1982).
- When a violator is placed in custody or under arrest at a traffic stop the protection of Miranda arises; however, roadside questioning at a routine stop does not constitute such a custodial situation. Lebrun v. State, 255 Ga. 406, 339 S.E.2d 227 (1986); Brown v. State, 223 Ga. App. 364, 477 S.E.2d 623 (1996).
- If a defendant is under arrest, a Miranda warning must be given regardless of whether the questioning occurs in the context of a routine investigation of a traffic incident. State v. O'Donnell, 225 Ga. App. 502, 484 S.E.2d 313 (1997).
- The trial court's determination that the defendant was not in custody prior to the time of the officers' decision to arrest the defendant was not clearly erroneous and would not be disturbed on appeal because there was no evidence that the officer indicated to the defendant in any manner that the defendant was not free to leave or that the stop would be anything other than temporary. Carroll v. State, 203 Ga. App. 22, 416 S.E.2d 354 (1992).
- Because, although all the witnesses had been requested not to leave while the sheriff was attempting to secure the crime scene, no one had been placed under arrest, and no one had been given any Miranda warnings, the defendant was not in custody nor was the defendant otherwise deprived of freedom of action in any significant way. Thus, the trial court did not err in allowing the defendant's response to a person from the sheriff's office into evidence. Parker v. State, 256 Ga. 363, 349 S.E.2d 379 (1986).
Supposed "victim" of robbery was not "in custody" until suspicion began to focus on the "victim" shortly after the "victim" implicated self with contradictory statements, at which time Miranda rights were given. United States v. Roark, 753 F.2d 991 (11th Cir. 1985).
Suspect in custody was required to be warned of rights prior to interrogation even though the interrogation involved an offense other than that for which the suspect was in custody. State v. Rogers, 173 Ga. App. 653, 327 S.E.2d 782 (1985).
- Even assuming that a juvenile suspect was illegally detained by juvenile authorities, the suspect's confession was admissible because proper safeguards (Miranda warnings, presence of parent) were present and because there was no evidence of intimidation or of purposeful and flagrant misconduct on the part of the juvenile authorities. Houser v. State, 173 Ga. App. 378, 326 S.E.2d 513 (1985).
- None of the statements made by the defendant to the police officers who searched the defendant's apartment were made in the context of a "custodial interrogation," in that the officers did not have probable cause nor the subjective intent to arrest the defendant, and there was no evidence that the defendant believed the defendant to be in custody or that the defendant did not feel free to leave rather than answer the questions the defendant was asked. Therefore, the statements were not required to be suppressed. United States v. Burke, 613 F. Supp. 576 (N.D. Ga. 1985), rev'd on other grounds, 784 F.2d 1090 (11th Cir.), cert. denied, 476 U.S. 1174, 106 S. Ct. 2901, 90 L. Ed. 2d 987 (1986).
When a defendant went to a police station to discuss the theft of tire rims from the defendant's vehicle, and later was confronted with questioning about the killing of the person who stole the rims, it was error to suppress the statements the defendant made before the defendant was confronted about the killing. The defendant was not in custody before being confronted with the killing. State v. Pye, 282 Ga. 796, 653 S.E.2d 450 (2007), overruled on other grounds by State v. Abbott, No. S17A1583, 2018 Ga. LEXIS 173 (Ga. 2018).
Because a defendant had come voluntarily to a police station for an interview and was not prevented from leaving or terminating the interview, the defendant was not in custody; thus, there was no violation of the defendant's Fifth Amendment right to counsel under the United States Supreme Court's decision in Edwards v. Arizona, 451 U.S. 477, 101 S. Ct. 1880, 68 L. Ed. 2d 378 (1981), which applied only to custodial interrogation. Petty v. State, 283 Ga. 268, 658 S.E.2d 599 (2008).
Where the defendant, who was not in custody at the time, volunteered an explanation as to why the defendant possessed a weapon without authority, no Miranda warning was necessary and the evidence was sufficient to show that the defendant shot self in a government building with a weapon that the defendant took from police custody, in violation of O.C.G.A. §§ 16-8-2 and16-7-24(a); therefore, the trial court's findings were not clearly erroneous. McClendon v. State, 264 Ga. App. 174, 590 S.E.2d 189 (2003).
As the defendants voluntarily went to the police station, were not under formal arrest at any time during their interviews, and were told before the interview that the defendants were free to leave, a reasonable person in the defendants' situation would not have felt so restrained as to equate to a formal arrest. Therefore, Miranda warnings were not required. Carter v. State, 285 Ga. 394, 677 S.E.2d 71 (2009).
- Where there was a 21-month break in custody between the initial interrogation of the defendant, at which time the defendant expressed the defendant's desire to speak only through counsel, and the final interrogation, at which time the defendant confessed, there was no violation of the defendant's fifth and fourteenth amendment rights. State v. Bymes, 258 Ga. 813, 375 S.E.2d 41 (1989).
Because of the absence or dissipation of coercion once a suspect is released from custody, subsequent confessions obtained from even police initiated interrogation are admissible without violating the suspect's Fifth Amendment rights if there has been an intervening break in custody. Wilson v. State, 264 Ga. 287, 444 S.E.2d 306, cert. denied, 513 U.S. 988, 115 S. Ct. 486, 130 L. Ed. 2d 398 (1994).
- For a statement to be voluntary, arresting authorities are not required to advise the suspect that the suspect may stop the questioning at any time. Thomas v. State, 158 Ga. App. 668, 281 S.E.2d 646 (1981).
- A police officer in the course of investigating unusual behavior can make reasonable inquiries to dispel the officer's reasonable fears for the officer's safety and that of others. Shy v. State, 234 Ga. 816, 218 S.E.2d 599 (1975), overruled on other grounds, State v. Folsom, 285 Ga. 11, 673 S.E.2d 210 (2009).
Miranda warnings contemplate an interrogation after the suspect is in custody and do not apply where investigation has not focused on suspect and where no incriminating statements have been made. Smith v. State, 236 Ga. 12, 222 S.E.2d 308, cert. denied, 428 U.S. 910, 96 S. Ct. 3224, 49 L. Ed. 2d 1219 (1976).
- If the focus of investigation is upon the defendant, but the defendant is not in custody, the defendant's volunteered response is admissible in evidence. Chester v. State, 157 Ga. App. 191, 276 S.E.2d 684 (1981).
- Where agents somewhat prolong a booking procedure, asking for more information than is strictly necessary, and deliberately create a relaxed atmosphere in the hope that defendant might let something slip, this is not such an overbearing custodial interrogation as to deprive the defendant of free choice in making a statement. Jenkins v. State, 123 Ga. App. 822, 182 S.E.2d 542 (1971).
Police may not delay arrest of a suspect as a subterfuge to coerce the suspect into incriminating self. Shy v. State, 234 Ga. 816, 218 S.E.2d 599 (1975), overruled on other grounds, State v. Folsom, 285 Ga. 11, 673 S.E.2d 210 (2009).
- Where no statement obtained while in custody is offered into evidence, any error in the timely giving of Miranda rights is harmless. Sheffield v. State, 235 Ga. 507, 220 S.E.2d 265 (1975).
- Miranda does not require officers to advise the individual that the individual may withdraw the waiver of constitutional rights at any time during the interrogation. Katzensky v. State, 228 Ga. 6, 183 S.E.2d 749 (1971).
Miranda warnings in no way inform a person of the person's rights under U.S. Const., amend. 4, including the person's right to be released from unlawful custody following an arrest without a warrant or without probable cause. Hill v. State, 140 Ga. App. 121, 230 S.E.2d 336 (1976).
Statement may be inadmissible under U.S. Const., amend. 4, even if voluntary under U.S. Const., amend. 5. - Even though proper Miranda warnings may have been given prior to a defendant's incriminatory statement and even though the statement may have been voluntary for purposes of U.S. Const., amend. 5, the statement is nonetheless inadmissible under the U.S. Const., amend. 4, if it is the product of an illegal seizure. Dupree v. State, 247 Ga. 470, 277 S.E.2d 18 (1981).
There is no per se rule that Miranda warnings in and of themselves suffice to cure a fourth amendment violation involved in obtaining inculpatory statements during custodial interrogation following a formal arrest on less than probable cause. In order to use such statements, the prosecution must show not only that the statements meet Fifth Amendment requirements (voluntariness), but also that the causal connection between the statements and the illegal arrest is sufficiently attenuated so as to purge the primary taint of the illegal arrest in light of the distinct policies and interests of the fourth amendment. Robinson v. State, 166 Ga. App. 741, 305 S.E.2d 381 (1983).
- In subsequent interrogations of a defendant, it is not necessary that the full Miranda warning be given again. Rather, it is sufficient if the first complete warning thereafter is reinforced by the authorities prior to each subsequent interrogation by reminding the defendant that the defendant previously was advised of the defendant's rights. Anglin v. State, 244 Ga. 1, 257 S.E.2d 513 (1979); Bragg v. State, 162 Ga. App. 264, 291 S.E.2d 112 (1982).
Because the defendant gave three statements on the day in question and the investigating officer fully informed the defendant of the defendant's Miranda rights (including the right to have an attorney appointed if the defendant so desired) prior to the giving of the first statement, in view of the continuing nature of the interrogation of the defendant (and the relatively short time span between the giving of the first Miranda warnings and the third statement), it was not necessary for the investigating officer to inform the defendant again that an attorney would be appointed to represent the defendant if the defendant was indigent and the defendant so desired. Akers v. State, 179 Ga. App. 529, 346 S.E.2d 861 (1986).
It was not error to admit a defendant's statements to an expert appointed pursuant to O.C.G.A. § 17-7-130.1 to examine the defendant upon the defendant's assertion of an insanity defense because: (1) the state had a statutory right, under O.C.G.A. § 17-7-130.1, to call the expert to rebut the testimony of the defendant's expert regarding the defendant's mental state at the time of the crimes charged; (2) the defendant had no Sixth Amendment right to counsel during the expert's examination or Fifth Amendment right requiring the repetition of the defendant's Miranda rights during the interview with the appointed expert; and (3) the defendant's counsel was aware of the psychiatric interview and chose not to attend. Walker v. State, 290 Ga. 467, 722 S.E.2d 72 (2012).
- If a defendant is advised of the defendant's constitutional right prior to the defendant's first in-custody statement, further warning is not required prior to the taking of a second in-custody statement some seven hours later, if such questioning constitutes merely continued interrogation. Watson v. State, 227 Ga. 698, 182 S.E.2d 446 (1971).
Trial court did not clearly err in admitting defendant's custodial statement in redacted form because the court, after hearing the conflicting testimony, including testimony about defendant's intoxication, and after seeing the signed waiver of rights by defendant determined that defendant was properly advised of defendant's constitutional rights and that defendant's custodial statement met the criteria for admission. Wallace v. State, 267 Ga. App. 801, 600 S.E.2d 808 (2004).
Miranda is applicable to custodial interrogation and does not require that a defendant be given any warning at trial. Schiselman v. Trust Co. Bank, 246 Ga. 274, 271 S.E.2d 183 (1980).
Defendant's custodial statement was admissible as the defendant's statement was voluntarily given where an officer recited the defendant's Miranda rights to the defendant by memory one day and upon returning to the jail the next day to obtain the defendant's fingerprints, the defendant voluntarily began talking to the officer about the three woman whom the defendant was accused of raping and the officer then repeated from memory the defendant's Miranda rights, the defendant signed a waiver of the defendant's Miranda rights, and the defendant then gave a custodial statement. Collins v. State, 267 Ga. App. 784, 600 S.E.2d 802 (2004).
- Recordings of telephone conversations the defendant had with the defendant's mother while the defendant was in jail were properly admitted into evidence; the Miranda warnings against self-incrimination did not apply because there was no interrogation, and the defendant had no reasonable expectation of privacy in the calls under the Fourth Amendment. Preston v. State, 282 Ga. 210, 647 S.E.2d 260 (2007).
- If a defendant was properly advised and made aware of Miranda rights, the facts that thereafter while in custody the defendant knowingly and voluntarily elected to talk is no cause for complaint. Williams v. State, 155 Ga. App. 513, 271 S.E.2d 657 (1980).
- Police are not required to obtain from the accused a waiver of Miranda rights before beginning an interrogation; such a requirement is at odds with the principle that courts can infer a waiver of Miranda rights "from the actions and words of the person interrogated", and that any waiver, express or implied, may be contradicted at any time by an invocation of the rights to counsel and to remain silent. Hardman v. Shinseki, F.3d (6th Cir. June 1, 2010).
- Once Miranda warnings have been given, the subsequent procedure is clear. If the individual indicates in any manner, at any time prior to or during questioning, that the individual wishes to remain silent, the interrogation must cease. United States v. Morris, 491 F. Supp. 226 (S.D. Ga. 1980).
Accused's silence during an interrogation did not invoke the right to remain silent, because a suspect's Miranda right to counsel must be invoked "unambiguously", and the accused waived the right to remain silent when the accused knowingly and voluntarily made a statement to police. Once the state establishes that a Miranda warning was given and that it was understood by the accused, an uncoerced statement establishes an implied waiver, and the record clearly showed that the accused waived the right to remain silent: (1) the lack of any contention that the accused did not understand the rights indicates that the accused knew what was given up when the accused spoke; (2) the accused's answer to a question the interrogator asked about God was a "course of conduct indicating waiver" of the right to remain silent in that, had the accused wanted to remain silent, the accused could have said nothing in response or unambiguously invoked the accused's Miranda rights, thus ending the interrogation - that the accused made a statement nearly three hours after receiving a Miranda warning did not overcome the fact that the accused engaged in a course of conduct indicating waiver; and (3) there was no evidence that the statement was coerced, as the accused did not claim that police threatened or injured the accused or that the accused was fearful, the interrogation took place in a standard-sized room in the middle of the day, and there is no authority for the proposition that a three-hour interrogation is inherently coercive. Hardman v. Shinseki, F.3d (6th Cir. June 1, 2010).
Defendant's statement that "I can stop the interrogatory" was not an unequivocal invocation of the defendant's Fifth Amendment right to remain silent requiring that interrogation cease, but rather was an equivocal statement that did not require an officer to stop questioning the defendant. The rule in Davis v. United States, 512 U.S. 452, 114 S. Ct. 2350, 129 L. Ed. 2d 362 (1994), that, if a suspect's statement is not an unambiguous or unequivocal request for counsel, officers have no obligation to stop questioning the suspect, also applies to invocations of the Fifth Amendment right to remain silent. Perez v. State, 283 Ga. 196, 657 S.E.2d 846 (2008).
- Miranda safeguards are required not where a suspect is simply taken into custody, but rather where a suspect in custody is subjected to interrogation. Whether or not the accused was in custody or under interrogation is a question of fact to be resolved by the trial court. Brenneman v. State, 200 Ga. App. 111, 407 S.E.2d 93 (1991).
- Miranda warnings were not required for the admission of defendant's statement to a police sergeant as: (1) defendant was not under arrest at the time of the interview; (2) defendant was not prevented from leaving the interview; (3) defendant was not promised anything in return for a statement, nor threatened into making the statement; and (4) the sergeant acknowledged telling defense counsel that the sergeant was trying to gather enough evidence to put defendant in jail, but this did not make the statement inadmissible. Thomas v. State, 262 Ga. App. 492, 589 S.E.2d 243 (2003).
Interrogation must cease when an individual unequivocally asks for an attorney. Murray v. State, 155 Ga. App. 816, 273 S.E.2d 219 (1980); United States v. Webb, 633 F.2d 1140 (5th Cir. 1981); Blige v. State, 203 Ga. App. 151, 416 S.E.2d 160 (1992).
An accused in custody, having expressed the desire to deal with the police only through counsel, is not subject to further interrogation by the authorities until counsel has been made available to the accused, unless the accused initiates further communication, exchanges, or conversations with the police. Cervi v. Kemp, 855 F.2d 702 (11th Cir. 1988), cert. denied, 489 U.S. 1033, 109 S. Ct. 1172, 103 L. Ed. 2d 230 (1989); Allen v. State, 259 Ga. 63, 377 S.E.2d 150 (1989); Nobles v. State, 191 Ga. App. 594, 382 S.E.2d 637 (1989), cert. denied, 191 Ga. App. 923, 328 S.E.2d 637 (1989); overruled on other grounds, Petty v. State, 283 Ga. 268, 658 S.E.2d 599 (2008); Cansler v. State, 261 Ga. 693, 409 S.E.2d 504 (1991).
Defendant's statement to a police officer - "I'll talk to you after I've talked to my lawyer" - was a clear and unequivocal assertion of the defendant's right to counsel, requiring that all interrogation should immediately have ceased. Allen v. State, 259 Ga. 63, 377 S.E.2d 150 (1989).
Individual has the right to cease talking and to request the presence of an attorney at any time during interrogation. Katzensky v. State, 228 Ga. 6, 183 S.E.2d 749 (1971).
Defendant's demand for counsel does not bar voluntary statements if the defendant spontaneously incriminates self after questioning has ceased. United States v. Webb, 633 F.2d 1140 (5th Cir. 1981).
- Without an oral or written request the accused does not invoke a right to the presence of an attorney during custodial interrogation. Johnson v. State, 251 Ga. 62, 303 S.E.2d 7 (1983).
Defendant's statement to officers after the defendant was read the defendant's rights to "go ahead and run the lawyers" did not constitute an unambiguous or unequivocal request for counsel. Mincey v. Head, 206 F.3d 1106 (11th Cir. 2000), cert. denied, 532 U.S. 926, 121 S. Ct. 1369, 149 L. Ed. 2d 297 (2001).
Although a refusal to sign a waiver of rights form may indicate that the suspect is invoking the right to counsel, it is not conclusive proof that the suspect has invoked the right. Mincey v. Head, 206 F.3d 1106 (11th Cir. 2000), cert. denied, 532 U.S. 926, 121 S. Ct. 1369, 149 L. Ed. 2d 297 (2001).
Defendant's right to speak with an attorney was not violated and defendant's custodial interrogation was admissible into evidence because defendant's comments during the interrogation indicated an intention on defendant's part to speak with a lawyer in the future and did not constitute a clear request for counsel; accordingly, the officer who was questioning defendant was not required to cease questioning defendant. Wallace v. State, 267 Ga. App. 801, 600 S.E.2d 808 (2004).
- Accused's refusal to sign a waiver of counsel form was not in effect an assertion of the accused's right to the presence of an attorney and a significant event sufficient to invoke Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966); Johnson v. State, 251 Ga. 62, 303 S.E.2d 7 (1983).
- A Fifth Amendment right to counsel, like the sixth amendment right to counsel, may be waived by the accused; in either case, once a defendant requests an attorney, all police initiated interrogation is prohibited, and any waiver of the defendant's right to counsel for that police initiated interrogation is invalid, but the defendant may initiate further communications with the police. Housel v. State, 257 Ga. 115, 355 S.E.2d 651 (1987), cert. denied, 487 U.S. 1240, 108 S. Ct. 2915, 101 L. Ed. 2d 946 (1988).
Because the defendant asked for an attorney after the defendant's Miranda rights were read and the questioning was continued with no break in the interrogation of the defendant as a "suspect" and the questioning of the defendant as a "witness," the defendant's statement was involuntary and could not be used at trial to impeach the defendant. Linares v. State, 266 Ga. 812, 471 S.E.2d 208 (1996), cert. denied, 519 U.S. 997, 117 S. Ct. 491, 136 L. Ed. 2d 384 (1996).
- Because the defendant's desires were expressed in an equivocal fashion, police officers' efforts at clarification showed that the defendant did not intend to invoke the Fifth Amendment right to counsel by virtue of the defendant's equivocal request, and the trial court did not err by admitting the defendant's statement into evidence. Bryant v. State, 186 Ga. App. 142, 366 S.E.2d 810 (1988).
The rule in Davis v. United States, 512 U.S. 452, 114 S. Ct. 2350, 129 L. Ed. 2d 362 (1994), that, if a suspect's statement is not an unambiguous or unequivocal request for counsel, officers have no obligation to stop questioning the suspect, also applies to invocations of the Fifth Amendment right to remain silent. Perez v. State, 283 Ga. 196, 657 S.E.2d 846 (2008).
- Although the defendant asked a detective if the detective thought the defendant needed a lawyer, the defendant's question did not rise to the level of an equivocal request for counsel. Byrd v. State, 261 Ga. 202, 403 S.E.2d 38 (1991).
Defendant's comment concerning whether the defendant should ask for an attorney, made while the defendant was in the process of waiving the defendant's Miranda rights, was not an equivocal request for counsel. Jackson v. State, 222 Ga. App. 843, 476 S.E.2d 615 (1996).
- If a defendant is arrested, advised of the defendant's rights, makes an incriminating statement, is arraigned, at which time the defendant asks for an attorney, is later advised of the defendant's rights again, and then makes another incriminating statement, the admission of the defendant's second statement does not violate the defendant's fifth and fourteenth amendment rights. The defendant, under these circumstances, has only indicated the defendant desires counsel in the sixth amendment sense, not that the defendant will deal with the police only through a lawyer. Collins v. Francis, 728 F.2d 1322 (11th Cir.), cert. denied, 469 U.S. 963, 105 S. Ct. 361, 83 L. Ed. 2d 297 (1984).
Police may legitimately inquire whether a suspect has changed the suspect's mind about speaking to them with or without an attorney. Johnson v. State, 251 Ga. 62, 303 S.E.2d 7 (1983).
- Defendant's Miranda rights were not violated when investigating officers failed to cease their questioning after the defendant made a telephone call to the defendant's brother from the jail, during which the defendant requested that the defendant's brother obtain an attorney for the defendant. Payne v. State, 249 Ga. 354, 291 S.E.2d 226 (1982).
- Where the defendant was adequately advised of the defendant's rights and signed a written waiver prior to commencing a lengthy taped statement, in the course of which the interrogators were advised that an attorney secured by the defendant's parent had arrived and wanted to talk to the defendant, interrogators did not deny the defendant's rights by failing to advise the defendant of the attorney's presence. Blanks v. State, 254 Ga. 420, 330 S.E.2d 575 (1985), cert. denied, 475 U.S. 1090, 106 S. Ct. 1479, 89 L. Ed. 2d 733 (1986).
- The bright-line rule that prohibits police-initiated interrogations after a defendant has asserted the defendant's Fifth Amendment right to counsel also applies when a defendant has asserted the defendant's sixth amendment right to counsel at an arraignment or similar proceeding. Collins v. Zant, 892 F.2d 1502 (11th Cir.), cert. denied, 449 U.S. 1103, 101 S. Ct. 990, 66 L. Ed. 2d 829 (1981).
- After being given the Miranda warnings, the person under arrest may be interrogated about the commission of crimes other than the one for which the person has been arrested. Cantrell v. State, 237 Ga. 851, 230 S.E.2d 287 (1976).
- An admission made by a suspect in custody, after the suspect has invoked the privilege of silence, is voluntary within the meaning of Miranda, if it is made spontaneously, not in response to any question, during legitimate police questioning unrelated to the crime (booking procedure). Jenkins v. State, 123 Ga. App. 822, 182 S.E.2d 542 (1971).
- If a statement is made by the defendant after the defendant is informed of the victim's death and is not as a result of any questioning, but is in the nature of a spontaneous statement, it is admissible. Eidson v. State, 167 Ga. App. 184, 305 S.E.2d 787 (1983).
An incriminating statement made by the defendant after the defendant was arrested and shown the defendant's indictment was a spontaneous exclamation not prompted by any question and was properly admitted into evidence. United States v. Suggs, 755 F.2d 1538 (11th Cir. 1985).
Statement defendant made to the police when defendant was arrested about a gun replica that the defendant owned, where the defendant was accused of raping women at gunpoint, was admissible because the arresting officers did not use the functional equivalent of questioning to elicit an incriminating response from the defendant, and the spontaneous statement by the defendant was not impermissibly tainted by an officer's earlier question. Collins v. State, 267 Ga. App. 784, 600 S.E.2d 802 (2004).
It was not error for the trial court to refuse to suppress the defendant's inculpatory statements made while being transported by officers from Maryland to Georgia; the evidence supported the trial court's findings that the inculpatory statements at issue, which had been made after the defendant was advised of the Miranda rights, were not the result of interrogation or questioning but were spontaneously uttered by the defendant. Stokes v. State, 281 Ga. 825, 642 S.E.2d 82 (2007).
Because the record failed to contain any indication that the defendant: (1) informed the officers of defendant's desire to end an interview; (2) wished to speak with counsel; or (3) wished to leave the station, and after the statements were made the defendant was driven home by an officer, the defendant was not in custody for purposes of Miranda; therefore, admission of these non-custodial statements was proper. Vaughn v. State, 282 Ga. 99, 646 S.E.2d 212 (2007).
Because the defendant's spontaneous outburst was voluntarily made and not the product of police interrogation, the evidence was not subject to a hearsay exception, Miranda warnings were not required, and the statement was admissible. Tennyson v. State, 282 Ga. 92, 646 S.E.2d 219 (2007).
- Where a conversation was spontaneous and not in response to any interrogation or prodding by the person transporting defendants to the hospital, who overheard the conversation, there was no Miranda violation. Eady v. State, 182 Ga. App. 293, 355 S.E.2d 778 (1987).
- The finding that the defendant's statements were voluntary was authorized by testimony that the defendant made spontaneous, voluntary, precustodial statements to the two investigating officers at the scene of the crime, without any questioning, threats, or promises on their part; that these statements were interrupted by their giving the defendant the Miranda warnings, after which the defendant continued the statement; that the defendant had indicated that the defendant understood the Miranda warnings, but did not request an attorney; and that the defendant had made later, consistent custodial statements after having been advised again of the Miranda rights. Sanders v. State, 257 Ga. 239, 357 S.E.2d 66 (1987).
- Because the defendant initiated and asked for a meeting with a law enforcement officer at a restaurant, the defendant was not in custody under the Miranda rule and the statement the defendant made at the meeting was admissible. Hardin v. State, 269 Ga. 1, 494 S.E.2d 647 (1998).
Defendant's voluntary exclamation of "You got me" is not inadmissible because of a failure to give warnings required by the Escobedo and Miranda cases. Caito v. State, 130 Ga. App. 831, 204 S.E.2d 765 (1974); Kerrethers v. State, 169 Ga. App. 832, 315 S.E.2d 46 (1984).
Defendant could not raise an objection to the admission of defendant's spontaneous statement to police officers executing a search warrant that "you've got me" for the first time on appeal absent plain error. There was no plain error in admitting the statement as: (1) defendant was being detained under O.C.G.A. § 17-5-28, and was not under arrest; (2) defendant was not being interrogated, making Miranda warnings not required; (3) defense counsel cross-examined the officers on the statement: (4) the statement was admissible as a spontaneous statement; and (5) the statement was admissible under O.C.G.A. § 24-3-3 as a part of the res gestae. Zackery v. State, 262 Ga. App. 646, 586 S.E.2d 346 (2003).
- Statements of an incriminatory character by one accused of crime are admissible in evidence, if freely and voluntarily made, though made to an officer while in custody and induced by some trick, artifice, or deception. Jacobs v. State, 133 Ga. App. 812, 212 S.E.2d 468 (1975).
- A mature individual of normal intelligence, after being fully advised of the individual's constitutional rights and consenting to be interviewed without counsel, may, during short periods of questioning when not otherwise imposed upon, be asked leading questions. Moore v. Hopper, 389 F. Supp. 931 (M.D. Ga. 1974), aff'd, 523 F.2d 1053 (5th Cir. 1975).
- Each case is to be judged individually on its facts, and the burden is on the prosecution to show the admissibility of statements made by the defendant while in unlawful custody. Hill v. State, 140 Ga. App. 121, 230 S.E.2d 336 (1976).
- If the causal connection between an illegal arrest and a confession is not broken by any intervening events, but a suspect is interrogated from the time of the defendant's arrival until the defendant confesses a short time later, the trial court errs by admitting the confession into evidence, and a conviction based solely on the confession cannot stand. Robinson v. State, 166 Ga. App. 741, 305 S.E.2d 381 (1983).
- Defendant's statements made to the police were not the product of an illegal arrest and, therefore, inadmissible, because the arresting officer, with an arrest warrant in the officer's pocket, went to the defendant's house and convinced the defendant to go to the police station for further questioning, and when they arrived at the police station, the defendant was immediately advised of the defendant's rights and arrested, signed a written waiver of rights, and gave two statements to the police. There was no merit to the contention that the defendant should have been informed the defendant was being arrested while at home and before going to the police station. Phillips v. State, 258 Ga. 228, 368 S.E.2d 91 (1988).
Statements made to parties which are not law enforcement officers or agents of the state do not require Miranda warnings or trigger an accused's right to counsel. Berryhill v. State, 249 Ga. 442, 291 S.E.2d 685, cert. denied, 459 U.S. 981, 103 S. Ct. 317, 74 L. Ed. 2d 293 (1982).
That FBI was aware that the witness was visiting defendant and that they paid the witness' travel expenses for these visits, without more, did not make such witness an agent for the government, and, therefore, warnings were inapplicable to statements made by defendant to the witness, and defendant had no right to have counsel present during such visits. Harper v. State, 249 Ga. 519, 292 S.E.2d 389 (1982).
Miranda warnings are not a prerequisite to the admission of statements made by a defendant to persons other than law enforcement officers or their agents. Bethea v. State, 251 Ga. 328, 304 S.E.2d 713 (1983).
- Where a GBI agent told the defendant that the agent wanted to talk to the defendant about the theft of a truck and only later, after the defendant began talking, told the defendant that the agent knew the owner of the truck was dead, the agent's conduct did not amount to the kind of "affirmative misrepresentation" that would invalidate a suspect's waiver of the Fifth Amendment privilege. Christenson v. State, 261 Ga. 80, 402 S.E.2d 41 (1991), cert. denied, 502 U.S. 855, 112 S. Ct. 166, 116 L. Ed. 2d 130 (1991).
- After the defendant walked into the city clerk's office looking for someone to surrender to after shooting two people, the defendant could not have believed reasonably that an unarmed, nonuniformed city clerk was a law enforcement officer, or that the defendant was in the clerk's custody, and Miranda did not apply to statements elicited by the clerk. Childs v. State, 257 Ga. 243, 357 S.E.2d 48, cert. denied, 484 U.S. 970, 108 S. Ct. 467, 98 L. Ed. 2d 406 (1987).
- The presence of a uniformed sheriff's deputy during the interview of defendant by a caseworker of the Department of Family and Children Services did not require the conclusion that defendant was in custody. Banther v. State, 182 Ga. App. 333, 355 S.E.2d 709 (1987).
- Questioning an inmate, whether by peace officers or prison officials, where the thrust and purpose of the interrogation relates to a suspected crime for which criminal prosecution might ensue, is a custodial hearing, and requires a Miranda warning, in order to render any statements made therein admissible in a subsequent hearing. Grant v. State, 154 Ga. App. 758, 270 S.E.2d 42 (1980).
- It is not the law of this state that when a prisoner is known by police to be represented by counsel, anything the prisoner says to police in absence of counsel is per se inadmissible, whether "voluntary" or not. Pierce v. State, 235 Ga. 237, 219 S.E.2d 158 (1975).
- A statement made to a warden concerning the location of a car known to have been stolen, which statement had the practical effect of a full confession, is inadmissible as a product of custodial interrogation without the prior warnings required under Miranda. Biddy v. State, 127 Ga. App. 212, 193 S.E.2d 31 (1972).
- Evidence is inadmissible if a warden fails to give Miranda warnings and suggests that the defendant might receive a lighter sentence if the defendant reveals to the officer the location of a car the defendant had stolen and used in escaping. Biddy v. State, 127 Ga. App. 212, 193 S.E.2d 31 (1972).
- The prosecution may not use statements stemming from custodial interrogation of the defendant unless it demonstrates the use of procedural safeguards effective to secure the privilege against self-incrimination. United States v. Bennett, 626 F.2d 1309 (5th Cir. 1980), cert. denied, 449 U.S. 1092, 101 S. Ct. 888, 66 L. Ed. 2d 821 (1981); Chester v. State, 157 Ga. App. 191, 276 S.E.2d 684 (1981).
If interrogation continues without the presence of an attorney and a statement is taken, a heavy burden rests on the government to demonstrate that the defendant knowingly and intelligently waived the privilege against self-incrimination and the right to retain or appoint counsel. Colbert v. State, 124 Ga. App. 283, 183 S.E.2d 476 (1971).
- The offering of an opportunity in § 16-11-36 for someone suspected of loitering and prowling to explain their presence and conduct does not abrogate the right against self-incrimination. Bell v. State, 252 Ga. 267, 313 S.E.2d 678 (1984).
- Because a statement, while "custodial," was not initiated by police officers, but rather, it was the defendant's response to an officer's answer to the defendant's own question, there was no error in admitting the statement. Delay v. State, 258 Ga. 229, 367 S.E.2d 806, cert. denied, 488 U.S. 850, 109 S. Ct. 132, 102 L. Ed. 2d 105 (1988).
Because the undisputed evidence established that a juvenile defendant was informed of the right to have a parent present during an interview with police in which a custodial statement was obtained, but did not invoke that right, there was no error in allowing the juvenile defendant's statement into evidence. Green v. State, 282 Ga. 672, 653 S.E.2d 23 (2007).
Although resulting in a defendant confessing to a murder, responses an arresting officer made to questions posed by the defendant did not result in a violation of the defendant's Miranda rights as the responses were not the product of a custodial interrogation and there was no evidence of a plan or design on the part of the police to interrogate the defendant without first advising the defendant of the defendant's rights under Miranda. Byrum v. State, 282 Ga. 608, 652 S.E.2d 557 (2007).
- A letter voluntarily written by a prisoner to a stranger to the proceedings which comes to the attention of the state through its power to maintain discipline in its detention facilities and not at the request of or by subterfuge of the state (i.e., not a custodial statement) is not the product of "custodial interrogation" and, thus, is a part of the work product of the state not subject to compelled discovery except to the extent that such a letter may be exculpatory and subject to disclosure under Brady v. Maryland, 373 U.S. 83, 83 S. Ct. 1194, 10 L. Ed. 2d 215 (1963); Franklin v. State, 166 Ga. App. 375, 304 S.E.2d 501 (1983).
- The exclusionary rule does not apply to evidence derived from a voluntary but Miranda-tainted statement. Wilson v. Zant, 249 Ga. 373, 290 S.E.2d 442, cert. denied, 459 U.S. 1092, 103 S. Ct. 580, 74 L. Ed. 2d 940 (1982), but see, Morgan v. State, 267 Ga. 203, 476 S.E.2d 747 (1996).
- State impermissibly questioned the defendant as to whether after the defendant had invoked the right to remain silent, the defendant had shared certain information concerning the defendant's defense with law enforcement officers. Boivin v. State, 298 Ga. App. 411, 680 S.E.2d 415 (2009).
- In view of the compelling weight of the evidence against the defendant, if it was error to admit the incriminating statements made in response to interrogation carried on after the defendant had said the defendant would not answer questions, it was error without injury beyond reasonable doubt. United States v. Clavis, 956 F.2d 1079 (11th Cir.), cert. denied, 504 U.S. 990, 112 S. Ct. 2979, 119 L. Ed. 2d 597, modified on other grounds, 977 F.2d 538 (11th Cir. 1992), cert. denied, 507 U.S. 998, 113 S. Ct. 1619, 123 L. Ed. 2d 178 (1993).
- Although the trial court erred in allowing the state to introduce defendant's custodial statement to police, the error was harmless because the record established beyond a reasonable doubt that it did not contribute to the guilty verdict where the eyewitness testimony was overwhelming evidence of defendant's guilt of the crimes of which the defendant was convicted. Gardner v. State, 261 Ga. App. 10, 582 S.E.2d 7 (2003).
Volunteered statements of any kind are not barred by U.S. Const., amend. 5. Carnes v. State, 115 Ga. App. 387, 154 S.E.2d 781, cert. denied, 389 U.S. 928, 88 S. Ct. 287, 19 L. Ed. 2d 279 (1967).
- Any statement given freely and voluntarily without any compelling influences is admissible in evidence. Carnes v. State, 115 Ga. App. 387, 154 S.E.2d 781, cert. denied, 389 U.S. 928, 88 S. Ct. 287, 19 L. Ed. 2d 279 (1967).
In a child molestation case, because the evidence of record showed that the officers immediately ceased their interrogation of the defendant when the defendant requested counsel and that it was the defendant who thereafter initiated further communication between them, the trial court was authorized to conclude both that the statements were made freely and voluntarily and that they were not elicited in violation of the defendant's right to counsel. Tatum v. State, 203 Ga. App. 892, 418 S.E.2d 152 (1992).
- Statements the defendant made to police at the hospital and the police station were admissible because the defendant was not in custody at the hospital and, thus, no Miranda warnings were required, and the defendant voluntarily waived those rights at the police station. Schutt v. State, 292 Ga. 625, 740 S.E.2d 163 (2013).
- It did not appear as a matter of law from the evidence that Miranda rights were triggered by a detective's mere asking of the defendant's name, address and other preliminaries for booking purposes, where the defendant was being transported from the defendant's attorney's office, and where the defendant had surrendered into custody, to jail. Syfrett v. State, 210 Ga. App. 185, 435 S.E.2d 470 (1993).
Miranda warnings are not a prerequisite to the admission of evidence concerning voluntary statements not made in response to any form of custodial interrogation. Smith v. State, 264 Ga. 857, 452 S.E.2d 494 (1995).
No Miranda warnings were required before defendant made a statement, where it was made voluntarily, and was not made in response to police interrogation or while in police custody. Stevenson v. State, 264 Ga. 892, 453 S.E.2d 18 (1995).
Defendant properly waived the defendant's Miranda rights so that the defendant's subsequent statements were made voluntarily because the defendant spoke with police detectives and signed a written statement regarding the crimes committed by the defendant before the defendant was arrested. Furthermore, the officers who interviewed the defendant did not breach protocol because, when the officers had the defendant sign the form, the officers did not have to have the defendant separately initial each right that the defendant waived. Herbert v. State, 288 Ga. 843, 708 S.E.2d 260 (2011).
If defendant initiates communications with the police, the defendant has waived the defendant's Miranda rights. Ward v. State, 262 Ga. 293, 417 S.E.2d 130 (1992), cert. denied, 506 U.S. 1084, 113 S. Ct. 1061, 122 L. Ed. 2d 366 (1993).
In a case in which the defendant, who had been stopped by a police officer, left the vehicle and approached a police officer in an unsteady manner, smelling of alcohol, the defendant's volunteered response to the officer's inquiry concerning the defendant's consumption of alcohol did not provoke the right of a custodial interrogation requiring Miranda procedural safeguards. Tibbs v. State, 207 Ga. App. 273, 427 S.E.2d 603 (1993).
Defendant's admission to ownership of a hat found at a robbery scene was properly admitted because the trial court found that defendant voluntarily initiated a discussion with a detective about the hat and that defendant waived the right to counsel before making a statement. Lawson v. State, 275 Ga. App. 334, 620 S.E.2d 600 (2005).
Statements made by the defendant in a second custodial interrogation were properly admitted because the investigator honored the defendant's original invocation of the right to remain silent by immediately stopping the interview and exiting the room; furthermore, in the four days between interviews, the defendant was not subjected to repeated efforts to wear down the defendant's resistance and make the defendant change the defendant's mind about invoking the right to remain silent, and because Miranda warnings were repeated before the second interview, and the defendant understood those rights. Griffin v. State, 280 Ga. 683, 631 S.E.2d 671 (2006).
Because a police officer who heard the defendant's statement that the defendant shot after someone because the person took some marijuana from the defendant testified that the defendant uttered the statement spontaneously, and the police officer had not questioned or threatened the defendant, nor did anything to have coerced the defendant to have made the statement, the trial court's ruling that the defendant made the statement freely and voluntarily was not clearly erroneous. Johnson v. State, 287 Ga. App. 352, 651 S.E.2d 450 (2007).
It was not error to refuse to suppress the statements the defendant made during an interview with police because the defendant pointed to nothing in the record that showed the defendant had previously invoked the defendant's Fifth Amendment right to have counsel present during custodial interrogation; the fact that counsel was appointed for the defendant at a prior appearance before the trial court did not afford the defendant relief under the Sixth Amendment, and, furthermore, the interview was at the defendant's instigation. Dixon v. State, 294 Ga. 40, 751 S.E.2d 69 (2013).
- To protect the voluntariness of a waiver of rights under U.S. Const., amend. 5, where a plea, confession, or admission is based on a promise of a plea bargain or immunity, the government must keep its promise. United States v. Weiss, 599 F.2d 730 (5th Cir. 1979).
- Though statements by the defendant may be possibly voluntary under U.S. Const., amend. 5, it does not necessarily mean they were voluntary under U.S. Const., amend. 4, since they might be tainted by an illegal arrest and detention. In order for the causal chain, between the illegal arrest and the statements made subsequent thereto, to be broken, requires not merely that the statement meet U.S. Const., amend. 5's standard of voluntariness but that it be sufficiently an act of free will to purge the primary taint. Consideration of a statement's admissibility must be made in light of the distinct policies and interests of U.S. Const., amend. 4. Hill v. State, 140 Ga. App. 121, 230 S.E.2d 336 (1976).
Even though proper Miranda warnings may have been given prior to a defendant's making an incriminatory statement, and even though the statement may have been voluntary for purposes of U.S. Const., amend. 5, the statement is nonetheless inadmissible under the fourth amendment if it is the product of an illegal seizure. Green v. State, 168 Ga. App. 558, 309 S.E.2d 687 (1983).
Trial court does not err in admitting the defendant's confession obtained pursuant to the defendant's consent if there is nothing in the record to indicate that the confession was coerced or involuntary, and the fact that the defendant may have been illegally detained at the time the defendant made the defendant's statement does not render it inadmissible. Thompson v. State, 157 Ga. App. 600, 278 S.E.2d 62, aff'd, 248 Ga. 343, 285 S.E.2d 685 (1981).
All evidence is not "fruit of the poisonous tree" simply because it would not have come to light but for the illegal actions of the police. The intervention of a clear act of free will on the part of the defendant can purge the evidence of its stigma. United States v. Strickland, 493 F.2d 182 (5th Cir.), cert. dismissed, 419 U.S. 801, 95 S. Ct. 9, 42 L. Ed. 2d 32 (1974).
- The third provision of U.S. Const., amend. 5, "nor shall [any person] be compelled in any Criminal Case to be a witness against himself," may be waived. Barkman v. Sanford, 162 F.2d 592 (5th Cir.), cert. denied, 332 U.S. 816, 68 S. Ct. 155, 92 L. Ed. 393 (1947).
The rights guaranteed under U.S. Const., amend. 5 and U.S. Const., amend. 6 are personal; if the defendant has chosen to waive the defendant's rights, and there has been no misconduct on the part of the investigating officers, the trial court does not err in admitting the defendant's statements. Stevens v. State, 247 Ga. 698, 278 S.E.2d 398 (1981), cert. denied, 463 U.S. 1213, 103 S. Ct. 3551, 77 L. Ed. 2d 1398 (1983).
Because a witness in a civil proceeding refused to answer questions on grounds other than the witness' Fifth Amendment rights and was held in contempt by the trial court, the witness could not, following unsuccessful appeal of the contempt order, assert the privilege against self-incrimination as a ground for refusing to answer the questions because the witness had waived this privilege by failing to invoke it at the first opportunity. Cohran v. Carlin, 165 Ga. App. 141, 299 S.E.2d 738 (1982).
Defendant voluntarily waived the right to an attorney by initiating the interview at which the defendant's confession was obtained, following a prior request for counsel. Snipes v. State, 188 Ga. App. 366, 373 S.E.2d 48 (1988).
Allowing a codefendant to give testimony regarding the substance of the defendant's prior testimony at a probation revocation hearing, after the defendant elected not to take the stand at trial, did not violate the defendant's privilege against self-incrimination, since the defendant waived the privilege by testifying voluntarily on the defendant's behalf at the prior hearing. Bobbitt v. State, 215 Ga. App. 131, 449 S.E.2d 674 (1994).
Because there was evidence that could have authorized the exclusion of the defendant's statement based on lack of a knowing and understanding waiver of the defendant's Miranda rights, and because the trial court failed to make specific findings on the issue, a remand was necessary for the entry of findings on this issue. Livingston v. State, 267 Ga. App. 875, 600 S.E.2d 817 (2004).
By merely asking if an attorney was present, the defendant did not make an unambiguous request for counsel during a custodial interrogation; because a detective testified that the detective interviewed the defendant for only 35 to 40 minutes immediately after the defendant's arrest and that the defendant was able to understand the detective and respond appropriately to questions, and because the trial court heard the audiotape of the interview, the trial court did not err in finding that the defendant knowingly and voluntarily waived the right to counsel, and admission of the statement was not improper. Simon v. State, 279 Ga. App. 844, 632 S.E.2d 723 (2006).
- A waiver of the Fifth Amendment right to counsel must be freely and voluntarily given, and must be knowingly and intelligently made. Buttrum v. Black, 721 F. Supp. 1268 (N.D. Ga. 1989), aff'd, 908 F.2d 695 (11th Cir. 1990).
Habeas court's finding that a petitioner's guilty pleas were validly entered was reversed as the waiver forms signed by the petitioner and reviewed with the petitioner by the petitioner's attorneys addressed only the right to be tried by a jury; the waiver forms did not advise the petitioner that the petitioner was waiving the petitioner's right against self-incrimination and the petitioner's confrontation right. Beckworth v. State, 281 Ga. 41, 635 S.E.2d 769 (2006).
Suspect can always make a spontaneous, voluntary statement which would be admissible at trial. Therefore, a defendant did not knowingly and intelligently waive the Sixth Amendment right to counsel by executing a Miranda waiver, as the defendant signed the waiver only after police erroneously told the defendant signing the waiver was a precondition to telling the defendant's "side of the story." State v. Darby, 284 Ga. 271, 663 S.E.2d 160 (2008).
- Defendant's claim that defendant's waiver of Miranda rights was involuntary because defendant was intoxicated was rejected; an officer testified that defendant did not appear to be intoxicated, that defendant seemed to understand the officer's questions, and that defendant's answers were responsive to the officer's questions, and the trial court was entitled to believe this testimony. Smith v. State, 269 Ga. App. 17, 602 S.E.2d 921 (2004).
- Whether, after the Miranda warnings are given, the waiver of those rights was free and voluntary depends upon the totality of the circumstances. Miller v. State, 155 Ga. App. 587, 271 S.E.2d 719 (1980).
- Because the defendant, without any questioning by the detective, admitted committing the burglary at the residence where the defendant had been apprehended, seconds after having initialled a waiver form, the confession was admissible. Blige v. State, 203 Ga. App. 151, 416 S.E.2d 160 (1992).
The defendant's custodial statement was not secured in violation of the right to remain silent, because the defendant initially asserted the right to remain silent, and the evidence supported the finding that the interrogator ceased interrogation once the defendant invoked the right to remain silent and that, minutes later, the defendant waived this right by spontaneously and voluntarily initiating the conversation during which the defendant made the statement. Farley v. State, 234 Ga. App. 742, 507 S.E.2d 504 (1998).
Although defendant disputed many of the facts offered by a police detective and a federal agent regarding whether defendant was given Miranda warnings prior to defendant's statements to the detective and the agent and whether defendant's statements were made without bribery and coercion, the trial judge was the arbiter of the credibility of the witnesses at defendant's Jackson v. Denno hearing and ample testimony supported the trial court's conclusion that the statements were voluntarily given where the testimony of the detective and the federal agent indicated that the two custodial interviews each lasted about an hour, defendant was read Miranda warnings and executed a written waiver of rights form before giving each statement, and defendant was never threatened or promised any hope of benefit in exchange for the statements; since the trial court's factual and credibility findings were not clearly erroneous, its decision to admit the statements was upheld on appeal. Phanamixay v. State, 260 Ga. App. 177, 581 S.E.2d 286 (2003).
Defendant's videotaped statement made to police during a custodial interrogation was admissible because the defendant made the statement voluntarily after the defendant was advised of, and waived, the defendant's Miranda rights, and the defendant presented no evidence the statement was made under duress or coercion. McCoy v. State, 292 Ga. 296, 736 S.E.2d 425 (2013).
Defendant's custodial statement was admissible because the statement was made during questioning prompted by the defendant, after the defendant signed a written waiver of rights form. Smith v. State, 292 Ga. 620, 740 S.E.2d 158 (2013).
In deciding the admissibility of a statement during a Jackson-Denno hearing, the trial court must consider the totality of the circumstances and must determine the admissibility of the statement under the preponderance of the evidence standard. Fowler v. State, 246 Ga. 256, 271 S.E.2d 168 (1980).
Trial court is required to make findings as to voluntariness in determining the admissibility of a statement given to a second police officer after the first officer had advised the defendant of the defendant's rights. Jordan v. State, 207 Ga. App. 710, 429 S.E.2d 97 (1993).
Privilege against self-incrimination can be waived in praesenti. Feig v. Feig, 246 Ga. 763, 272 S.E.2d 723 (1980).
- By making statements knowingly and voluntarily after being advised of constitutional rights, a party waives the right to remain silent. Pendergrass v. State, 245 Ga. 626, 266 S.E.2d 225 (1980).
Once Miranda warnings are given and a person in custody gives a statement to police without invoking the right to remain silent and without requesting an attorney, that person has in effect waived that person's rights. Barrs v. State, 202 Ga. App. 520, 414 S.E.2d 733 (1992).
- In a civil wrongful death case against a doctor for prescriptions resulting in a drug overdose, and in which a parallel criminal case was pending, the trial court erred in staying the civil case based on the court's erroneous view that a waiver of the doctor's Fifth Amendment privilege in the civil case would result in a waiver in the criminal case. Remand was required for consideration under a correct view. Austin v. Nagareddy, 344 Ga. App. 636, 811 S.E.2d 68 (2018).
- Defendant's statement that the defendant "was reluctant to answer any question" did not constitute an equivocal invocation to right to remain silent since it was made before the defendant was in actual police custody. Manchester v. State, 226 Ga. App. 653, 487 S.E.2d 449 (1997).
Defendant's statement during questioning was admissible into evidence because the defendant made no more than an equivocal invocation of the defendant's right to remain silent, and the defendant did not articulate a desire to cut off questioning with sufficient clarity that a reasonable police officer in the circumstances would have understood the articulation to be an assertion of the right to remain silent. Thus, the interrogating officer had no obligation to stop questioning the defendant. Weaver v. State, 288 Ga. 540, 705 S.E.2d 627 (2011).
- Any statements by the defendant after waiver documents were read to and executed by the defendant were knowingly and voluntarily given, as were the waivers of Miranda rights that preceded such statements. Rachell v. State, 210 Ga. App. 106, 435 S.E.2d 480 (1993).
- Defendant's refusal to sign a Miranda waiver form was not an invocation of the right to remain silent or to counsel. Hunter v. State, 273 Ga. App. 52, 614 S.E.2d 179 (2005).
- If an accused has invoked the right to have counsel present during custodial interrogation, a valid waiver of that right cannot be established by showing only that the accused responded to further police-initiated custodial interrogation even if the accused has been advised of the accused's rights. Cervi v. Kemp, 855 F.2d 702 (11th Cir. 1988), cert. denied, 489 U.S. 1033, 109 S. Ct. 1172, 103 L. Ed. 2d 230 (1989).
Refusal to sign written waiver does not automatically invoke the accused's right to silence; whether a failure to sign a written waiver constitutes such an invocation depends upon the existing circumstances. Johnson v. State, 186 Ga. App. 801, 368 S.E.2d 562 (1988).
- Defendant's assertion of the right to counsel rendered inadmissible any statement subsequently given by the defendant in violation of the defendant's rights, but did not have the effect of rendering inadmissible any previous statement which the defendant had already made pursuant to a valid waiver of the defendant's constitutional rights. Peebles v. State, 196 Ga. App. 176, 395 S.E.2d 640 (1990).
Defendant knowingly and intelligently waived the Fifth Amendment privilege, because, although the defendant had a dependent personality disorder, the defendant was not completely without the will to refuse the requests of others, even when under medication, and the defendant understood at least some of the consequences of the defendant's acts. United States v. Gaddy, 894 F.2d 1307 (11th Cir. 1990).
Because defendant received Miranda warnings, waived them and then gave a statement to police, the fact that defendant was taking pain medication at the time did not negate the voluntary waiver of defendant's rights under Miranda, and as the findings on that issue by the trial court were not clearly erroneous, the denial of suppression of that statement was not disturbed. Moyer v. State, 275 Ga. App. 366, 620 S.E.2d 837 (2005), overruled on other grounds, Vergara v. State, 283 Ga. 175, 657 S.E.2d 863 (2008).
Trial court properly admitted defendant's statement at trial with regard to defendant's conviction of felony murder and possession of a firearm in connection with the shooting death of another as the evidence supported the trial court's conclusion that defendant made a knowing, voluntary, and intelligent waiver of defendant's rights before making the statement to police; the evidence established that Georgia police officers went to the city in the state of Florida where defendant fled and had been arrested and, prior to the interview, defendant was read Miranda rights and agreed to speak with the officers after informing the officers that defendant understood defendant's rights. The evidence further showed that no promises or threats were made to defendant to get defendant to speak and at no time did defendant ask for the questioning to stop. Martinez v. State, 283 Ga. 122, 657 S.E.2d 199 (2008).
- Confessions and incriminating statements given outside the presence of the juvenile's parents will not be automatically excluded, because age alone is not determinative of whether a person can waive the person's rights. Instead, the question of waiver must be analyzed by a consideration of several factors. These are (1) age of the accused; (2) education of the accused; (3) knowledge of the accused as to both the substance of the charge . . . and the nature of the accused's rights to consult with an attorney and remain silent; (4) whether the accused is held incommunicado or allowed to consult with relatives, friends or an attorney; (5) whether the accused was interrogated before or after formal charges had been filed; (6) methods used in interrogation; (7) length of interrogations; (8) whether vel non the accused refused to voluntarily give statements on prior occasions; and (9) whether the accused has repudiated an extrajudicial statement at a later date. Riley v. State, 237 Ga. 124, 226 S.E.2d 922 (1976).
Given an analysis of the Riley factors, and the fact that the juvenile defendant knowingly and voluntarily waived any constitutional rights due under Miranda, suppression of a custodial statement to law enforcement was not required. Green v. State, 282 Ga. 672, 653 S.E.2d 23 (2007).
The admissibility of a juvenile's statement turns on whether the juvenile knowingly and voluntarily waived the juvenile's constitutional rights, and the state has a heavy burden in showing that a juvenile did so. Whether a juvenile has made a knowing and voluntary waiver of the juvenile's rights depends on the totality of the circumstances, with consideration given to nine specific factors. Smith v. State, 263 Ga. 363, 434 S.E.2d 465 (1993).
A thirteen-year old defendant knowingly and intelligently waived the defendant's constitutional rights and made the defendant's statements freely and voluntarily where the trial court found that the defendant was fully informed of the defendant's rights and gave every indication, even under the defendant's own testimony, that the defendant understood those rights and understood the charges against the defendant; that the defendant showed throughout a willingness to speak with the police officers; that the defendant's statements were made in a non-coercive setting in the presence of one or both of the two adults with whom the defendant lived; and that no promise of benefit had been made to the defendant. Henry v. State, 264 Ga. 861, 452 S.E.2d 505 (1995).
The trial court did not err in finding that a defendant made a knowing and intelligent waiver of the defendant's federal and state constitutional rights prior to giving a statement to police because a juvenile waiver-of-rights form was read in its entirety to, and signed by, the defendant and the defendant's parent, and neither the defendant nor the defendant's parent ever invoked the defendant's right to remain silent or asked that the questioning cease. Norris v. State, 282 Ga. 430, 651 S.E.2d 40 (2007).
There are factual situations in which the privilege under U.S. Const., amend. 5 may be waived. Tyler v. United States, 404 F.2d 409 (5th Cir. 1968), cert. denied, 394 U.S. 917, 89 S. Ct. 1187, 22 L. Ed. 2d 450 (1969).
Defendant's statement to the officer that the defendant would talk but would not sign anything, proved not only waiver of the right to remain silent but of the assistance of an attorney as well. Graves v. State, 180 Ga. App. 446, 349 S.E.2d 519 (1986).
- Although the defendant had refused to sign a written acknowledgment that the defendant had been informed of the right to remain silent and right to representation, the defendant's subsequent acknowledgment in writing two hours later that the defendant had been informed of these rights supported the trial court's findings that the defendant's statement was freely and voluntarily given. Pierce v. State, 209 Ga. App. 366, 433 S.E.2d 641 (1993).
- Defendant's waiver of the right to counsel, made at a police-initiated interrogation after the defendant had invoked the defendant's right to counsel, was invalid, notwithstanding the fact that the defendant had earlier been allowed to consult with an attorney briefly on the afternoon of the defendant's interrogation. Roper v. State, 258 Ga. 847, 375 S.E.2d 600, cert. denied, 493 U.S. 923, 110 S. Ct. 290, 107 L. Ed. 2d 270 (1989).
- If the defendant is admonished with Miranda warnings after the right to counsel attaches, and then voluntarily makes inculpatory statements, the statements need not be suppressed. Buttrum v. Black, 721 F. Supp. 1268 (N.D. Ga. 1989), aff'd, 908 F.2d 695 (11th Cir. 1990).
While defendant claimed an officer had promised defendant leniency in exchange for defendant's statement, the officer denied this; therefore, the trial court's denial of defendant's motion to suppress defendant's custodial statements on the grounds they were not voluntary was not clearly erroneous. Pennymon v. State, 261 Ga. App. 450, 582 S.E.2d 582 (2003).
Defendant's motion to suppress the custodial statement the defendant gave to the police was properly denied as: (1) the Miranda warnings were first read aloud to the defendant and then the defendant was allowed to read and initial each right and to sign the waiver form; (2) the defendant's parent was present during the interrogation; (3) the defendant's statement to the police was not the result of threats or intimidation; and (4) the interrogation tactics used, including alleged screaming and chair-kicking, were not more than were ordinarily employed. Peterson v. State, 280 Ga. 875, 635 S.E.2d 132 (2006).
Defendant's motion to suppress a videotaped statement was properly denied as the sixth amendment right to counsel was offense specific and counsel representing the defendant on unrelated charges did not have to be contacted prior to an interview about a murder; the defendant was advised of the defendant's Fifth Amendment right to counsel at the initiation of the questioning about the murder and executed a waiver of that right, and at a Jackson-Denno hearing, the defendant's inculpatory statement was found to have been made freely and voluntarily. McKinney v. State, 281 Ga. 92, 635 S.E.2d 153 (2006).
Because the evidence sufficiently showed that the defendant made a rational and intelligent choice to waive the rights outlined under Miranda and speak with police detectives on two separate and distinct occasions, the trial court did not err in denying a motion to suppress said statements. Starks v. State, 283 Ga. 164, 656 S.E.2d 518 (2008).
Statements the defendant made at the scene and the station during an interview were admissible, because the defendant received and waived Miranda warnings before making the incriminating statements, and the defendant's interrogators testified that the interrogators made no threats or promises and did not coerce the defendant in any way. Simmons v. State, 291 Ga. 664, 732 S.E.2d 65 (2012).
- Trial court did not err in denying the defendant's motion to exclude a statement made to a detective because the statement was made while the defendant was under the influence of Ecstasy and was induced by the hope of a light sentence because the defendant never told the detective that the defendant had taken Ecstasy a few hours earlier and the detective credibly testified that no promise of leniency was made. Leonard v. State, 292 Ga. 214, 735 S.E.2d 767 (2012).
- Whether or not a waiver of rights under U.S. Const., amend. 5 is voluntary does not mean that courts do not recognize that defendants cannot be free from conflicting concerns, and cannot weigh the relative advantages of silence and explanation. United States v. White, 589 F.2d 1283 (5th Cir. 1979).
- If an accomplice has been separately indicted and has testified at the accomplice's own trial, the accomplice waives the privilege against self-incrimination when appearing as a witness at the defendant accomplice's trial. Lively v. State, 237 Ga. 35, 226 S.E.2d 581 (1976).
- On a second trial a party may decline to give evidence which would tend to incriminate that party, notwithstanding the fact that at a previous trial of the case the party waived the party's privilege of remaining silent as to these matters. Mallin v. Mallin, 227 Ga. 833, 183 S.E.2d 377 (1971).
- Absent objections grounded on the Fifth Amendment at the bail hearing, the decision of defense counsel to bring the extraneous issue of guilt or innocence into the bail proceeding did not preclude, on Fifth Amendment grounds, the use at trial of incriminating testimony given at such hearing. Cowards v. State, 266 Ga. 191, 465 S.E.2d 677 (1996).
- The burden rests upon the state to demonstrate clearly that the defendant knowingly and intelligently waived the privilege against self-incrimination. Smith v. State, 132 Ga. App. 491, 208 S.E.2d 351 (1974).
- Evidence of statements made by the defendant in a conversation overheard by the arresting officers who had concealed themselves, as planned between them and the person with whom the defendant talked, does not amount to evidence given by the defendant involuntarily and without the advice of counsel, and is not coerced from the defendant in violation of the defendant's rights not to be compelled to be a witness against himself. Blackwell v. State, 113 Ga. App. 536, 148 S.E.2d 912 (1966).
- Trial court was not clearly erroneous in admitting the voluntary and spontaneous statements defendant made while riding in a police car after defendant's arrest before being advised of Miranda rights because the statements were not the result of an interrogation and an officer told defendant it would be in defendant's best interest to wait until getting to the police station before talking. Gresham v. State, 255 Ga. App. 625, 566 S.E.2d 380 (2002).
- Because the defendant had been stopped by officers, but was not under legal arrest, the defendant's action in opening the defendant's mouth when ordered to do so by officer, at which time officer removed from the defendant's mouth a chewing gum wrapper containing penciled entries for use in a numbers game, was voluntary and not the result of coercion so as to make the introduction of the wrapper, as a lottery ticket, inadmissible on the ground that it violated the constitutional inhibition against self-incrimination, as there was no explicit threat or show of force against the defendant. Nor can it be said, in the absence of coercion, that such evidence was inadmissible as violative of the due process clause of U.S. Const., amend. 14. Jones v. State, 90 Ga. App. 761, 84 S.E.2d 124 (1954).
Failure to inform defendant of the privilege under U.S. Const., amend. 5 in the civil context does not make testimony given in the civil case involuntary. United States v. White, 589 F.2d 1283 (5th Cir. 1979).
Because the transcript of proceedings and trial counsel's affidavit did not show that defendant was advised that a guilty plea would waive the privilege against self-incrimination and the right to confrontation, the trial court erred in denying defendant's habeas corpus petition. Green v. State, 279 Ga. 687, 620 S.E.2d 788 (2005).
Uncounseled inculpatory testimony in a civil case given in ignorance of the privilege under U.S. Const., amend. 5 is not inadmissible in a subsequent criminal case. United States v. White, 589 F.2d 1283 (5th Cir. 1979).
- Admission of a nonvoluntary statement although not a confession nor on its face incriminatory is a violation of due process. Platt v. State, 163 Ga. App. 776, 296 S.E.2d 113 (1982).
- The requirement for a hearing on the issue of voluntariness of a statement applies only if the evidence presents a fair question as to its voluntariness. Watson v. State, 227 Ga. 698, 182 S.E.2d 446 (1971).
- After the state made a prima facie showing of voluntariness, the court properly admitted the defendant's statement into evidence for the jury's consideration, and thereafter, the question of whether or not defendant's confession was freely and voluntarily given, without hope of benefit or fear of injury, became one of fact for determination by the jury. Simonton v. State, 151 Ga. App. 431, 260 S.E.2d 487 (1979).
- The state must prove by a preponderance of the evidence considering the totality of the circumstances that a statement given by an accused was voluntary. Lawrence v. State, 235 Ga. 216, 219 S.E.2d 101 (1975).
There is no burden on state officials to prevent an accused from talking about the incident in question if the accused wishes to do so. Simply stated, they must not interrogate but they need not refuse to listen. Zubiadul v. State, 193 Ga. App. 235, 387 S.E.2d 431 (1989).
- If the trial court concludes that the accused had freely and voluntarily waived the rights to silence and an attorney and had chosen to give a statement, the appellate court must accept those factual determinations by the trial court unless those findings are shown to be clearly erroneous. Lawrence v. State, 235 Ga. 216, 219 S.E.2d 101 (1975); Fowler v. State, 246 Ga. 256, 271 S.E.2d 168 (1980).
If in a hearing conducted outside the presence of the jury the judge determines as trier of fact the issues of voluntariness, truthfulness and comprehension of a confession, the judge's findings will not be disturbed in the absence of obvious error; the question is not whether Miranda warnings have been repeated on every occasion when the defendant has been examined but whether the defendant understands the defendant's rights and acts in accordance with such understanding. Duke v. State, 158 Ga. App. 71, 279 S.E.2d 476 (1981).
Trial court's findings that the defendant was advised of the defendant's Miranda rights, that the defendant voluntarily waived those rights, and that the defendant voluntarily made statements to the police were clearly erroneous as to statements the defendant made prior to being advised of the defendant's Miranda rights because the trial court did not find the facts necessary to support those findings. Reaves v. State, 284 Ga. 181, 664 S.E.2d 211 (2008).
- While the Constitution requires that the record indicate the voluntariness of any waiver of the rights of jury trial, confrontation, and nonself-incrimination, it does not require that a district judge go beyond these constitutional minima to ask the specific questions that F.R.Cr.P. 11(c)(3), 18 U.S.C. App., imposes as a prophylactic procedure. United States v. Caston, 615 F.2d 1111 (5th Cir.), cert. denied, 449 U.S. 831, 101 S. Ct. 99, 66 L. Ed. 2d 36 (1980).
- Where the case against the defendant is so overwhelming that any error in admitting an in-custody statement without first conducting a hearing out of the presence of the jury was harmless beyond a reasonable doubt, the admission of such statement in evidence without a hearing is not error. Harris v. Stynchcombe, 227 Ga. 763, 183 S.E.2d 205 (1971).
Absent proper objection and any evidence that defendant's in-custody statement is involuntary, its admission in evidence without a voluntariness hearing is not error. Harris v. Stynchcombe, 227 Ga. 763, 183 S.E.2d 205 (1971); Taylor v. State, 143 Ga. App. 881, 240 S.E.2d 236 (1977).
- If an objection to admission of a defendant's in-custody statement is on the ground of the alleged failure to apprise the defendant of the defendant's constitutional rights prior to taking the defendant's statement and does not reach the issue of the statement's voluntariness, the admission of such statement in evidence without a hearing as to its voluntariness is not error. Watson v. State, 227 Ga. 698, 182 S.E.2d 446 (1971).
- The state may not use evidence from a psychiatric interrogation in a capital sentencing proceeding unless the defendant received proper Miranda warnings prior to the examinations. A defense request for competency and sanity evaluations does not permit the examining psychiatrist to testify on the issue of future dangerousness upon which the defendant never consented to being examined. Buttrum v. Black, 721 F. Supp. 1268 (N.D. Ga. 1989), aff'd, 908 F.2d 695 (11th Cir. 1990).
Murder defendant's voluntary in-custody statements to the defendant's parent, made without the benefit of Miranda warnings, were admissible, because defendant spoke freely to the parent, apparently with full knowledge of the consequences of revealing where the victim's body had been left. Buttersworth v. State, 260 Ga. 795, 400 S.E.2d 908 (1991).
- When, in support of a claim of mental retardation or illness, a capital defendant presents expert psychiatric evidence, then, at the very least, the prosecution may rebut this presentation with evidence from the reports of the examination that the defendant relied upon; the defendant has no Fifth Amendment privilege against the introduction of this psychiatric testimony by the prosecution for such a limited rebuttal purpose. Stephens v. State, 270 Ga. 354, 509 S.E.2d 605 (1998).
- Where defense counsel arranged for the defendant's examination by a psychiatrist, the defendant's incriminating statement made to the psychiatrist was freely and voluntarily given; the defendant was given Miranda warning at the time of the arrest and it was not necessary to remind the defendant that the defendant need not answer any of the psychiatrist questions before the examination. Hammock v. State, 210 Ga. App. 513, 436 S.E.2d 571 (1993).
- A confession is a voluntary statement made by a person charged with the commission of a crime, wherein the accused acknowledges to be guilty of the offense charged. Such a statement will not suffice as a confession where only limited facts are admitted from which the jury would not be authorized to infer guilt. Jackson v. State, 225 Ga. 553, 170 S.E.2d 281 (1969).
Statement which does not confess guilt, though incriminating in nature, is an admission only. As such, it is not direct evidence of guilt, but only circumstantial evidence tending to prove the offense when considered with other evidence and may be used to justify a conviction. Thompson v. State, 151 Ga. App. 128, 258 S.E.2d 776 (1979).
- Defendant's statement to the police was presumptively valid because before making the statement, defendant was advised of defendant's Miranda rights, defendant understood those rights, defendant executed a waiver of rights form, and defendant did not invoke the right to have an attorney present during defendant's interview. Ray v. State, 273 Ga. App. 656, 615 S.E.2d 812 (2005).
- No law or authority requires a confession or admission to be reduced to writing. Hilliard v. State, 128 Ga. App. 157, 195 S.E.2d 772 (1973).
- The appropriate standard in judging voluntariness is whether the confession was extracted by any sort of threats or violence, or obtained by any direct or implied promises, however slight, or by the exertion of any improper influences. United States v. Morris, 491 F. Supp. 226 (S.D. Ga. 1980).
- There must be an evidentiary hearing to properly determine the voluntariness of a confession. State v. Watson, 143 Ga. App. 785, 240 S.E.2d 194 (1977), overruled on other grounds, Strickman v. State, 253 Ga. 287, 319 S.E.2d 864 (1984).
Both the defendant and the state are entitled to a resolution of voluntariness, which is resolved without receiving evidence or hearing testimony. State v. Watson, 143 Ga. App. 785, 240 S.E.2d 194 (1977), overruled on other grounds, Strickman v. State, 253 Ga. 287, 319 S.E.2d 864 (1984).
Accused is entitled to a hearing on voluntariness by a body other than the one trying guilt or innocence. James v. State, 223 Ga. 677, 157 S.E.2d 471 (1967); Hilliard v. State, 128 Ga. App. 157, 195 S.E.2d 772 (1973).
Voluntariness determination must be reliable and clear-cut, including the resolution of disputed facts upon which the voluntariness issue may depend. United States v. James, 590 F.2d 575 (5th Cir.), cert. denied, 442 U.S. 917, 99 S. Ct. 2836, 61 L. Ed. 2d 283 (1979).
- If the evidence concerning the voluntariness of a confession gives rise to a disputed issue on which the minds of reasonable persons might disagree, it is the duty of the trial judge to hold a preliminary hearing of evidence on the subject outside the presence of the jury at which both sides should be offered an opportunity to present evidence. It may then be offered for jury consideration after, and only after, a definite ruling by the trial judge that the judge finds the confession to have been voluntarily made. A mere ruling that the judge finds the issue in dispute and will let it go to the jury is not sufficient. Cardell v. State, 119 Ga. App. 848, 168 S.E.2d 889 (1969).
Proper analysis in determining the admissibility of a confession is threefold: first, whether the protective guidelines delineated in Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1960), to secure the privilege under U.S. Const., amend. 5 against self-incrimination were scrupulously honored; second, whether defendant voluntarily, knowingly and intelligently waived the rights enumerated in the Miranda warnings, and third, whether defendant's eventual confession was the result of a voluntary decision. United States v. Morris, 491 F. Supp. 226 (S.D. Ga. 1980).
One who suffers some mental or emotional impairment can give a valid confession. Corn v. State, 240 Ga. 130, 240 S.E.2d 694 (1977), cert. denied, 436 U.S. 914, 98 S. Ct. 2255, 56 L. Ed. 2d 415 (1978).
The fact that the defendant may have suffered from mental deficiency or that the defendant was illiterate did not render the defendant incapable of making a valid confession. Coverson v. State, 162 Ga. App. 497, 292 S.E.2d 196 (1982); Frymyer v. State, 179 Ga. App. 391, 346 S.E.2d 573 (1986).
- A mere showing that one who confessed to a crime may have suffered from some mental disability is not a sufficient basis upon which to exclude the statement. Corn v. State, 240 Ga. 130, 240 S.E.2d 694 (1977), cert. denied, 436 U.S. 914, 98 S. Ct. 2255, 56 L. Ed. 2d 415 (1978).
Admissions made by defendant after defendant had been read Miranda rights and had waived them did not violate U.S. Const., amend. 5 and Ga. Const. 1983, Art. I, Sec. I, Para. XVI, even if defendant was mentally ill as alleged; mental illness did not render a defendant incapable of making a voluntary statement. Lewis v. State, 279 Ga. 756, 620 S.E.2d 778 (2005), cert. denied, 547 U.S. 1116, 126 S. Ct. 1917, 164 L. Ed. 2d 671 (2006).
Mental ability and unfamiliarity with the criminal process are factors that weigh heavily against the voluntariness of a confession. Cooper v. Griffin, 455 F.2d 1142 (5th Cir. 1972).
Defendant's claim that a statement to police was involuntary due to drug and alcohol impairment was properly rejected as the defendant admitted during the interview to consuming only two tranquilizers due to nervousness, and the interviewers testified that the defendant did not appear to be impaired and communicated with them in a lucid and coherent manner. Carter v. State, 285 Ga. 394, 677 S.E.2d 71 (2009).
- The fact that there was evidence that a criminal defendant ranked in the lower three percent of population in range of intelligence did not render the defendant's voluntary statement invalid or involuntary. In determining this issue, the court must consider the totality of the circumstances and decide to the preponderance of the evidence. Kerr v. State, 194 Ga. App. 604, 391 S.E.2d 449 (1990).
- Considering the totality of the circumstances, a confession may be shown to be voluntary, even though made in the absence of counsel, after counsel has been retained or appointed. Pierce v. State, 235 Ga. 237, 219 S.E.2d 158 (1975).
- Because the evidence heard was sufficient to authorize the trial court to determine that the defendant was advised of the defendant's rights, that the defendant was not placed under any duress, that the defendant seemed to understand the defendant's rights, that the defendant was not under influence of drugs or alcohol and that the defendant seemed completely aware of what was going on around the defendant, the defendant's confession was voluntarily elicited and not in violation of U.S. Const., amend. 5 or U.S. Const., amend. 6. Simonton v. State, 151 Ga. App. 431, 260 S.E.2d 487 (1979).
Defendant's confessions to the murder of defendant's spouse made to police were voluntary: the defendant was 37 years old, could read and write, had graduated from high school, and was not under the influence of drugs or alcohol. Defendant accompanied police to the station voluntarily, was not handcuffed, and was free to leave at any time. Turner v. State, 287 Ga. 793, 700 S.E.2d 386 (2010).
Trial court did not err in concluding that the defendant made a knowing and voluntary waiver of the defendant's Miranda rights, despite the testimony of the defendant's expert witness to the contrary because: (1) the detective who interviewed the defendant testified that the defendant said that the defendant was not under the influence of alcohol or drugs; (2) the detective had experience in dealing with people under the influence of alcohol or drugs; (3) the detective saw no evidence that the defendant was under the influence of alcohol or drugs; (4) the defendant had no difficulty speaking or communicating; (5) the detective read the defendant the defendant's Miranda rights; and (6) the defendant said that the defendant understood each of the rights. Watkins v. State, 289 Ga. 359, 711 S.E.2d 655 (2011).
- To be valid, a waiver of the privilege against self-incrimination must be made voluntarily, and may not be presumed simply from the silence of the accused after warnings are given or simply from the fact that a confession was in fact eventually obtained. United States v. Daniel, 441 F.2d 374 (5th Cir. 1971); United States v. Morris, 491 F. Supp. 226 (S.D. Ga. 1980).
Use of threats or promises to coerce a criminal defendant to make a statement is contrary to O.C.G.A. § 24-3-50 and to U.S. Const., amend. 5. Young v. State, 243 Ga. 546, 255 S.E.2d 20 (1979).
Although the detective used descriptive language regarding how blood would be taken from defendant's arm, because it was common knowledge how a hospital drew blood from a patient, the detective's language did not convey any threat of bodily harm, and the detective's warning that the detective would arrest defendant if the defendant's blood matched that found at the victim's apartment was not a threat of personal harm and did not render defendant's statements to the detective involuntary; thus, defendant's statements to the detective were voluntary. Dyer v. State, 278 Ga. 656, 604 S.E.2d 756 (2004), cert. denied, 546 U.S. 845, 126 S. Ct. 95, 163 L. Ed. 2d 111 (2005).
Employment of falsehood by a police officer, where calculated only to elicit the truth, is not alone enough to render a confession inadmissible. Jacobs v. State, 133 Ga. App. 812, 212 S.E.2d 468 (1975).
- Confessions are not generally rendered inadmissible merely because they are obtained by fraud, deception, or trickery practiced upon the accused, provided the means employed are not calculated to procure an untrue statement and the confession is otherwise freely and voluntarily made. Moore v. Hopper, 389 F. Supp. 931 (M.D. Ga. 1974), aff'd, 523 F.2d 1053 (5th Cir. 1975).
In questioning a mature criminal suspect of normal intelligence, who has been fully advised of the suspect's constitutional rights, falsely advising the suspect that the murder weapon has been found is insufficient in and of itself to render the otherwise free and voluntary confession inadmissible. Moore v. Hopper, 389 F. Supp. 931 (M.D. Ga. 1974), aff'd, 523 F.2d 1053 (5th Cir. 1975).
The fact that state police falsely told the defendant, a mature individual of normal intelligence, during questioning of short duration that the defendant's associate had confessed, while relevant, was insufficient to make an otherwise voluntary confession inadmissible. Moore v. Hopper, 389 F. Supp. 931 (M.D. Ga. 1974), aff'd, 523 F.2d 1053 (5th Cir. 1975).
- Confession given less than four hours after the issuance of Miranda warnings was not inadmissible because of failure to reissue the warnings since the record reflected that the warnings given were complete and defendant understood them. Jarrell v. Balkcom, 735 F.2d 1242 (11th Cir. 1984), cert. denied, 471 U.S. 1103, 105 S. Ct. 2331, 85 L. Ed. 2d 848 (1985).
Trial court did not err in admitting statements made by defendant to police, wherein the defendant admitted involvement in a robbery, as defendant was Mirandized prior to the time that the defendant admitted the participation, and during a second interview a few days later, defendant was again properly Mirandized prior to giving a written statement admitting the involvement in the crime; Miranda warnings were not required when the officers conducted an initial noncustodial interview of defendant and further, the defendant did not confess to the crime at that time. Spradley v. State, 276 Ga. App. 842, 625 S.E.2d 106 (2005).
- Although the defendant made two statements without having been given Miranda warnings, because the defendant voluntarily came to the police station for the first statement, and there was no indication that the defendant was under suspicion for the crime, that the defendant or the police believed that the defendant would be detained, or that the investigation had focused on the defendant, and, as to the second statement, the defendant's counsel did not suggest that the officer had probable cause to arrest the defendant, and the defendant did not testify that the defendant believed the defendant under restraint in leaving, there was no indication that the police had the intention of doing more than following up on the defendant's previous statements, and they freely released the defendant at the end of the questioning on the defendant's promise that the defendant would post a bond as a material witness, there was no error in failing to exclude the statements as the defendant was not in custody when they were made. Davis v. Kemp, 829 F.2d 1522 (11th Cir. 1987), cert. denied, 485 U.S. 929, 108 S. Ct. 1099, 99 L. Ed. 2d 262 (1988).
The uncontroverted evidence in the case clearly authorized the trial court to conclude that defendant was not in custody at the time the defendant's statement was made to the police, because the officer stated that the officer did not threaten or coerce the defendant in any way, promise the defendant anything, or give the defendant any reason to believe that the defendant was not free to go at any time, and that the defendant appeared to be coherent and understand what was going on around the defendant. Harrell v. State, 204 Ga. App. 738, 420 S.E.2d 631 (1992).
Because a reasonable person in the defendant's shoes would not have believed that the defendant's freedom was curtailed in a significant way when the defendant was first approached by the arresting officer, told about a shooting incident, and asked if the defendant had a gun, there was no error in the admission of the gun into evidence, given that the compulsive atmosphere requiring Miranda warnings was not present. Quinn v. State, 209 Ga. App. 480, 433 S.E.2d 592 (1993).
- An officer's inquiry did not exceed the scope of initial investigation and the defendant was properly notified of the defendant's constitutional rights where pursuant to receiving a search warrant, the officer went to the defendant's house and asked the defendant if the defendant had any cocaine in the house. When defendant admitted that the defendant did and produced the drug, the officer immediately advised the defendant of the defendant's rights, whereupon the defendant made more statements. Ford v. State, 205 Ga. App. 12, 421 S.E.2d 294 (1992).
Only in-custody statements by the accused give rise to the issues of voluntariness and the Miranda warnings. Carroll v. State, 203 Ga. App. 22, 416 S.E.2d 354 (1992).
- A Department of Family and Children Services caseworker was not responsible for advising the defendant of the defendant's Miranda rights because caseworker was not a law enforcement officer. Rucker v. State, 203 Ga. App. 358, 416 S.E.2d 871 (1992).
- The court would reject the contention that the questioning of a suspect by a parent who is a law enforcement officer is a per se custodial interrogation since such a holding would require the court to presume that law enforcement parents would place their parent-child relationship subordinate to their employer-employee relationship and that a law enforcement parent would automatically coerce a confession from his or her own child; such an issue must be resolved on a case-by-case basis, by viewing the totality of the circumstances, in order to determine if the law enforcement parent was acting as a parent or as an agent of the state when speaking with his or her arrested child. Cook v. State, 270 Ga. 820, 514 S.E.2d 657 (1999), cert. denied, 528 U.S. 974, 120 S. Ct. 419, 145 L. Ed. 2d 327 (1999).
The trial court did not err by finding that a law enforcement officer acted as a parent and not as an agent of the state when the officer met with the officer's child, the defendant, who was a suspect in a murder investigation, where: (1) the parent was not part of the investigative team on the murders; (2) the defendant asked to see the parent at the same time the defendant requested an attorney; (3) the parent was not directed by any law enforcement agent connected with the defendant's case to speak to the defendant - the defendant made the request on the defendant's own initiative; (4) the parent's motive in speaking with the defendant was to urge the defendant to cooperate in the hope of getting a plea bargain; and (5) the interview involved hugging and crying by parent and child which is not typical of a police interrogation. Cook v. State, 270 Ga. 820, 514 S.E.2d 657 (1999), cert. denied, 528 U.S. 974, 120 S. Ct. 419, 145 L. Ed. 2d 327 (1999).
- Statement of police officer during course of questioning, that "I want you to tell us the truth," did not constitute such coercion or intimidation as to render confession involuntary. Hester v. State, 164 Ga. App. 871, 298 S.E.2d 292 (1982).
- The trial court erroneously admitted the defendant's confession, made after being advised of Miranda, as such was made in response to an unqualified false representation to the defendant that it would be kept confidential between the interviewing detective and the defendant. Spence v. State, 281 Ga. 697, 642 S.E.2d 856 (2007).
- A detective's warning to a defendant who had called the detective on several occasions to ask for information and assistance that the detective could not initiate any discussion with the defendant about any crimes could not have been reasonably calculated to elicit incriminating admissions of criminal activity. Housel v. State, 257 Ga. 115, 355 S.E.2d 651 (1987), cert. denied, 487 U.S. 1240, 108 S. Ct. 2915, 101 L. Ed. 2d 946 (1988).
- Although it would be better practice to keep the tape recorder running at all times during the interview with a prisoner, a gap in the tape does not prove lack of voluntariness of the prisoner's confession after the recorder was turned back on. Robinson v. State, 257 Ga. 194, 357 S.E.2d 74 (1987).
- A defendant's mental condition, by itself and apart from its relation to official coercion, should never dispose of an inquiry into constitutional voluntariness of statements made to law enforcement officers. Wilson v. State, 257 Ga. 444, 359 S.E.2d 891 (1987).
Fact that defendant's ability to read and write was limited did not make the confession inadmissible. The question of whether or not the defendant was capable or incapable of making a knowing and intelligent waiver of rights is to be answered by the trial judge and will be accepted by an appellate court unless clearly erroneous. Newsome v. State, 180 Ga. App. 243, 348 S.E.2d 759 (1986).
- Under Georgia statutes, those who have reached the age of 17 are no longer considered juveniles by Georgia's criminal justice system. Therefore, for purposes of Miranda, statements made by a person who is at least 17 years old are admissible if made voluntarily, without being induced by the hope of benefit or coerced by threats. Garlington v. State, 268 Ga. App. 264, 601 S.E.2d 793 (2004).
- Confession was not invalidated by fact that officers conducting interrogation gave defendant cigarettes and soft drinks. Coverson v. State, 162 Ga. App. 497, 292 S.E.2d 196 (1982).
- Factual and credibility determinations as to the voluntariness of a confession are normally made at a suppression hearing and must be accepted by appellate courts unless such determinations are clearly erroneous. Hudson v. State, 171 Ga. App. 181, 319 S.E.2d 28 (1984).
A federal habeas corpus petitioner is not precluded from claiming that the trial court failed to conduct an adequate hearing on the voluntariness of the petitioner's confession even though the petitioner had a full and fair opportunity to raise this claim in a state court proceeding. Jarrell v. Balkcom, 735 F.2d 1242 (11th Cir. 1984), cert. denied, 471 U.S. 1103, 105 S. Ct. 2331, 85 L. Ed. 2d 848 (1985).
- If a defendant initiates further discussions with the police and is not interrogated but volunteers a statement, the police may listen to that statement and use it against the defendant at trial, and because the record showed that the officer did not interrogate the defendant after the officer initiated discussions with the defendant but rather listened to the defendant's volunteered statement, the statement was admissible. Hopkins v. State, 263 Ga. 354, 434 S.E.2d 459 (1993).
Even though the defendant made a request for counsel, because the defendant initiated a conversation with police officers and intelligently waived the defendant's right to have counsel present, videotaping of the defendant's confession did not violate the defendant's fifth or sixth amendment rights. Mosher v. State, 268 Ga. 555, 491 S.E.2d 348 (1997).
- Statement of the defendant in a child molestation case was admissible despite the defendant's argument that the defendant was coaxed or cajoled into making the statement by being told that it would help the young victim and that it was therefore involuntary because it was made with the hope of benefiting the victim. Thomas v. State, 175 Ga. App. 873, 334 S.E.2d 903 (1985).
- The trial judge need not make formal findings of fact or write an opinion, but it must clearly appear from the record that the judge made a primary finding of voluntariness before the confession was introduced into evidence before the jury. Hilliard v. State, 128 Ga. App. 157, 195 S.E.2d 772 (1973).
- Although the judge need not make formal findings of fact or write an opinion, the judge's conclusion that the confession is voluntary must appear from the record with unmistakable clarity. If there has been no ruling on the issue of voluntariness made with the required unmistakable clarity, remand with instruction to conduct a further hearing and make a determination of voluntariness may be appropriate. Cofield v. State, 247 Ga. 98, 274 S.E.2d 530 (1981).
- Once the state has made a prima facie showing of voluntariness and the court has properly admitted a confession into evidence for the jury's consideration, the question of whether or not the confession was freely and voluntarily given, without hope of benefit or fear of injury, becomes one of fact for determination by the jury. Meyer v. State, 150 Ga. App. 613, 258 S.E.2d 217 (1979), cert. denied, 445 U.S. 952, 100 S. Ct. 1602, 63 L. Ed. 2d 788 (1980).
- The fact that a statement amounting to a confession by the defendant was unsigned and the fact that the stenographer who transcribed it was not present at the trial and did not testify as to its verity is not ground for excluding it from evidence. Freeman v. State, 230 Ga. 85, 195 S.E.2d 416 (1973).
- Once a trial judge has made a determination as to the voluntariness of a confession after a suppression hearing, such determination must be accepted by the appellate courts unless the judge's decision is clearly erroneous. Richardson v. State, 143 Ga. App. 846, 240 S.E.2d 217 (1977).
Factual and credibility determinations as to the voluntariness of a confession are normally made at a suppression hearing and must be accepted by appellate courts unless such determinations are clearly erroneous. Thomas v. State, 174 Ga. App. 761, 331 S.E.2d 627 (1985).
A trial court's findings as to factual determinations and credibility relating to the admission of in-custody statements will be upheld on appeal unless clearly erroneous. Denton v. State, 186 Ga. App. 864, 368 S.E.2d 811 (1988).
Introduction of challenged confession without a determination of its voluntariness by the trial judge after an adequate hearing is unconstitutional. Clark v. Smith, 224 Ga. 766, 164 S.E.2d 790 (1968), rev'd on other grounds, 403 U.S. 946, 91 S. Ct. 2279, 29 L. Ed. 2d 859 (1971); Strickland v. State, 226 Ga. 750, 177 S.E.2d 238 (1970).
- Because inadmissible evidence of a confession is offered and admitted, its admission constitutes reversible error, unless the jury is expressly instructed that the evidence is admitted for the purpose of impeachment only, whether or not a request to so charge be made, and whether or not any exceptions are made to the charge as given. Colbert v. State, 124 Ga. App. 283, 183 S.E.2d 476 (1971).
- A prior inconsistent statement of a criminal defendant is admissible for the limited purpose of impeaching trial testimony of the defendant even though the prior inconsistent statement would otherwise be inadmissible due to Miranda violations in defendant's trial. Hicks v. State, 256 Ga. 266, 347 S.E.2d 589 (1986).
- Since a prior statement is admissible for impeachment purposes even if in violation of Miranda, a Jackson v. Denno, 378 U.S. 368, 84 S. Ct. 1774, 12 L. Ed. 2d 908 hearing and finding of voluntariness is unnecessary. Tew v. State, 179 Ga. App. 369, 346 S.E.2d 833 (1986).
- Defendant's case was remanded for clarification as to the admissibility of any statements or confessions, where there was no actual ruling or finding in the record showing that the trial judge determined the voluntariness of defendant's confession. Hicks v. State, 255 Ga. 503, 340 S.E.2d 604, aff'd, 256 Ga. 266, 347 S.E.2d 589 (1986).
Initial burden rests with defendant to present evidence challenging the legality of the confession. United States v. Morris, 491 F. Supp. 226 (S.D. Ga. 1980).
Burden of proof as to voluntariness of a confession is upon the state. Cofield v. State, 247 Ga. 98, 274 S.E.2d 530 (1981).
- The standard the state is required to meet before the trial judge concerning the confession is to show that it was voluntary by a preponderance of the evidence considering the totality of the circumstances. Pierce v. State, 235 Ga. 237, 219 S.E.2d 158 (1975); Lee v. State, 154 Ga. App. 562, 269 S.E.2d 65 (1980); United States v. Morris, 491 F. Supp. 226 (S.D. Ga. 1980); Christian v. State, 190 Ga. App. 667, 379 S.E.2d 807 (1989).
- In order for a confession given after an illegal seizure to be admissible in evidence, the government must prove two things: that the confession is voluntary for purposes of U.S. Const., amend. 5, and that the confession was not the product of the illegal seizure. The same requirements apply where the evidence has been obtained by means of a consent to search rather than a confession. United States v. Robinson, 625 F.2d 1211 (5th Cir. 1980).
- Where the evidence bearing on the issue of whether or not the defendant was advised of the defendant's Miranda rights before making a custodial statement was in total conflict and it was apparent that the trial court simply believed the state's witnesses rather than appellant, this was not clearly erroneous. Hayes v. State, 203 Ga. App. 143, 416 S.E.2d 347 (1992), cert. denied, 203 Ga. App. 906, 416 S.E.2d 347 (1992).
- Under established law of this state it is not necessary to give a charge on the subject of the voluntariness of a confession, unless there is a specific request for it. Welch v. State, 235 Ga. 243, 219 S.E.2d 151 (1975).
- Unless clearly erroneous, a trial court's findings as to factual determinations and credibility relating to the admissibility of a confession will be upheld on appeal. Cofield v. State, 247 Ga. 98, 274 S.E.2d 530 (1981); Worthy v. State, 253 Ga. 661, 324 S.E.2d 431 (1985).
- Codefendant's statement to the police was properly admitted into evidence as, although the codefendant invoked the right to counsel, the codefendant voluntarily confessed to the police after being asked five times whether the codefendant was sure that the codefendant wanted to talk to the police. Smith v. State, 269 Ga. App. 133, 603 S.E.2d 445 (2004).
- Officer's statement to the defendant, given after the defendant invoked the right to counsel, in which the officer expressed the officer's knowledge of the request for a lawyer, urged the defendant not to say anything, and told the defendant that everyone should have the opportunity to bury their loved ones, as did the officer himself recently when the officer's father and brother died, was not calculated to procure an untrue statement, and because the defendant was not threatened with fear of injury nor promised hope of benefit, because there was no deception, nor did the police inject religion into the exchange, and because the officer's speech was not evidence of coercive police activity, which was a necessary predicate to the finding that the confession was involuntary, the police did not violate the defendant's Fifth Amendment right against coerced self-incrimination; therefore, while the defendant's statements themselves, in which the defendant confessed to killing the defendant's uncle and told the police where the defendant disposed of the body, were inadmissible based on the defendant's invocation of the right to counsel, the fruits of the statements were admissible. State v. Woods, 280 Ga. 758, 632 S.E.2d 654 (2006).
- Trial court properly refused to suppress a defendant's confession. The evidence enabled the trial court to find that the defendant's relative was present during most of the questioning, that the defendant was able to speak privately with the relative on occasion, that the defendant was not under the influence of drugs or alcohol, that the defendant was not threatened or offered any hope of benefits, and that the defendant was not handcuffed or otherwise restrained prior to confessing to participation in a shooting; furthermore, although the defendant claimed that the statement was not knowing and voluntary because of the defendant's limited intellect, the defendant was able to provide some involved explanations to police, a police interviewer saw no confusion about the defendant's rights, and the relative testified that the defendant never indicated that the defendant felt that the defendant had to talk to the police. Boseman v. State, 283 Ga. 355, 659 S.E.2d 364 (2008).
Defendant, aged 16 at the time of an interview in which defendant gave statements to police about a home invasion, failed to show that the statement was involuntary merely because it was given outside the presence of defendant's grandmother and uncle; defendant's relatives gave permission for defendant to be questioned, and the interview lasted only 35-45 minutes. Bowman v. State, 324 Ga. App. 734, 751 S.E.2d 532 (2013).
Defendant's statements during a second interview with police were voluntary and admissible as the investigator's statements did not concern a charge or sentence facing the defendant and did not constitute physical or mental torture. Turner v. State, 296 Ga. 394, 768 S.E.2d 458 (2015).
- After the investigating officer testified that defendant was not under arrest when the defendant gave the statement, that the defendant was nonetheless advised of defendant's Miranda rights and appeared to understand those rights, and that the defendant was not threatened, coerced, or promised anything in exchange for the defendant's statement, the district court's decision that the statement was voluntary was not clearly erroneous. Escutia v. State, 277 Ga. 400, 589 S.E.2d 66 (2003)(Unpublished).
Standard for determining the validity of guilty pleas is whether the plea represents a voluntary and intelligent choice among the alternative courses of action open to the defendant. Caldwell v. Beard, 232 Ga. 701, 208 S.E.2d 564 (1974).
- Before accepting a guilty plea, a trial judge must be convinced that the defendant's decision is voluntary in the sense that it is made knowingly, intelligently, and not as a result of a coercion by the state or anyone else. Brown v. Jernigan, 622 F.2d 914 (5th Cir.), cert. denied, 449 U.S. 958, 101 S. Ct. 368, 66 L. Ed. 2d 224 (1980).
- It is error, plain on the face of the record, for a trial judge to accept a defendant's guilty plea without an affirmative showing that it is intelligent and voluntary. Purvis v. Connell, 227 Ga. 764, 182 S.E.2d 892 (1971); Capps v. Ault, 229 Ga. 873, 195 S.E.2d 22 (1972).
An inmate did not make a guilty plea voluntarily, knowingly, and intelligently when the trial court did not advise the inmate of the federal privilege against compulsory self-incrimination, and trial counsel's testimony did not indicate the specific rights of which the inmate was advised. Arnold v. Howerton, 282 Ga. 66, 646 S.E.2d 75 (2007).
- If the record is silent on the question of whether or not the judge, who accepted the defendant's guilty plea, questioned the defendant to insure that the plea was knowingly and voluntarily entered, then there is no evidence in the record from which it can be determined whether the plea was valid and the sentence imposed is invalid and the detention is illegal. Capps v. Ault, 229 Ga. 873, 195 S.E.2d 22 (1972).
- Where the question of the voluntariness of a guilty plea is raised in a habeas corpus action, the court is authorized to and should either hold an evidentiary hearing to establish a record whereby it can be determined that a plea of guilty was freely and voluntarily entered or else rely on an adequate record established in a state habeas corpus hearing. Walker v. Caldwell, 476 F.2d 213 (5th Cir. 1973).
Habeas court did not err in denying a petition for a writ of habeas corpus because the wording in the waiver of rights form adequately conveyed to the petitioner in a manner reasonably intelligible to the petitioner the core principles of the privilege against compulsory self- incrimination guaranteed by the Fifth Amendment, and it was apparent to any reasonable person that the information conveyed about the right against self-incrimination was pertinent to a knowing and intelligent waiver of that right at trial; a criminal defendant could not reasonably confuse his or her right to remain silent at trial, which is waived as the result of a knowing and intelligent decision to plead guilty to a charged offense, with his or her understanding of that right as it may have been conveyed to him or her in the separate context of custodial police interrogation pursuant to Miranda. Brown v. State, 290 Ga. 50, 718 S.E.2d 1 (2011).
Habeas court erred in granting the defendant's petition as the defendant's guilty plea was voluntarily and knowingly entered because the defendant's decision to plead guilty was not prompted by the trial court's decision to disallow the testimony of the defendant's expert witness and the defendant's imminent trial as that circumstance and the unavoidable pressure it produced did not render the plea involuntary; the defendant was fully informed of the nature of the charges and the consequences of the plea; and the defendant was deemed competent to stand trial and was advised by competent counsel with regard to the decision to plead guilty. Shepard v. Williams, 299 Ga. 437, 788 S.E.2d 428 (2016).
- Although by pleading guilty the defendant waives the right to a jury trial, the privilege against self-incrimination, and the right of confrontation, neither the Constitution nor any rule of criminal procedure requires express articulation and specific waiver of these rights before a guilty plea may be accepted. Brown v. Jernigan, 622 F.2d 914 (5th Cir.), cert. denied, 449 U.S. 958, 101 S. Ct. 368, 66 L. Ed. 2d 224 (1980).
- When a person indicates a desire to enter a guilty plea, the duty of counsel is limited to ascertaining whether the decision so to plead is voluntarily and knowingly made. Brown v. Jernigan, 622 F.2d 914 (5th Cir.), cert. denied, 449 U.S. 958, 101 S. Ct. 368, 66 L. Ed. 2d 224 (1980).
- Mere speculation that an appellant inmate had been informed of all three of the Boykin v. Alabama, 395 U.S. 238, 23 L. Ed. 2d 274 (1969) rights the inmate would be waiving by entering a guilty plea was insufficient to support a finding that extrinsic evidence showed that the inmate knowingly, intelligently, and voluntarily waived the inmate's right to self-incrimination, particularly in light of the fact that defense counsel testified during a hearing on the inmate's habeas petition that counsel did not recall what rights counsel might have discussed with the inmate but that it was not counsel's practice to get into the specifics of any particular right being waived. Denson v. Frazier, 284 Ga. 858, 672 S.E.2d 625 (2009).
Ordinarily, the mere erroneous prediction of sentence by counsel does not make a guilty plea involuntary, especially when counsel is retained by the defendant rather than appointed by the court. Lambert v. United States, 392 F. Supp. 113 (N.D. Ga. 1975).
- The requirement that a guilty plea be intelligently made is not a requirement that all advice offered by the defendant's lawyer withstand retrospective examination in a post-conviction hearing. Lambert v. United States, 392 F. Supp. 113 (N.D. Ga. 1975).
- Because the defendant's sentence for aggravated assault was enhanced by the use of prior convictions based on guilty pleas during which the defendant was not asked required questions to determine the voluntariness of the pleas, the defendant's sentence had to be vacated and the matter remanded for resentencing, at which time the state would have the burden of proving the voluntariness of the guilty pleas before it could use the prior convictions to enhance the defendant's sentence. Carswell v. State, 263 Ga. App. 833, 589 S.E.2d 605 (2003).
- For those who plead guilty, that fact itself is a consideration in sentencing, a consideration that is not present when one is found guilty by a jury. Thompson v. State, 154 Ga. App. 704, 269 S.E.2d 474 (1980).
- A plea of guilty entered to avoid a possible death penalty is not for that reason "compelled" within the meaning of U.S. Const., amend. 5. Miller v. State, 237 Ga. 823, 229 S.E.2d 648 (1976).
- If a guilty plea is not intelligently and voluntarily entered, sentence imposed is invalid and detention is illegal. Capps v. Ault, 229 Ga. 873, 195 S.E.2d 22 (1972).
- Although defendant contended that the trial court erred by denying defendant's motion for an out-of-time appeal, and argued that the language used by the prosecutor in informing defendant of defendant's rights at the guilty plea hearing failed to convey to defendant that the defendant would be waiving defendant's privilege against compulsory self-incrimination, that contention was belied by the transcript, which revealed that, at the guilty plea hearing, the assistant district attorney adequately conveyed to appellant the core principles of the privilege against compulsory self-incrimination guaranteed by the Fifth Amendment. To the extent defendant distinguished the "right to remain silent" as separate from the privilege against self-incrimination, that right was not one of the enumerated rights that had to be explained to a defendant during a Boykin colloquy; moreover, nothing in Uniform Superior Court Rule 33.8, which set forth the procedure for trial courts to follow before accepting a plea of guilty, required a defendant to be informed of that right, and thus, defendant's guilty plea was not rendered invalid for that reason. Adams v. State, 285 Ga. 744, 683 S.E.2d 586 (2009).
- Defendant's conviction for malice murder, which was based upon a guilty plea, was reversed because the record did not show that the defendant was advised of the right against self-incrimination as required by Boykin; the state did not fulfill the state's duty to ensure that the defendant's guilty plea was constitutionally valid, the state apparently did not ensure that the defendant was advised of and had effective representation regarding the right to appeal the conviction, and the state did not litigate the merits of the defendant's guilty plea in the habeas corpus hearings since the record could have been expanded. Tyner v. State, 289 Ga. 592, 714 S.E.2d 577 (2011).
- United States Sentencing Guideline § 3 E1.1(b)(2), which instructs the court to reduce a defendant's sentence for "timely notifying authorities of his intention to plead guilty," is not unconstitutional on its face. United States v. McConaghy, 23 F.3d 351 (11th Cir. 1994).
- Prosecutor's comment on the defendant's failure to respond to a police officer's initial questioning prior to arrest was not improper where the defendant did not take the stand in the defendant's own defense and was not, therefore, improperly confronted with the defendant's prearrest silence. Edwards v. State, 219 Ga. App. 239, 464 S.E.2d 851 (1995).
Although the evidence was sufficient to show that defendant stalked the victim and obstructed an officer by fleeing in violation of O.C.G.A. §§ 16-5-91(a) and16-10-24(a), defendant had a constitutional right to stand silent during a police officer's questioning; as a result, the evidence was insufficient to support a conviction for obstruction of an officer based on defendant's silence. Johnson v. State, 264 Ga. App. 889, 592 S.E.2d 507 (2003).
- Georgia's Unified Appeal Procedure, O.C.G.A. § 17-10-36, setting forth rules promulgated by the Georgia Supreme Court that prescribed procedures to be utilized in death penalty cases by the trial court, defense counsel, and the prosecutor prior to, during, and after trial, did not violate a state death row inmate's right to silence by requiring the inmate to answer the court's questions about the inmate's satisfaction with defense counsel and the manner in which the inmate's defense was being conducted. Ford v. Schofield, 488 F. Supp. 2d 1258 (N.D. Ga. 2007), aff'd 546 F.3d 1326 (11th Cir. Ga. 2008).
- Evidence as to the defendant's silence at the time of the defendant's arrest should be excluded when objected to, since the defendant is then entitled to remain silent, and the prosecution may not use against the defendant the fact that the defendant stood mute or claimed the privilege. Lowe v. State, 136 Ga. App. 631, 222 S.E.2d 50 (1975); Smith v. State, 140 Ga. App. 385, 231 S.E.2d 83 (1976); Kitchens v. State, 150 Ga. App. 707, 258 S.E.2d 544 (1979).
- Testimony to the effect that a defendant made no statements to the police when arrested, violates the defendant's rights under U.S. Const., amend. 5. DeBerry v. State, 241 Ga. 204, 243 S.E.2d 864 (1978); Gibbs v. State, 217 Ga. App. 614, 458 S.E.2d 407 (1995).
- Because an agent's improper reference during testimony to the defendant's invocation of the right to remain silent was made gratuitously and not in response to a specific question, because the state did not highlight the statement for the jury or suggest any inference that could be drawn from the defendant's invocation, and, because after several more questions, the trial court removed the jury from the courtroom, but no further reference was made to the improper statement, it was unlikely that the statement had an impact on the verdict; the evidence was strong, when juxtaposed with the likely impact of the statement, and, thus, the improper statement was harmless beyond a reasonable doubt. Kania v. State, 280 Ga. App. 356, 634 S.E.2d 146 (2006).
Use of the accused's silence in the presence of law officers is prohibited for impeachment purposes. Clark v. State, 237 Ga. 901, 230 S.E.2d 277 (1976).
- The use for impeachment purposes of the accused's silence at the time of arrest, and after the defendant had received Miranda warnings which advised the defendant of the defendant's right under U.S. Const., amend. 5 to remain silent, violates the due process clause of the federal Constitution. Clark v. State, 237 Ga. 901, 230 S.E.2d 277 (1976).
Rule of Doyle v. Ohio, 426 U.S. 610 (1976) will not be applied retroactively to habeas corpus or other post appeal attack for a conviction prior to June 17, 1976, that date on which Doyle v. Ohio, was decided, which held that use of the accused's silence at time of arrest, after receiving Miranda warnings, violated the due process clause of U.S. Const., amend. 14. Clark v. State, 237 Ga. 901, 230 S.E.2d 277 (1976).
- To reverse a conviction, evidence which is introduced of the defendant's election to remain silent must point directly at the substance of the defendant's defense or otherwise substantially prejudice the defendant in the eyes of the jury. Duck v. State, 250 Ga. 592, 300 S.E.2d 121 (1983).
- Where a detective testified that after reading the defendant's rights the officer asked the defendant whether the defendant wanted to talk and the defendant checked the "No" box on the waiver form, the trial court did not err in allowing the detective to testify that the defendant invoked the constitutional right to remain silent given that the defendant was found inside the burglarized residence with items stolen from the residence in the defendant's pockets, and the defendant subsequently confessed to committing the burglary. Blige v. State, 203 Ga. App. 151, 416 S.E.2d 160 (1992).
Comment by the prosecutor cuts down on the privilege against self-incrimination by making its assertion costly. Gosha v. State, 239 Ga. 37, 235 S.E.2d 527 (1977).
Testimony that was an improper comment on a defendant's silence or failure to come forward was an impropriety but did not automatically require reversal. Bruce v. State, 268 Ga. App. 677, 603 S.E.2d 33 (2004).
- It is error for a prosecutor to comment to a jury about a criminal defendant's failure to take the witness stand in the defendant's own behalf, or the defendant's failure to answer a particular question which would violate the defendant's right under U.S. Const., amend. 5 against self-incrimination. Sharp v. United States, 410 F.2d 969 (5th Cir. 1969).
In a case in which ineffective assistance of counsel was claimed due to counsel's failure to object to a comment in the prosecutor's closing argument that the defendant could have given the defendant's version of the facts of a domestic dispute to the police, the appellate court improperly relied on exclusions to comments on a defendant's silence in Morrison v. State, 554 S.E.2d 190 (2001); the court overruled Morrison based on the bright-line rule in Mallory v. State, 409 S.E.2d 839 (1991), that, with reference to former O.C.G.A. § 24-3-36 (see now O.C.G.A. § 24-8-801), comment upon a defendant's silence or failure to come forward was far more prejudicial than probative. Reynolds v. State, 285 Ga. 70, 673 S.E.2d 854 (2009).
Prosecution is not permitted to comment on defendant's failure to testify. Gosha v. State, 239 Ga. 37, 235 S.E.2d 527 (1977); United States v. Chandler, 586 F.2d 593 (5th Cir. 1978), cert. denied, 440 U.S. 927, 99 S. Ct. 1262, 59 L. Ed. 2d 483 (1979).
- Prosecutor's assertion that "not one witness came in here to dispute anything that the state's witnesses said" was commenting on defendant's failure to present evidence, not defendant's right to remain silent. Brown v. State, 278 Ga. 544, 604 S.E.2d 503 (2004).
Remarks that do not imply to the jury that defendant's failure to testify should be construed against the defendant do not constitute cause for a new trial. See Lackey v. State, 135 Ga. App. 632, 218 S.E.2d 648 (1975).
- If the defendant testifies in the defendant's own behalf as to sentence, but refuses to respond to the state's cross-examination, asserting the defendant's right under U.S. Const., amend. 5, the state's comment on this is not an instance in which the state commented on a failure of a defendant to testify in the defendant's own behalf. Brown v. State, 247 Ga. 298, 275 S.E.2d 52, cert. denied, 454 U.S. 882, 102 S. Ct. 366, 70 L. Ed. 2d 192 (1981).
- Prosecutor's comment on the defendant's failure to testify violated the defendant's Fifth Amendment right but did not warrant habeas corpus relief, because it could be said beyond a reasonable doubt, that absent the unconstitutional comment, given the strong evidence of the state, the jury would have found defendant guilty. Buttrum v. Black, 721 F. Supp. 1268 (N.D. Ga. 1989), aff'd, 908 F.2d 695 (11th Cir. 1990).
- A detective's testifying that the defendant refused to give a written statement and to sign the detective's written memorandum of the defendant's oral statement does not constitute an improper comment on the defendant's right to remain silent. Bethea v. State, 251 Ga. 328, 304 S.E.2d 713 (1983).
- Prosecutor's argument in response to defendant's argument about the defendant's pretrial statements did not constitute an improper comment about defendant's failure to testify, and did not infringe on the defendant's Fifth Amendment right against self-incrimination. Christenson v. State, 261 Ga. 80, 402 S.E.2d 41 (1991), cert. denied, 502 U.S. 855, 112 S. Ct. 166, 116 L. Ed. 2d 130 (1991).
Prosecutor's reference to defendant's right to have psychiatrist not testify was not a violation of defendant's right against self-incrimination. Willett v. State, 223 Ga. App. 866, 479 S.E.2d 132 (1996).
- Prosecuting attorney's statements during closing argument that the defense presented no evidence to rebut the proof adduced by the state did not constitute reversible error under the self-incrimination clause because the state did not comment that the defendant could have denied, explained, or otherwise disputed the state's case against the defendant, but rather merely commented on the failure to present any evidence in defense. Smith v. State, 170 Ga. App. 673, 317 S.E.2d 626 (1984).
Prosecutor's statement during closing argument that "We don't know which the defendant had which gun. The only person who can tell us that is [the defendant]" was permissible because, although an indirect reference to defendant's silence, it was not manifestly intended to be, nor would a jury construe it as such, a comment on silence, but rather was an objective evaluation of the state of the evidence when taken in context. Solomon v. Kemp, 735 F.2d 395 (11th Cir. 1984), cert. denied, 469 U.S. 1181, 105 S. Ct. 940, 83 L. Ed. 2d 952 (1985).
To reverse for improper comment by the prosecutor, a court must find one of two things: that the prosecutor's manifest intention was to comment upon the accused's failure to testify or that the remark was of such character that the jury would naturally and necessarily take it to be a comment on the failure of the accused to testify. However, if there is another equally plausible explanation for the prosecutor's statement, a court cannot conclude that it was intended to comment on defendant's failure to testify or that the jury would naturally take it to be such a comment. Day v. State, 203 Ga. App. 186, 416 S.E.2d 548 (1992).
Although the defendant did not testify at trial and contended that under the circumstances a portion of the state's closing argument could be viewed as an improper comment on the defendant's failure to do so, the jury could reasonably have interpreted the state's attorney's comment as a reference to the omission of certain evidence rather than as a reference to the defendant's failure to testify. Day v. State, 203 Ga. App. 186, 416 S.E.2d 548 (1992).
Prosecutor's argument that defendant had shown no remorse was not improper comment on the right to remain silent. Williams v. State, 258 Ga. 281, 368 S.E.2d 742 (1988), cert. denied, 492 U.S. 925, 109 S. Ct. 3261, 106 L. Ed. 2d 606 (1989).
State did not engage in prosecutorial misconduct when it commented on the defendant's lack of remorse as the state's comments were aimed at the defendant's lack of emotion, not the defendant's right to remain silent; the state also did not violate the golden rule by inviting the jurors to "speak for the victim by letting her killer know that you're not going to let him get away with it" as the state did not ask the jurors to put themselves in the victim's place at the time the crime was committed. Watson v. State, 278 Ga. 763, 604 S.E.2d 804 (2004).
- Because, in a drug prosecution, the prosecution presented, in its case in chief, evidence that the defendant had failed to respond to a request by the insurance company for a statement as to the defendant's involvement in the use and damage of an aircraft involved in the alleged drug smuggling, its introduction did not violate the self-incrimination and due process clauses of U.S. Const., amend. 5 even though the defendant did not intend to testify on the defendant's own behalf and objected that the evidence improperly enabled the prosecution to comment on the defendant's silence and allowed the jury to infer guilt therefrom. United States v. Nabors, 707 F.2d 1294 (11th Cir. 1983), cert. denied, 465 U.S. 1021, 104 S. Ct. 1271, 79 L. Ed. 2d 677 (1984).
- Defendant's Fifth Amendment rights were not violated by the admission of a police officer's testimony that did not focus on the defendant's silence or suggest that the defendant had asserted the right to remain silent, but simply related, in the course of a lengthy narrative, that the defendant requested an attorney. Duck v. State, 250 Ga. 592, 300 S.E.2d 121 (1983).
- The right to comment on a codefendants' silence exists only if defense counsel has a clear duty to make the argument in order to avoid prejudicing defense counsel's client; the duty does not arise unless the defenses set forth by the codefendants are truly antagonistic, and then the appropriate remedy is severance. United States v. Johnson, 713 F.2d 633 (11th Cir. 1983), cert. denied, 465 U.S. 1081, 104 S. Ct. 1447, 79 L. Ed. 2d 766 (1984).
A defendant's attorney has a clear duty to comment on a codefendant's silence only if those comments are necessary to avoid real prejudice to the defendant. Real prejudice occurs only if the defenses offered by the defendant and the codefendant are antagonistic and mutually exclusive. If the defendants' defenses are not sufficiently antagonistic to require severance, a defendant's attorney does not need to comment on the codefendant's silence to avoid real prejudice to the defendant and the district court does not abuse its discretion in denying the defendant's motion for severance. United States v. Graziano, 710 F.2d 691 (11th Cir. 1983), cert. denied, 466 U.S. 937, 104 S. Ct. 1910, 80 L. Ed. 2d 459 (1984).
Fact-finder's consideration of the accused's demeanor in reaction to the testimony of others, even when the accused does not take the stand, does not violate the Fifth Amendment to the United States Constitution. In re M.E.H., 180 Ga. App. 591, 349 S.E.2d 814 (1986).
Comments based on courtroom observation of a defendant's demeanor do not infringe on the defendant's Fifth Amendment rights. Christenson v. State, 261 Ga. 80, 402 S.E.2d 41 (1991), cert. denied, 502 U.S. 855, 112 S. Ct. 166, 116 L. Ed. 2d 130 (1991).
- Because the defendant made a closing argument in the defendant's own behalf, during which the defendant made certain unsworn statements, at which point the judge interrupted to instruct the jury that the defendant, having not testified during the trial, cannot testify now, such remarks did not infringe the defendant's right to remain silent. Green v. Zant, 738 F.2d 1529 (11th Cir.), cert. denied, 469 U.S. 1098, 105 S. Ct. 607, 83 L. Ed. 2d 716 (1984).
- There is no ironclad rule that any reference, even unwitting or harmless, to an accused's silence at time of arrest requires the grant of a new trial. Smith v. State, 140 Ga. App. 385, 231 S.E.2d 83 (1976).
- An instruction stating that guilt of the defendant can be inferred from possession of recently stolen property unaccounted for by the defendant cannot properly be construed as a comment on the defendant's failure to testify. Horton v. State, 228 Ga. 690, 187 S.E.2d 677 (1972).
- Where during deliberations a juror sent a note asking for an answer from defendant about why the defendant was on the burglary victim's property on the morning of the burglary, the failure to recharge the jury that the defendant was not required to testify and that the jury should not make any adverse inferences against defendant for not testifying did not violate defendant's right against self-incrimination where neither the jury nor defendant requested such a recharge. Lovelace v. State, 262 Ga. App. 690, 586 S.E.2d 386 (2003).
Prosecutor's statement that only two people knew what went on in the room where an assault occurred, the victim and defendant, did not violate defendant's rights against self-incrimination. Neal v. State, 198 Ga. App. 518, 402 S.E.2d 114 (1991).
- Adverse inference may be drawn against a party in a civil action when the party refuses to testify in response to probative evidence offered against them. This adverse inference, however, is insufficient by itself to allow summary judgment to be entered against a party. However the additional testimony and affidavits of the court may authorize the granting of summary judgment as a matter of law. SEC v. Scherm, 854 F. Supp. 900 (N.D. Ga. 1993).
- To determine whether a prosecutor intended to comment on a defendant's failure to testify, courts must examine the comment in context, and merely describing the circumstantial nature of the case did not violate the defendant's Fifth Amendment right to remain silent. Baxter v. Thomas, 45 F.3d 1501 (11th Cir.), cert. denied, 516 U.S. 946, 116 S. Ct. 385, 133 L. Ed. 2d 307 (1995).
- State did not improperly comment on the defendant's pre-arrest right to remain silent because informing the jury of the defendant's termination of a custodial interview and invocation of the right to counsel did not amount to an improper comment on the right to remain silent warranting the reversal of the defendant's conviction. McClarin v. State, 289 Ga. 180, 710 S.E.2d 120 (2011), cert. denied, 132 S. Ct. 1004, 181 L. Ed. 2d 745 (2012).
- Where a witness testifies under oath that the witness' answer to any question asked of the witness would incriminate the witness and comes within the constitutional immunities guaranteed to the witness, the court can demand no further testimony of the fact. Interstate Life & Accident Ins. Co. v. Wilmont, 123 Ga. App. 337, 180 S.E.2d 913 (1971).
Where a defense witness states the witness' name and thereafter claims the Fifth Amendment, the trial court does not commit error in denying the defendant's motion to require the state to disclose the witness's criminal record to impeach the witness. Howard v. State, 251 Ga. 586, 308 S.E.2d 167 (1983).
Testimony of the defendant's half-sibling that the half-sibling, rather than the defendant, executed a robbery was properly rejected upon half-sibling's subsequent invocation of the half-sibling's Fifth Amendment rights. Kelly v. State, 209 Ga. App. 789, 434 S.E.2d 743 (1993).
In a prosecution for stalking, it was not error for the trial court to refuse to compel the complaining witness to answer a question on cross-examination when the witness invoked the privilege against selfincrimination. Robinson v. State, 216 Ga. App. 816, 456 S.E.2d 68 (1995).
Trial court did not engage in the required analysis for a witness asserting a Fifth Amendment privilege, but merely declared that answering the questions concerning knowledge of the court's order regarding removing a child from a parent's home would not incriminate the witness; at a minimum, such knowledge would establish a link in the chain of evidence needed to prove the witness was in contempt of that order and the trial court's finding of contempt based on the witness's refusal to answer the question was improper. In re Tidwell, 279 Ga. App. 734, 632 S.E.2d 690 (2006).
Trial court did not err under O.C.G.A. § 17-8-4 in denying a defendant's motion to sever the defendant's trial for cruelty to a child and other offenses from that of a codefendant because the defendant did not establish that, if severance were granted, the defendant would have been able to call the codefendant to testify about a letter without the codefendant invoking rights under the Fifth Amendment to the United States Constitution; even if such questioning could have been conducted, the defendant did not show harm caused by its absence because it was uncontroverted that the codefendant wrote the letter at issue and there was no showing that the codefendant's testimony would have exculpated the defendant. White v. State, 281 Ga. 276, 637 S.E.2d 645 (2006).
- In a criminal prosecution, where the state's attorney ceased the questioning of a witness immediately when it became clear that the witness was invoking the witness' Fifth Amendment right, it was not necessary for the court to hold a hearing as to whether testimony the state sought to elicit would incriminate the witness. Bolar v. State, 216 Ga. App. 195, 453 S.E.2d 790 (1995).
- The Fifth Amendment privilege cannot be invoked to oppose discovery and then tossed aside to support a party's assertions. Therefore, the defendant may not use any evidence that the defendant has withheld by the defendant's invocation of the defendant's testimonial privilege but the defendant is free, of course, to use any other outside discovered evidence. SEC v. Zimmerman, 854 F. Supp. 896 (N.D. Ga. 1993).
- No cross-examination of a criminal defendant may take place unless the defendant first consents thereto. Wright v. State, 113 Ga. App. 436, 148 S.E.2d 333 (1966).
- Once a defendant voluntarily takes the witness stand in the defendant's own defense, the defendant waives the defendant's right under U.S. Const., amend. 5 and becomes obligated, as any other witness, to answer all relevant questions. United States v. Brannon, 546 F.2d 1242 (5th Cir. 1977).
Having elected to testify, a defendant becomes obligated on cross-examination to answer all proper and relevant questions. Dickey v. State, 240 Ga. 634, 242 S.E.2d 55 (1978).
A defendant who takes the stand waives the privilege under U.S. Const., amend. 5 against self-incrimination at least to the extent of cross-examination relevant to the issues raised by the defendant's testimony. United States v. Dooley, 587 F.2d 201 (5th Cir.), cert. denied, 440 U.S. 949, 99 S. Ct. 1430, 59 L. Ed. 2d 639 (1979).
The defendant in a criminal case who elects to take the stand in the defendant's own defense is subject to cross-examination and impeachment pursuant to O.C.G.A. § 24-9-82. Norwood v. State, 202 Ga. App. 782, 415 S.E.2d 521 (1992).
Because, during direct examination, the defendant voluntarily testified about the defendant's statements to the police, the defendant waived the defendant's privilege against self-incrimination, and the state could properly question the defendant about the statements on cross-examination. Fairbanks v. State, 225 Ga. App. 666, 484 S.E.2d 693 (1997).
- A defendant in a criminal case who voluntarily testifies in the defendant's own behalf, waives completely the defendant's privilege under U.S. Const., amend. 5 and Ga. Const. 1976, Art. I, Sec. I, Para. XIII (see Ga. Const. 1983, Art. I, Sec. I, Para. XVI). Furthermore, when a defendant voluntarily takes the stand in the defendant's own behalf and testifies as to the defendant's guilt or innocence as to a particular offense, the defendant's waiver is not partial. Having once cast aside the cloak of immunity, the defendant may not resume it at will, whenever cross-examination may be inconvenient or embarrassing. Leonard v. State, 146 Ga. App. 439, 246 S.E.2d 450 (1978).
An accused has the choice, after weighing the advantage of the privilege against self-incrimination against the advantage of putting forward the defendant's version of the facts and the defendant's reliability as a witness, not to testify at all. The defendant cannot reasonably claim that U.S. Const., amend. 5 gives the defendant not only this choice but also, if the defendant elects to testify, an immunity from cross-examination on the matters the defendant has put in dispute. Dickey v. State, 240 Ga. 634, 242 S.E.2d 55 (1978).
- If a defendant is fully apprised of the rights under U.S. Const., amend. 5 by the trial judge and by the defendant's attorney prior to the defendant's taking the stand for cross-examination, even where the defendant is cross-examined before the defendant testifies, any objection to the procedure must be considered as waived at the trial. Everett v. State, 238 Ga. 80, 230 S.E.2d 882 (1976).
- Prosecution would have had to volunteer the existence of testimony by codefendant that defendant was innocent of the arson if codefendant's counsel refused to impart information to defendant's counsel because codefendant claimed the protection of the Fifth Amendment and such statement on codefendant's willingness to testify were not otherwise discoverable by defendant's counsel. United States v. Yizar, 956 F.2d 230 (11th Cir. 1992).
- If it appears that a witness (other than the defendant) intends to claim the privilege as to essentially all questions, the court may, in its discretion, refuse to allow the witness to take the stand. King v. State, 202 Ga. App. 817, 415 S.E.2d 684, cert. denied, 202 Ga. App. 906, 415 S.E.2d 684 (1992).
- When a defendant gives one version of the defendant's location for the time of the offense to the police and then gives the jury a different version, the earlier statement of the defendant is admissible for purposes of impeachment of the defendant's sworn testimony at trial. Wilson v. State, 145 Ga. App. 315, 244 S.E.2d 355 (1978).
- A criminal defendant who takes the stand to testify in the defendant's own behalf can be cross-examined and impeached as any other witness, unless under the particular circumstances of the case specific questions should be excluded because their probative value on the issue of the defendant's credibility is so negligible as to be far outweighed by their possible impermissible impact on the jury. Sharp v. United States, 410 F.2d 969 (5th Cir. 1969).
- Cross-examination of a witness is not unreasonably limited by the witness' refusal under U.S. Const., amend. 5 to tell where the witness obtained the goods which the witness sold to the defendant, since the source of the goods is irrelevant to a charge of passing counterfeit currency, for which the defendant was being tried. United States v. Ginn, 455 F.2d 980 (5th Cir. 1972).
- If the defendant does not invoke the right against self-incrimination while testifying, the defendant has no right to invoke this privilege on cross-examination in same area, nor does the defendant's codefendant have standing to invoke this privilege, however, incriminating the defendant's codefendant's testimony may be. Sullivan v. State, 144 Ga. App. 256, 241 S.E.2d 42 (1977).
- If the privilege against self-incrimination has been invoked by a witness as to purely collateral matters bearing on witness credibility, there is little danger of prejudice to the defendant and, therefore, the witness' testimony may be used against the defendant. Emmett v. State, 232 Ga. 110, 205 S.E.2d 231 (1974); Buford v. State, 162 Ga. App. 498, 291 S.E.2d 256 (1982).
- If a witness by invoking the privilege of self-incrimination precludes inquiry into the details of the witness' direct testimony, there may be a substantial danger of prejudice because the defense is deprived of the right to test the truth of the witness' direct testimony and, therefore, that witness' testimony should be stricken in whole or in part. Emmett v. State, 232 Ga. 110, 205 S.E.2d 231 (1974).
- Because the state's evidence established a prima facie case of justification through the defendant's statement, in which the defendant claimed to have shot the victim out of self-defense, it was error to refuse to admit evidence of violence by the victim toward a third party unless the defendant testified. The error, which implicated the Fifth Amendment, was not harmless because when the defendant took the stand, the state was able on cross-examination to undermine the defense by showing that the defendant had been able to disarm the victim in the past by using the defendant's military training. Williams v. State, 298 Ga. App. 151, 679 S.E.2d 377 (2009).
- If a witness validly claims the privilege against self-incrimination, the defendant's only relief is a motion to strike that portion of the direct testimony with regard to which the confrontation right under U.S. Const., amend. 6 is lost. United States v. Brown, 634 F.2d 819 (5th Cir. 1981).
- Where the defendant testifies in the defendant's own behalf, there is no violation of U.S. Const., amend. 5 when the district attorney comments upon the defendant's failure, when testifying, to explain or deny the testimony of particular witnesses. Gosha v. State, 239 Ga. 37, 235 S.E.2d 527 (1977).
O.C.G.A. § 17-7-28 and former O.C.G.A. § 24-9-20 (see now O.C.G.A. § 24-5-506), regarding comment on the defendant's failure to testify, are applicable only where the defendant fails to testify. Gosha v. State, 239 Ga. 37, 235 S.E.2d 527 (1977).
- In deciding whether to invoke the protection of U.S. Const., amend. 5, a defendant in a civil action is not entitled to the advice of the defendant's attorney on a question-by-question basis while testifying, once having been advised of the scope of the privilege and the manner of its invocation. Page v. Page, 235 Ga. 131, 218 S.E.2d 859 (1975).
- Because the defendant did not testify and was not cross-examined, there was no harm in the trial court's failure to advise the defendant of the defendant's right not to be compelled to testify under oath. Coonce v. State, 171 Ga. App. 20, 318 S.E.2d 763 (1984).
- It was not an abuse of the defendant's constitutional right against self-incrimination for the trial court to permit an expert witness to testify that the atomic absorption test for gunpowder that was performed on defendant's hand was verifiably certain and for the trial court to admit the test results into evidence. Jones v. State, 277 Ga. 36, 586 S.E.2d 224 (2003).
Compelled pretrial psychiatric and psychological examinations do not violate the right against self-incrimination where the defendant moves to obtain a private examination and the state examines the defendant only to be in position to rebut, should the defendant choose to present testimony concerning the defendant's private examination. Godfrey v. Francis, 251 Ga. 652, 308 S.E.2d 806 (1983), cert. denied, 466 U.S. 945, 104 S. Ct. 1930, 80 L. Ed. 2d 475 (1984), cert. dismissed, 487 U.S. 1264, 109 S. Ct. 27, 101 L. Ed. 2d 977 (1988).
State is bound to inform prospective witness of possible consequences of admitting under oath that the witness sold drugs, instead of the defendant who was jointly indicted with the witness for violating the Controlled Substances Act (21 U.S.C. § 801 et seq.). This duty included notifying the witness that the criminal law would be enforced to the full extent against those who violated it. Murray v. State, 157 Ga. App. 596, 278 S.E.2d 2 (1981).
- The trial court's instructions to the witness are not erroneous and prejudicial where the trial court advises such witness of the witness' rights under U.S. Const., amend. 5 and leaves the decision of whether or not to invoke the privilege entirely to the witness and, where the trial court's instructions did not have the effect of advising the prospective witness that the witness did not have to testify, but rather, did have the effect of advising the witness that the witness had the right not to answer any question that might incriminate the witness. Murray v. State, 157 Ga. App. 596, 278 S.E.2d 2 (1981).
- Defendant did not have the right to call a witness in order to have the witness assert the Fifth Amendment privilege in the presence of the jury. Sweat v. State, 226 Ga. App. 88, 485 S.E.2d 259 (1997).
- The defendant is not unfairly deprived of favorable testimony when the trial court, at the state's suggestion, advises an unrepresented codefendant of the codefendant's constitutional rights as a witness and, after the trial court advises the codefendant of those rights and appoints counsel for the codefendant, the codefendant chooses not to testify. Neither the trial court, the state, nor a codefendant can compel another codefendant to testify in favor of a calling codefendant, for to do so violates those very constitutional protections. In re J.S.S., 168 Ga. App. 340, 308 S.E.2d 855 (1983).
Once-unavailable testimony of codefendant who took Fifth Amendment does not constitute "newly discovered" evidence within the meaning of Rule 33 of the Federal Rules of Criminal Procedure. First, the substance of the testimony is not in fact new evidence, since it was always known by the defendant seeking a retrial. Second, and equally important, the once-unavailable defendant who now seeks to exculpate the codefendant lacks credibility, since the defendant has nothing to lose by testifying untruthfully regarding the alleged innocence of the defendant seeking a retrial. United States v. Carlin, 573 F. Supp. 44 (N.D. Ga. 1983), aff'd, 734 F.2d 1480 (11th Cir. 1984).
Rights against self-incrimination were not violated by admission of psychiatrist's testimony relating solely to the defendant's ability to understand the defendant's rights. Marlowe v. State, 187 Ga. App. 255, 370 S.E.2d 20 (1988).
- In armed robbery prosecution, the trial judge's asking the defendant what comments, if any, the defendant made in response to a report the defendant was driving a stolen car, after the defendant had been arrested and warned of the defendant's Miranda rights, exceeded constitutional bounds and required reversal. Phillips v. State, 165 Ga. App. 235, 299 S.E.2d 138 (1983).
- It is the better practice for the trial court expressly to explain to the jury the limited purpose for the admission of prior inconsistent statements, at the time such testimony is admitted, but there is no authority which holds that the failure so to instruct at that particular time in the trial is reversible error. Moore v. State, 160 Ga. App. 870, 288 S.E.2d 585 (1982).
Where prior inconsistent statements are used to impeach trial statements, a limiting instruction is required even absent a request. The significance of not so limiting the jury's consideration would be to allow a Miranda-violating statement to be used as substantive evidence. However, where the statement is found by the trial court not to have been obtained in violation of the defendant's rights against self-incrimination, the court need not give a limiting instruction absent defendant's request. Fussell v. State, 187 Ga. App. 134, 369 S.E.2d 511 (1988).
- Use of the defendant's post-arrest silence to impeach the defendant's testimony, even assuming that such use was error, was harmless considering the strength of the evidence supporting the conviction. See Bennett v. State, 254 Ga. 162, 326 S.E.2d 438 (1985).
Codefendant who had entered a guilty plea and had invoked the Fifth Amendment right against self-incrimination was not required to testify, where the codefendant's motion to set aside the codefendant's guilty plea and the codefendant's motion for a new trial were pending before the court. Duvall v. State, 259 Ga. 801, 387 S.E.2d 880 (1990).
- Defendant's fifth and sixth amendment rights were not violated by requiring the defendant to testify about the sound of the defendant's name. Werts v. State, 196 Ga. App. 452, 395 S.E.2d 922 (1990).
Defendant who entered plea of nolo contendre could not be forced to testify in the sentencing hearing. Fuller v. State, 244 Ga. App. 618, 536 S.E.2d 296 (2000).
- Any error in allowing a state's witness to invoke U.S. Const., amend. 5 in regard to a statement the witness had made to a security officer about shoplifting was harmless, because the officer was questioned extensively about the statement. Jenkins v. State, 260 Ga. 231, 391 S.E.2d 397 (1990).
- Defendant's constitutional right to testify in the defendant's own behalf was not violated. The trial court established that the defendant knew that the defendant had the right to testify if the defendant wanted to but elected not to after consulting with defense counsel. Branford v. State, 299 Ga. App. 890, 685 S.E.2d 731 (2009).
Defendant who gives testimony under a promise of immunity is entitled to the exclusion of any use of that testimony against the defendant. Corson v. Hames, 239 Ga. 534, 238 S.E.2d 75 (1977); United States v. Weiss, 599 F.2d 730 (5th Cir. 1979).
- Trial court's grant of an order of immunity pursuant to O.C.G.A. § 24-9-28(a) 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).
- A person may decline to answer self-incriminating questions based on the constitutional privilege against self-incrimination until it is shown that the person has been granted an immunity that is as extensive in scope as the privilege it replaces. Powell v. Allen, 140 Ga. App. 186, 230 S.E.2d 343 (1976), overruled on other grounds, Corson v. Hames, 141 Ga. App. 751, 234 S.E.2d 412, overruled on other grounds, Brooks v. State, 238 Ga. 435, 233 S.E.2d 208 (1977).
Immunity granted in exchange for compelled testimony must be sufficiently broad to protect witness to extent of the Fifth Amendment privilege against self-incrimination. State v. Hanson, 249 Ga. 739, 295 S.E.2d 297 (1982).
At minimum, the state must grant unconditional use and derivative use immunity to a witness in order to remove the privilege not to testify in a self-incriminating manner. Corson v. Hames, 239 Ga. 534, 238 S.E.2d 75 (1977).
State may not condition immunity given in an order to compel testimony on "full," "complete," and "truthful" testimony "in every particular." Corson v. Hames, 239 Ga. 534, 238 S.E.2d 75 (1977).
No common-law transactional immunity exists in Georgia in the sense of the protection of a witness who gives up a valuable right. State v. Hanson, 249 Ga. 739, 295 S.E.2d 297 (1982).
- No derivative use was made by federal prosecutors of the defendant's state grand jury testimony under a grant of immunity where, although the fact that the defendant had testified was one of several factors in the decision of other individuals to pursue or accelerate negotiations with the federal prosecutors, the analysis and evaluation in making those decisions did not involve any participation or influence by the federal prosecutors or any knowledge of the contents of the defendant's testimony, and where, in negotiating and obtaining the cooperation and testimony of those other individuals, the federal prosecutors did not make any use of the fact that the defendant had testified. United States v. Jones, 590 F. Supp. 233 (N.D. Ga. 1984).
- If the state does not wish to compel a defendant to testify, it is up to the defendant to decide whether the defendant wishes to exercise or waive the Fifth Amendment right, and the defendant cannot compel the state to enter into an immunity agreement when it has no interest in doing so. Hayes v. State, 168 Ga. App. 94, 308 S.E.2d 227 (1983).
- A promise to forego prosecution must be limited to prosecution as to specific crimes or transactions. State v. Hanson, 249 Ga. 739, 295 S.E.2d 297 (1982).
- A valid promise to forego prosecution based on prosecutorial discretion rather than on § 24-9-28 must, first, contain a description of the crimes or transactions in regard to which an individual is excused from prosecution, and, secondly, the prosecutor must obtain court approval of an agreement to forego prosecution. State v. Hanson, 249 Ga. 739, 295 S.E.2d 297 (1982).
- Statements made by the defendant pursuant to informal, oral "understandings" that what the defendant said could not be used against the defendant, while made prior to any formal written agreement, were "immunized," i.e., given pursuant to an equitable grant of immunity. This immunity was coextensive with the defendant's Fifth Amendment privilege, i.e., use and derivative use immunity, and the burden was on the government in a later prosecution to show the government's evidence derived from sources wholly independent from the defendant's statements. The government failed to carry this burden, as it could not establish that its questioning of potential witnesses was not "focused" by the information provided by the defendant, nor that the information provided was not used to confirm the truthfulness of what was being told by these witnesses. United States v. Carpenter, 611 F. Supp. 768 (N.D. Ga. 1985).
- Because the defendant neither engaged in a plea bargain nor was compelled to testify but apparently gave information in exchange for dismissal of charges against the defendant and a promise of the prosecutor not to prosecute the defendant for any crimes committed prior to September, 1980, the defendant gave up no constitutional right, and was not entitled to immunity for purpose of constitutional protection. State v. Hanson, 249 Ga. 739, 295 S.E.2d 297 (1982).
Government's burden, once the defendant who testified before grand jury under grant of immunity was prosecuted for matters related to the defendant's testimony, was to prove by a preponderance of the evidence that the evidence presented to the second grand jury, which indicted the defendant, and ultimately the evidence used at trial, was derived from legitimate independent sources. The government was not required to demonstrate by the preponderance of the evidence that the decision to seek indictment was not induced by the content of the immunized testimony. Further, it was not improper for the court, in deciding whether the government met its burden of proof, to consider, in camera, evidence presented before the grand juries, included the defendant's immunized testimony. United States v. Byrd, 765 F.2d 1524 (11th Cir. 1985).
- O.C.G.A. § 16-13-31(e)(2), regarding reduced sentences for those convicted of drug trafficking, does not compel a defendant to exchange the defendant's Fifth Amendment rights for a chance at a reduced sentence, as it only requires the defendant to provide information about other persons involved in the same crime for which the defendant has already been convicted. Brugman v. State, 255 Ga. 407, 339 S.E.2d 244 (1986).
- An immunity given to compel testimony over U.S. Const., amend. 5's objection may not constitutionally be forfeited because of perjury or false swearing in that testimony. Corson v. Hames, 239 Ga. 534, 238 S.E.2d 75 (1977).
- The privilege against self-incrimination protects an accused only from being compelled to testify against self or otherwise provide the prosecution with evidence of testimonial nature. Bonaparte v. Smith, 362 F. Supp. 1315 (S.D. Ga.), aff'd, 484 F.2d 956 (5th Cir. 1973), cert. denied, 415 U.S. 981, 94 S. Ct. 1572, 39 L. Ed. 2d 878 (1974).
Evidence of a noncommunicative nature may be taken from the defendant without violating any right under U.S. Const., amend. 5 against self-incrimination. Bonaparte v. Smith, 362 F. Supp. 1315 (S.D. Ga.), aff'd, 484 F.2d 956 (5th Cir. 1973), cert. denied, 415 U.S. 981, 94 S. Ct. 1572, 39 L. Ed. 2d 878 (1974).
Miranda protects only testimonial evidence, not noncompulsive physical evidence. Tiller v. State, 238 Ga. 67, 230 S.E.2d 874 (1976).
- This amendment offers no protection against compulsion to submit to fingerprinting, photographing or measurements, to write or speak for identification, to appear in court, to stand, to assume a stance, to walk, or to make a particular gesture. Bonaparte v. Smith, 362 F. Supp. 1315 (S.D. Ga.), aff'd, 484 F.2d 956 (5th Cir. 1973), cert. denied, 415 U.S. 981, 94 S. Ct. 1572, 39 L. Ed. 2d 878 (1974).
Self-incrimination protections of U.S. Const., amend. 5 do not apply to "nontestimonial" evidence such as handwriting samples, blood tests, and voice identifications. Calley v. Callaway, 519 F.2d 184 (5th Cir. 1975), cert. denied, 425 U.S. 911, 96 S. Ct. 1505, 47 L. Ed. 2d 760 (1976).
- Trial court properly allowed government to introduce and comment upon evidence of inmate's repeated refusals to provide handwriting exemplars in a prosecution for tax fraud, as the jury could interpret refusals as evidence of a guilty conscience. United States v. Stone, 9 F.3d 934 (11th Cir. 1993), cert. denied, 513 U.S. 833, 115 S. Ct. 111, 130 L. Ed. 2d 58 (1994).
Merely exhibiting one's self for observation by witnesses involves no compulsion to give evidence of a testimonial nature. Bonaparte v. Smith, 362 F. Supp. 1315 (S.D. Ga.), aff'd, 484 F.2d 956 (5th Cir. 1973), cert. denied, 415 U.S. 981, 94 S. Ct. 1572, 39 L. Ed. 2d 878 (1974).
Appearance in a police line-up is evidence of a noncommunicative nature and such may be obtained without violating rights against self-incrimination. Bonaparte v. Smith, 362 F. Supp. 1315 (S.D. Ga.), aff'd, 484 F.2d 956 (5th Cir. 1973), cert. denied, 415 U.S. 981, 94 S. Ct. 1572, 39 L. Ed. 2d 878 (1974).
Voluntary consent to a line-up does not violate rights under U.S. Const., amend. 5 against self-incrimination, since the line-up process involves no compulsion of the accused to give evidence of a testimonial nature against the accused. Disby v. State, 238 Ga. 178, 231 S.E.2d 763 (1977).
Requiring a defendant to appear in a line-up and to repeat words similar to those used at the scene of a bank robbery does not violate rights under U.S. Const., amend. 5 against self-incrimination. Schmidt v. United States, 380 F.2d 22 (5th Cir. 1967).
- Mere use of the defendant's voice as an identifying physical characteristic does not involve or amount to compelling of the defendant to give evidence against the defendant having a testimonial significance. Bradford v. State, 118 Ga. App. 457, 164 S.E.2d 264 (1968), cert. denied, 394 U.S. 1020, 89 S. Ct. 1644, 23 L. Ed. 2d 46 (1969).
Requiring a suspect to give a voice exemplar for identification purposes does not violate the privilege against self-incrimination. Davis v. State, 158 Ga. App. 549, 281 S.E.2d 305 (1981).
Defendant's consent to use of the defendant's voice in a voice lineup was not required since requiring a suspect to give a voice exemplar does not violate the defendant's privilege against self-incrimination. Campbell v. State, 228 Ga. App. 258, 491 S.E.2d 477 (1997).
- Where the defendant and three others were requested by investigating officers to speak into a telephone for the purpose of identifying, by voice, which of the four had made obscene telephone calls, and where the suspects complied, the situation did not amount to a critical stage of the defendant's prosecution and the defendant was neither entitled to receive warning of the defendant's rights under U.S. Const., amend. 5 or U.S. Const., amend. 6, nor were the defendant's rights violated. Bradford v. State, 118 Ga. App. 457, 164 S.E.2d 264 (1968), cert. denied, 394 U.S. 1020, 89 S. Ct. 1644, 23 L. Ed. 2d 46 (1969).
- The essential element in the provision against self-incrimination is that no one shall be compelled to give evidence tending to incriminate oneself. The provision is not applicable where the defendant voluntarily submits the defendant for the purpose of others identifying him. Whippler v. State, 218 Ga. 198, 126 S.E.2d 744 (1962), cert. denied, 375 U.S. 960, 84 S. Ct. 446, 11 L. Ed. 2d 318 (1963).
Actions of a defendant which are inconsistent with innocence are admissible without regard to the Fifth Amendment privilege against self-incrimination. United States v. Nabors, 707 F.2d 1294 (11th Cir. 1983), cert. denied, 465 U.S. 1021, 104 S. Ct. 1271, 79 L. Ed. 2d 677 (1984).
- Where a police officer, who had advised the defendant of the defendant's Miranda rights and then told the defendant that the officer would not arrest the defendant at that moment but would take out a warrant for the defendant's arrest for growing and possessing marijuana, was asked by the district attorney whether the defendant had registered any emotional or facial surprise or other manifestation of emotion, and the officer stated the defendant remained neutral in expression and actions, there was no Miranda violation under the circumstances. Gravley v. State, 181 Ga. App. 400, 352 S.E.2d 589 (1986).
Defendant does not have right to refuse to speak at a post-indictment lineup. Jenkins v. State, 167 Ga. App. 840, 308 S.E.2d 14 (1983).
- Although the defendant was ordered to take the stand in the presence of the jury, since the defendant neither testified nor invoked the Fifth Amendment privilege to remain silent, the defendant's constitutional rights were not violated. Turner v. State, 162 Ga. App. 806, 293 S.E.2d 67 (1982).
- In a prosecution for murder and armed robbery, admission of photographs of defendant and a portion of defendant's right hand did not violate defendant's right against self-incrimination. Rivers v. State, 265 Ga. 694, 461 S.E.2d 205 (1995), cert. denied, 516 U.S. 1177, 116 S. Ct. 1274, 134 L. Ed. 2d 220 (1996).
- Requiring a defendant to strip down to the waist and be photographed neither compelled the defendant to be a witness against the defendant nor compelled the defendant to give testimony tending in any manner to be self-incriminating. Ingram v. State, 253 Ga. 622, 323 S.E.2d 801 (1984), cert. denied, 473 U.S. 911, 105 S. Ct. 3538, 87 L. Ed. 2d 661 (1985).
- Defendant's due process rights were not violated when the trial court admitted into evidence photographs of a baseball cap defendant allegedly wore on the night of the crime because the lost cap was not constitutionally material, and as far as the state knew at the time the cap disappeared, the cap was more likely to be inculpatory of the defendant since there was no apparent reason for the police to think that the cap would tend to exonerate rather than further inculpate the defendant; there was also no evidence that the state acted in bad faith, and even if it was assumed that the state's handling of the cap indicated careless, shoddy, and unprofessional investigatory procedures, it did not indicate that the police in bad faith attempted to deny the defendant access to evidence that the police knew would be exculpatory. Johnson v. State, 289 Ga. 106, 709 S.E.2d 768 (2011).
Field sobriety test results are not inadmissible because they are not evidence of a testimonial or communicative nature. Coates v. State, 216 Ga. App. 93, 453 S.E.2d 35 (1994).
- A condition requiring the probationer to submit to polygraph tests does not violate a defendant's rights under U.S. Const., amend. 5, and that the condition may be imposed, in the discretion of the trial judge, with no more than a general finding of the court that it is reasonably necessary to accomplish the purpose of probation. Mann v. State, 154 Ga. App. 677, 269 S.E.2d 863 (1980).
- U.S. Const., amend. 5's privilege against self-incrimination offers no protection against compulsion to don an item of apparel worn by the person committing the offense in order to facilitate identification. United States v. Roberts, 481 F.2d 892 (5th Cir. 1973).
- Use of "personal history forms" which the defendant is instructed to complete following arrest as handwriting exemplars violates none of the defendant's rights under U.S. Const., amend. 5 or U.S. Const., amend. 6. United States v. Walker, 453 F.2d 1205 (5th Cir.), cert. denied, 407 U.S. 910, 92 S. Ct. 2432, 32 L. Ed. 2d 683 (1972).
Admissibility of fingerprint evidence is well established. Grimes v. United States, 405 F.2d 477 (5th Cir. 1968).
- Constitutional rights are not denied because fingerprints are taken in the absence of counsel. Ward v. United States, 486 F.2d 305 (5th Cir. 1973), cert. denied, 416 U.S. 990, 94 S. Ct. 2398, 40 L. Ed. 2d 768 (1974).
Removal of a substance from the body through a minor intrusion is not self-incriminating within the meaning of U.S. Const., amend. 5. Strong v. State, 231 Ga. 514, 202 S.E.2d 428 (1973), overruled on other grounds, Williams v. State, 296 Ga. 817, 771 S.E.2d 373 (2015), cert. denied, 416 U.S. 994, 94 S. Ct. 2408, 40 L. Ed. 2d 773 (1974).
Taking of blood for tests is but a minor intrusion upon one's body so as not to cause the person to be a witness against oneself within the meaning of U.S. Const., amend. 5. Williams v. State, 145 Ga. App. 81, 243 S.E.2d 614 (1978).
The compelled taking of a blood sample does not violate a defendant's constitutional privilege against self-incrimination. Welch v. State, 254 Ga. 603, 331 S.E.2d 573 (1985).
- While the state and federal Constitutions do not allow self-incriminating statements in evidence, over the objection of defendant, the results of properly administered breathalyzer or intoximeter tests have not yet been placed in the category of an incriminating statement. Johnson v. State, 125 Ga. App. 607, 188 S.E.2d 416 (1972), overruled on other grounds, Wessels v. State, 169 Ga. App. 246, 312 S.E.2d 361 (1983).
Constitutional privilege against self-incrimination does not apply to noncommunicative acts such as an intoximeter test. Purvis v. State, 129 Ga. App. 208, 199 S.E.2d 366 (1973).
Evidence of the defendant's refusal to take a breath test did not need to be excluded, simply because the officer did not advise the defendant of the defendant's rights. Lankford v. State, 204 Ga. App. 405, 419 S.E.2d 498 (1992), cert. denied, 506 U.S. 1051, 113 S. Ct. 972, 122 L. Ed. 2d 127 (1993).
Because defendant was not compelled by the state to submit to a breath test after arrest, the admission at trial of the test results did not violate the defendant's right against self-incrimination. Fantasia v. State, 268 Ga. 512, 491 S.E.2d 318 (1997).
Admission of breath test results did not violate the defendant's fifth and fourteenth amendment rights even though the defendant was in custody and no Miranda warnings were given; the results obtained from a chemical breath test, like the results obtained from a sobriety test or a blood test, are not evidence of a testimonial or communicative nature. Scanlon v. State, 237 Ga. App. 362, 514 S.E.2d 876 (1999), cert. denied, 528 U.S. 1078, 120 S. Ct. 795, 145 L. Ed. 2d 671 (2000).
- The obtaining of hair samples after lawful arrest, where the means employed are reasonable, is not a violation of appellant's constitutional rights. Grimes v. United States, 405 F.2d 477 (5th Cir. 1968).
- Constitutional rights of the defendant are not violated by the state in requiring the removal of a bullet from the defendant's body. Creamer v. State, 229 Ga. 511, 192 S.E.2d 350 (1972), cert. dismissed, 410 U.S. 975, 93 S. Ct. 1454, 35 L. Ed. 2d 709 (1973).
- Testimony of an expert concerning swabbing procedure used to lift gunshot residue from the hands of the accused, its physical results, and the expert's opinion based on those results does not violate the privilege of the accused against self-incrimination. Strickland v. State, 247 Ga. 219, 275 S.E.2d 29, cert. denied, 454 U.S. 882, 102 S. Ct. 365, 70 L. Ed. 2d 192 (1981).
Physical dexterity tests and alphabet test are not inadmissible under the Fifth Amendment of the United States Constitution because they were not evidence of a testimonial or communicative nature. Hughes v. State, 259 Ga. 227, 378 S.E.2d 853, cert. denied, 493 U.S. 890, 110 S. Ct. 234, 107 L. Ed. 2d 185 (1989).
Production of bodily fluid samples is not communicative or testimonial in nature and thus does not implicate a defendant's privilege against self-incrimination. Green v. State, 194 Ga. App. 343, 390 S.E.2d 285 (1990), aff'd, 260 Ga. 625, 398 S.E.2d 360 (1990), cert. denied, 500 U.S. 935, 111 S. Ct. 2059, 114 L. Ed. 2d 464 (1991).
Teacher's right to remain silent was not violated by a school policy requiring drug testing when circumstances reasonably support a suspicion that an employee may have violated the policy. Hearn v. Board of Pub. Educ., 191 F.3d 1329 (11th Cir. 1999), cert. denied, 529 U.S. 1109, 120 S. Ct. 1962, 146 L. Ed. 2d 794 (2000).
- Admitting the results of blood and urine analysis into evidence in the defendant's felony murder trial did not violate U.S. Const., amend. V, Ga. Const. 1983, Art. I, Sec. I, Para. XVI, or former O.C.G.A. § 24-9-20(a) (see now O.C.G.A. § 24-5-506) because the removal of a substance from the body through a minor intrusion did not cause the defendant to be a witness against oneself within the meaning of the Fifth Amendment and similar provisions of Georgia law. Bowling v. State, 289 Ga. 881, 717 S.E.2d 190 (2011).
Obtaining blood, hair and saliva samples from an accused represents "minor intrusions" that do not cause the person to be a witness against oneself within the meaning of the constitution. Calloway v. State, 199 Ga. App. 272, 404 S.E.2d 811 (1991).
- Defendant was properly denied the right to a new trial under O.C.G.A. § 5-5-23 based on defendant's claim that trial counsel rendered ineffective assistance of counsel, as defendant failed to show that the outcome of defendant's criminal trial would have differed if defendant's trial counsel had acted in another manner; moreover, defendant's claims lacked merit, in that defendant's constitutional right, under Ga. Const. 1983, Art. I, Sec. I, Para. I and U.S. Const., amend. 5, to present evidence of the victim's prior violent acts was contingent upon defendant's showing that the evidence was relevant to defendant's claim of justification, which the defendant failed at showing because there was an eyewitness and medical evidence that defendant shot the victim numerous times in the back. Robinson v. State, 277 Ga. 75, 586 S.E.2d 313 (2003).
- With regard to defendant's convictions for rape and other crimes, the trial court did not err by concluding that defendant's trial counsel was not ineffective for failing to object to a search warrant affidavit that led to the police obtaining a DNA swab from defendant, despite defendant's voluntary statement to the detectives being elicited in violation of Miranda and case law, as the search warrant could be predicated on defendant's voluntary but unlawfully obtained statements. Brown v. State, 292 Ga. App. 269, 663 S.E.2d 749 (2008).
- In a defendant's prosecution for malice murder and armed robbery, the trial court did not err in failing to instruct the jury without request that the jurors limit the jurors' consideration of the defendant's prior convictions to the purpose of impeachment only under former O.C.G.A. § 24- 9-84.1(a) (see now O.C.G.A. § 24-6-609) as information regarding the defendant's prior convictions was not obtained in violation of the defendant's constitutional rights against self-incrimination under U.S. Const., amend. V. Phillips v. State, 285 Ga. 213, 675 S.E.2d 1 (2009).
- As for defendant's argument that registering as a sex offender would have exposed the defendant to prosecution for reentry of a previously removed alien under 8 U.S.C. § 1326, the court found no Fifth Amendment violation because defendant could not show that anything the defendant would have been required to provide under Georgia's sex offender statute would have confronted the defendant with a substantial hazard of self-incrimination (there were no nationality, visa, or other immigration details required to be submitted); the cases defendant cited in support of defendant's Fifth Amendment argument were distinguishable because those cases imposed a disclosure requirement largely designed to discover involvement in criminal activities, and the Sex Offender Registration Notification Act was not designed to uncover criminal behavior, but was instead intended to protect the public from sex offenders by tracking their interstate movement. United States v. Simon-Marcos, F.3d (11th Cir. Feb. 2, 2010)(Unpublished).
- Defendant was not denied due process on the ground that the prosecution withheld an audiotape because the defendant did not show that the state, either purposefully or through oversight or neglect suppressed the audiotape, much less that any earlier notice of the existence of the audiotape would have actually benefitted the defendant or that any alleged delay deprived the defendant of a fair trial. Nations v. State, 290 Ga. 39, 717 S.E.2d 634 (2011).
- It is axiomatic that the Fifth Amendment due process clause applies only to the federal government, while the fourteenth amendment due process clause applies to the states. Mindler v. Clayton County, 831 F. Supp. 856 (N.D. Ga. 1993).
- Identification of the specific dictates of due process generally requires consideration of three distinct factors: first, the private interest that will be affected by the official action; second, the risk of an erroneous deprivation of such interest through the procedures used, and probable value, if any, of additional or substitute procedural safeguards; and finally, the government's interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirement would entail. Tucker v. Caldwell, 608 F.2d 140 (5th Cir. 1979); Greenwood Utils. Comm'n v. Schlesinger, 515 F. Supp. 653 (M.D. Ga. 1981).
Where a rule of conduct applies to more than a few people, it is impracticable that every one should have a direct voice in its adoption. General statutes within the state power are passed that affect the person or property of individuals, sometimes to the point of ruin, without giving them a chance to be heard. Their rights are protected in the only way that they can be in a complex society, by their power, immediate or remote, over those who make the rule. Bowles v. Willingham, 321 U.S. 503, 64 S. Ct. 641, 88 L. Ed. 892 (1944).
Equal protection concepts are embodied in the due process clause of U.S. Const., amend. 5. Winningham v. United States Dep't of HUD, 512 F.2d 617 (5th Cir. 1975).
Basic concepts of equal protection apply to the federal government through the due process clause of U.S. Const., amend. 5. United States v. Hawes, 529 F.2d 472 (5th Cir. 1976).
All standards of equal protection applicable to the states through U.S. Const., amend. 14, are also applicable to the federal government through U.S. Const., amend. 5. Morris v. Richardson, 346 F. Supp. 494 (N.D. Ga. 1972), vacated on other grounds, 409 U.S. 464, 93 S. Ct. 629, 34 L. Ed. 2d 647 (1973).
- Because the plaintiff, a dismissed federal employee, asserted various fourth, fifth, and sixth amendment claims against the plaintiff's superiors under a Bivens theory (see Bivens v. 6 Unknown Narcotics Agents, 403 U.S. 388, 91 S. Ct. 1999, 29 L. Ed. 2d 619 (1971), the court found no federal question because Congress had established an elaborate remedial scheme for dismissed federal employees. Metz v. McKinley, 583 F. Supp. 683 (S.D. Ga.), aff'd, 747 F.2d 709 (11th Cir. 1984).
U.S. Const., amend. 5 and U.S. Const., amend. 4, provide protection against all governmental invasions of the sanctity of a person's home and privacies of life. Smith v. Price, 446 F. Supp. 828 (M.D. Ga. 1977), rev'd on other grounds, 616 F.2d 1371 (5th Cir. 1980).
- The restraint imposed upon legislation by the due process clause of the fifth and fourteenth amendments is essentially the same. DeLaigle v. Federal Land Bank, 568 F. Supp. 1432 (S.D. Ga. 1983), overruled on other grounds, 777 F.2d 1544 (11th Cir. 1985).
Relationship of presumptions to due process. See Williamson v. State, 248 Ga. 47, 281 S.E.2d 512 (1981).
Requirements of due process apply only to denial of property or liberty rights protected by the Constitution. NAACP v. United States Postal Serv., 398 F. Supp. 562 (N.D. Ga. 1975).
Property interests, for due process purposes, are not created by the Constitution but by existing rules or understandings that stem from an independent source such as state law. NAACP v. United States Postal Serv., 398 F. Supp. 562 (N.D. Ga. 1975).
Protections of U.S. Const., amend. 5 may be invoked in civil as well as criminal actions. Page v. Page, 235 Ga. 131, 218 S.E.2d 859 (1975).
While the power of Congress to investigate for legislative purposes is inherent, it is not unlimited, and is always subject to the limitations imposed by the individual guarantees of the Bill of Rights. Calley v. Callaway, 382 F. Supp. 650 (M.D. Ga. 1974), rev'd on other grounds, 519 F.2d 184 (5th Cir. 1975), cert. denied, 425 U.S. 911, 96 S. Ct. 1505, 47 L. Ed. 2d 760 (1976).
- While the maxim salus populi suprema lex cannot be used as a mere pretext for the curtailment of constitutional safeguards still, where it does apply it acts as a limitation on the rights of the individual which otherwise would be beyond the power of the General Assembly to regulate or circumscribe. Ingram v. State, 193 Ga. 565, 19 S.E.2d 493 (1942).
- In emergency situations, the government may terminate a protected interest without affording any protections other than the right to a hearing before the termination becomes final. Eley v. Morris, 390 F. Supp. 913 (N.D. Ga. 1975).
Where only property rights are involved, mere postponement of judicial inquiry is not a denial of due process, if the opportunity given for the ultimate judicial determination of the liability is adequate. Bowles v. Willingham, 321 U.S. 503, 64 S. Ct. 641, 88 L. Ed. 892 (1944).
For the government to compel one to commit an act at one's own peril without any warning of possible criminal consequences violates due process. Calley v. Callaway, 382 F. Supp. 650 (M.D. Ga. 1974), rev'd on other grounds, 519 F.2d 184 (5th Cir. 1975), cert. denied, 425 U.S. 911, 96 S. Ct. 1505, 47 L. Ed. 2d 760 (1976).
Counties are not persons as against the state within the meaning of the constitutional provision guaranteeing due process to all persons. Bibb County v. Hancock, 211 Ga. 429, 86 S.E.2d 511 (1955).
Commerce power is subject to the due process clause of U.S. Const., amend. 5. United States v. Hawes, 529 F.2d 472 (5th Cir. 1976).
Waivers of constitutional rights not only must be voluntary but must be knowing, intelligent acts done with sufficient awareness of the relevant circumstances and likely consequences. United States v. Gearin, 496 F.2d 691 (5th Cir. 1974), cert. denied, 419 U.S. 1113, 95 S. Ct. 789, 42 L. Ed. 2d 810 (1975).
- The mere fact that a defendant is 21 years old with a sixth grade education does not lead to the conclusion that the defendant was incapable of knowingly, voluntarily, and intelligently waiving the defendant's constitutional rights. Gates v. State, 244 Ga. 587, 261 S.E.2d 349 (1979), cert. denied, 445 U.S. 938, 100 S. Ct. 1332, 63 L. Ed. 2d 772 (1980).
- Insofar as a plaintiff 's allegations can be read as encompassing an age discrimination ingredient, U.S. Const., amend. 5 has no application. Favors v. Ruckelshaus, 569 F. Supp. 363 (N.D. Ga. 1983).
- Jurisdiction of a case which ordinarily is in the Court of Appeals is not conferred on the Supreme Court by a statement in the bill of exceptions, following an assignment of error, that said ruling is contrary to law, contrary to Ga. Const. 1877, Art. I, Sec. I, Para. I (see Ga. Const. 1983, Art. I, Sec. II, Para. I), and violative of U.S. Const., amend. 5. Chastain v. Alford, 191 Ga. 677, 13 S.E.2d 769 (1941).
- To determine the question of personal jurisdiction in a federal question case with nationwide service of process, the court must apply a two-pronged test. First, the court must determine whether the defendant "purposefully availed" itself of the protection of the federal law, in other words do the requisite national contacts exist? Then, the defendant will have the opportunity to establish a compelling case that exercising jurisdiction would offend "notions of fair play or substantial justice." Duckworth v. Medical Electro-Therapeutics, Inc., 768 F. Supp. 822 (S.D. Ga. 1991).
In a federal securities fraud action, the defendants purposefully availed themselves of the protection of the federal laws, in that they resided in the United States and, by exchanging securities, they should have had fair warning that they may have been haled into federal court to defend themselves in such an action. Thus, the defendants had the requisite national contacts to justify the exercise of personal jurisdiction over them. Duckworth v. Medical Electro-Therapeutics, Inc., 768 F. Supp. 822 (S.D. Ga. 1991).
- Jurisdiction over a nonresident exists if the nonresident has purposefully done some act or consummated some transaction in the forum state, if the claim arises from or is connected with the act or transaction, and if the exercise of jurisdiction by the courts of the forum state does not offend traditional fairness and substantial justice. Bailey v. London Marina, Inc., 151 Ga. App. 73, 258 S.E.2d 738 (1979).
The federal district court's exercise of personal jurisdiction did not offend the constitutional restrictions of the due process clause where defendant's alleged contacts with Georgia satisfied the requirement of a single, purposeful arguably commercial contact of some benefit to defendant. Thermo-Cell S.E., Inc. v. Technetic Indus., Inc., 605 F. Supp. 1122 (N.D. Ga. 1985).
Although South Carolina defendants met the requirements of Georgia's long-arm statute, O.C.G.A. § 9-10-91, the defendants did not deliberately engage in significant activities in Georgia and did not have fair warning that the defendants might be haled into court in Georgia simply by hiring Georgia lawyers to handle litigation that occurred in Massachusetts. Therefore, the defendants were not subject to suit in Georgia by a company that provided expert witness and consulting services to the defendant in the Massachusetts litigation. Schmidt v. JPS Indus., F. Supp. 2d (N.D. Ga. Mar. 31, 2011).
- While a federal court has no subject matter jurisdiction to review the reasonableness of an award of attorney's fees in connection with a claim for social security benefits, it does have subject matter jurisdiction over claims that the denial by the Secretary of Health and Human Services of the attorney's fees agreed upon between the attorney and the claimant constitutes a denial of due process and an interference with contract. Siler v. Heckler, 578 F. Supp. 744 (N.D. Ga. 1983).
Rule that the United States may not be sued without its consent is all embracing. Lynch v. United States, 292 U.S. 571, 54 S. Ct. 840, 78 L. Ed. 1434 (1934).
- Although the United States may give consent to sue, Congress retains the power to withdraw the consent at any time. Consent to sue the United States is a privilege accorded, not the grant of a property right protected by U.S. Const., amend. 5. The consent may be withdrawn, although given after much deliberation and for a pecuniary consideration. Lynch v. United States, 292 U.S. 571, 54 S. Ct. 840, 78 L. Ed. 1434 (1934).
Procedural due process imposes restraints on governmental decisions that deprive individuals of liberty or property interests within the meaning of the due process clause. Griffin v. Califano, 448 F. Supp. 430 (N.D. Ga. 1977).
- The constitutional guarantee of procedural due process applies to governmental deprivation of a legitimate property or liberty interest within the meaning of U.S. Const., amend. 5 or U.S. Const., amend. 14, and requires that any such deprivation be accompanied by minimum procedural safeguards, including some form of notice and a hearing. Eley v. Morris, 390 F. Supp. 913 (N.D. Ga. 1975).
Deprivation of any property or entitlement by state or federal officials, without notice and opportunity for prior hearing may violate procedural due process. Eley v. Morris, 390 F. Supp. 913 (N.D. Ga. 1975).
- Where it was undisputed that the defendant received neither notice nor a hearing before issuance of the warrants seizing defendant's property and it was also undisputed that the government neither alleged nor established the existence of exigent circumstances that might have allowed ex parte seizure of the properties, there was no question that the warrants were invalid and that the seizure of the properties therefore violated defendant's Fifth Amendment right to due process. United States v. 2751 Peyton Woods Trail, 66 F.3d 1164 (11th. Cir. 1995).
- Due process clauses of the state and federal constitutions prohibit the enactment of a law which would impair vested rights. Villyard v. Regents of Univ. Sys., 204 Ga. 517, 50 S.E.2d 313 (1948).
Due process clause does not insure to a person, first in the field, a monopoly in any line of business. Villyard v. Regents of Univ. Sys., 204 Ga. 517, 50 S.E.2d 313 (1948).
- The notice required in any particular situation is that which is reasonably calculated to inform interested parties of the action to be taken and of their opportunity to present objections. Roberts v. Cameron-Brown Co., 410 F. Supp. 988 (S.D. Ga. 1975), rev'd on other grounds, 556 F.2d 356 (5th Cir. 1977), rev'd on other grounds, 556 F.2d 356 (5th Cir. 1977).
Due process requires notice reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections. Douglas v. United States, 562 F. Supp. 593 (S.D. Ga. 1983).
- Full due process notice can be afforded by telephone, and U.S. Const., amend. 5 does not demand that all pretermination notice be in writing. However, not every oral pretermination notice will be constitutionally sound, for there may be individual situations in which inadequate notice is given, in writing as well as orally, and the matter must be considered a factual question to be decided on a case-by-case basis. Williams v. Weinberger, 360 F. Supp. 1349 (N.D. Ga. 1973), aff'd, 494 F.2d 1191 (5th Cir. 1974), vacated on other grounds, Mathews v. Williams, 424 U.S. 951, 96 S. Ct. 1423, 47 L. Ed. 2d 357 (1976).
- Notice by publication is sufficient only if the party bringing the action cannot by due diligence ascertain either the names or whereabouts of those likely to oppose the action. Roberts v. Cameron-Brown Co., 410 F. Supp. 988 (S.D. Ga. 1975), rev'd on other grounds, 556 F.2d 356 (5th Cir. 1977).
Although plaintiff claimed never to have received any notice from the Postal Service regarding receipt of certified or registered mail, the forfeiture was allowed to stand, as adequate notice was given by the publication of the notice in a newspaper of general circulation. Coggins v. United States, 860 F. Supp. 845 (M.D. Ga. 1994), aff'd, 53 F.3d 1287 (11th Cir. 1995).
Due process requires a competent and impartial tribunal in administrative hearings and in trials to a judge. Peters v. Kiff, 407 U.S. 493, 92 S. Ct. 2163, 33 L. Ed. 2d 83 (1972).
Due process is denied by circumstances that create the likelihood or the appearance of bias, even if no showing of actual bias in the tribunal. Peters v. Kiff, 407 U.S. 493, 92 S. Ct. 2163, 33 L. Ed. 2d 83 (1972).
Hearing must be granted only before one is finally deprived of one's property. Roberts v. Cameron-Brown Co., 410 F. Supp. 988 (S.D. Ga. 1975), rev'd on other grounds, 556 F.2d 356 (5th Cir. 1977).
Legislative acts adjusting burdens and benefits of economic life include a presumption of constitutionality, and the burden is on one complaining of a due process violation to establish that the Legislature has acted in an arbitrary and irrational way. Hall v. Landmark Fin. Corp., 13 Bankr. 205 (Bankr. N.D. Ga. 1981).
Notice must be given and a judicial determination made before a debtor's rights can constitutionally be terminated. Roberts v. Cameron-Brown Co., 410 F. Supp. 988 (S.D. Ga. 1975), rev'd on other grounds, 556 F.2d 356 (5th Cir. 1977).
- Where direct contempt is committed in the presence of the court, the offender is not entitled as a matter of right to a hearing before the court. The court may act on its own knowledge of the facts and proceed to impose punishment for the contempt, or it may in its discretion allow a hearing. The refusal to allow a hearing does not deprive the defendant of the due process of law guaranteed by the state and federal constitutions. Martin v. Waters, 151 Ga. App. 149, 259 S.E.2d 153 (1979).
If an act of criminal contempt is not committed in the court's immediate presence, due process requires that the accused be given an opportunity to be heard. Martin v. Waters, 151 Ga. App. 149, 259 S.E.2d 153 (1979).
- Federal district court exceeded its civil contempt power by fining a county for operating its jail in violation of prior court orders, where the county was deprived of its due process right to show cause why it should not be held in contempt. Mercer v. Mitchell, 908 F.2d 763 (11th Cir. 1990).
That an oral hearing is not held on reconsideration of a motion for summary judgment is not a denial of due process. Bon Air Hotel, Inc. v. Time, Inc., 426 F.2d 858 (5th Cir. 1970).
- Except in emergency situations, due process requires that when a state seeks to terminate a protected interest, it must afford notice and opportunity for a hearing appropriate to the nature of the case before the termination becomes effective. Eley v. Morris, 390 F. Supp. 913 (N.D. Ga. 1975).
Constitutional doctrine of separation of powers may not limit an individual's right to a fair hearing of the individual's case and the individual's right to present the individual's defense. Calley v. Callaway, 382 F. Supp. 650 (M.D. Ga. 1974), rev'd on other grounds, 519 F.2d 184 (5th Cir. 1975), cert. denied, 425 U.S. 911, 96 S. Ct. 1505, 47 L. Ed. 2d 760 (1976).
When congressional inquiry and a criminal prosecution cross paths, congressional privilege is not absolute, and Congress must accommodate the public interest in legitimate legislative inquiry with the public interest in securing the witness a fair trial. Calley v. Callaway, 382 F. Supp. 650 (M.D. Ga. 1974), rev'd on other grounds, 519 F.2d 184 (5th Cir. 1975), cert. denied, 425 U.S. 911, 96 S. Ct. 1505, 47 L. Ed. 2d 760 (1976).
- Due process clause has always been interpreted as permitting the states wide latitude in fashioning rules of evidence and procedure. Bassett v. Smith, 464 F.2d 347 (5th Cir. 1972), cert. denied, 410 U.S. 991, 93 S. Ct. 1509, 36 L. Ed. 2d 190 (1973).
- Rights against the United States arising out of a contract with it are protected by U.S. Const., amend. 5, so that Congress is without power to reduce expenditures by abrogating contractual obligations of the United States. Lynch v. United States, 292 U.S. 571, 54 S. Ct. 840, 78 L. Ed. 1434 (1934). But see Connolly v. Pension Benefit Guar. Corp., 475 U.S. 211, 106 S. Ct. 1018, 89 L. Ed. 2d 166 (1986).
- Due process under the Fifth Amendment to the United States Constitution prevents actions taken against the interests of a creditor without notice. In re Hamilton, 179 Bankr. 749 (Bankr. S.D. Ga. 1995).
Under the bankruptcy power Congress has authority to impair the obligation of contracts, but may do so, only when property is not, contrary to U.S. Const., amend. 5, taken without due process of law. In re Philibosian, 19 F. Supp. 787 (N.D. Ga. 1937).
- An unsecured note is property, whose value rests wholly in the debtor's obligation to pay it and in the right to seize the holder's property to satisfy a judgment on the note. The holder may be deprived of the holder's property by a process of bankruptcy resulting in the bankrupt's discharge without any payment, and due process of law is not lacking. In re Philibosian, 19 F. Supp. 787 (N.D. Ga. 1937).
Secured creditor may not be deprived of security, but that is due to a limitation in the bankruptcy power, not a result of due process. It is not clear that to deprive a secured creditor of creditor's security through a bankruptcy deprives the secured creditor of property any more than to deprive the unsecured creditor of the unsecured creditor's debt does or that the process of bankruptcy is any less a due process of law in the one case than in the other. The true reason why bankruptcy may not nullify a security is not U.S. Const., amend. 5 but the fact that it never has. It lies in the limitations inherent in the bankruptcy power. In re Philibosian, 19 F. Supp. 787 (N.D. Ga. 1937).
- By providing the benefit of dischargeability of alimony and support debts owed by wives, but not those owed by husbands, 11 U.S.C. § 523(a)(5) violates the equal protection component of the due process clause of U.S. Const., amend. 5. Crist v. Crist, 632 F.2d 1226 (5th Cir. 1980), cert. denied, 451 U.S. 986, 101 S. Ct. 2321, 68 L. Ed. 2d 844, cert. denied, 454 U.S. 819, 102 S. Ct. 100, 70 L. Ed. 2d 90 (1981).
Bankruptcy power is subject to U.S. Const., amend. 5, and under the bankruptcy power Congress may discharge the debtor's personal obligation, because, unlike the states, it is not prohibited from impairing the obligation of contracts. Jenkins v. Northwest Ga. Bank, 11 Bankr. 958 (Bankr. N.D. Ga. 1981); Hall v. Landmark Fin. Corp., 13 Bankr. 205 (Bankr. N.D. Ga. 1981); ITT Indus. Credit Co. v. Scarboro, 13 Bankr. 439 (M.D. Ga. 1981).
- As federal district courts have personal jurisdiction in federal bankruptcy actions over any person with minimum contacts with the United States, and as the federal Bankruptcy Act (T. 11, U.S.C.) permits nationwide service of process, a federal district court had ancillary personal jurisdiction over a nonresident defendant in a "non-core," related bankruptcy proceeding. This was true even though the defendant lacked minimum contacts with the forum state. Chemical Bank v. Grigsby's World of Carpet, Inc. (In re WWG Indus., Inc.), 44 Bankr. 287 (N.D. Ga. 1984).
The minimum contacts analysis applicable in a federal bankruptcy proceeding requires only that the defendant be within the territorial boundaries of the United States. Wallace v. Milrob Corp. (In re Rusco Indus., Inc.), 104 Bankr. 548 (Bankr. S.D. Ga. 1989).
While U.S. Const., amend. 5 forbids destruction of a contract it does not prohibit bankruptcy legislation affecting creditor's remedy for its enforcement against debtor's assets, or the measure of the creditor's participation therein, if the statutory provisions are consonant with a fair, reasonable, and equitable distribution of those assets. ITT Indus. Credit Co. v. Scarboro, 13 Bankr. 439 (M.D. Ga. 1981).
There is a significant difference between property interest and contract as respects exertion of bankruptcy power, since the Constitution does not forbid impairment of the obligation of the latter. ITT Indus. Credit Co. v. Scarboro, 13 Bankr. 439 (M.D. Ga. 1981).
Although provisions of Bankruptcy Code (T. 11, U.S.C.) ultimately impair obligation of contracts, this impairment alone does not constitute denial of due process. In re Scales, 10 Bankr. 981 (Bankr. N.D. Ga. 1981); In re Colston, 11 Bankr. 251 (Bankr. N.D. Ga. 1981).
While creditors are required to pay fee to file complaint initiating adversary proceeding in court, debtors are not required to pay. This policy does not unfairly discriminate against creditors in violation of the equal protection guaranties of U.S. Const., amend. 5. Maddox v. Southern Disct. Co., 34 Bankr. 801 (Bankr. N.D. Ga. 1982).
- Chapter 12 of the Bankruptcy Code (11 U.S.C. § 1201 et seq.), designed specifically for farmers and intended to meet a perceived crisis in the agricultural community, does not, on its face, violate the taking and due process clauses of the Fifth Amendment and therefore does not exceed the bankruptcy powers of Congress. Travelers Ins. Co. v. Bullington, 89 Bankr. 1010 (M.D. Ga. 1988), aff'd, 878 F.2d 354 (11th Cir. 1989).
- Although state law prescribes the method for conducting a foreclosure, a mortgagor's equity of redemption rights constitute property protected by the due process clause of the Fifth Amendment. Foster v. F & M Bank, 105 Bankr. 746 (Bankr. M.D. Ga. 1989).
- Due process is violated when a claimant is deprived of the claimant's property for an unreasonable amount of time prior to a hearing on the merits, not when there is a delay that postpones the seizure of the property. Nnadi v. Richter, 976 F.2d 682 (11th Cir. 1992).
Congress does not have an unlimited right to tax the citizenry. A federal statute passed under the taxing power may be so arbitrary and capricious as to violate the due process of law clause of U.S. Const., amend. 5. Fears v. United States, 386 F. Supp. 1223 (N.D. Ga. 1975), aff'd, 518 F.2d 1405 (5th Cir. 1975).
- It is not a constitutional defense to a tax that the taxpayer is not directly benefited from a tax or is less benefited than others who pay the same or less tax. Fears v. United States, 386 F. Supp. 1223 (N.D. Ga. 1975), aff'd, 518 F.2d 1405 (5th Cir. 1975).
- U.S. Const., amend. 5 bars the withholding of taxes to support a social welfare program only if the statute manifests a patently arbitrary classification, utterly lacking in rational justification. Fears v. United States, 386 F. Supp. 1223 (N.D. Ga. 1975), aff'd, 518 F.2d 1405 (5th Cir. 1975).
- Allowing the rights of a taxpayer to a hearing on the assessment of the taxpayer's property to be cut off by passage of time or the independent action of other parties would be violative of due process, unless caused by culpable or negligent conduct on the part of the taxpayer. Ward v. Landrum, 140 Ga. App. 497, 231 S.E.2d 347 (1976).
- Where a city has obtained jurisdiction to make an assessment against an abutting property owner's property for the purpose of paving a street, and all the provisions and requirements of the special act authorizing such assessment have been complied with by the city, and the abutting property owner has been given fair opportunity to object to the street improvement and the assessment against the property therefor, but fails to object and then stands by and sees the street paving improvements made at expense to the city, without entering any objection thereto, the property owner is then estopped to raise the question that the assessment was confiscatory and void in that it deprived the property owner of the property in violation of the due process clause of the state and federal Constitutions, although under the facts of the case this point would have been good and could have been sustained had it been raised in time. City of Waycross v. Harrell, 59 Ga. App. 615, 1 S.E.2d 681 (1939).
- Act approved March 29, 1937, Ga. L. 1937, p. 624 (now repealed), providing that no person should establish a public dance hall, boxing or wrestling arena, or amusement place, tourist camps, and barbecue stands, for money or profit, outside the limits of incorporated towns or cities of a certain minimum population without first obtaining the permission of the commissioners or other authority in charge of such counties, and conferring authority on them to grant or refuse such permission for such time or under such regulations as they might deem proper for the public good, to levy a license or occupational tax on the same and to provide punishment for a violation of the act was not violative of the due process and equal protection clauses of the state and federal Constitutions, nor of Ga. Const. 1877, Art. III, Sec. I, Para. I (see Ga. Const. 1983, Art. III, Sec. I, Para. I), vesting legislative power in the General Assembly. Ingram v. State, 193 Ga. 565, 19 S.E.2d 493 (1942).
All property is held subject to the police power of the state. The due process clauses are not intended to limit the right of the state to properly exercise the police power in the enhancement of public safety. The police power has never been surrendered by the states and to the exercise of police power, all rights of natural persons and corporations are subject. McCoy v. Sanders, 113 Ga. App. 565, 148 S.E.2d 902 (1966).
Damages cannot be recovered for expenses incurred obeying a police regulation enacted for the common welfare and safety of the public. McCoy v. Sanders, 113 Ga. App. 565, 148 S.E.2d 902 (1966).
- It is not an unreasonable exercise of the police power to require that a licensee, whether as an individual or as a member of a partnership, must have been a resident of the county for one year preceding the application for license. There is a reasonable basis for distinction between wholesale and retail dealers, and the residence requirement as to retail dealers is not unfairly discriminatory because it does not apply to wholesale dealers. Bonner v. Maddox, 227 Ga. 598, 182 S.E.2d 122 (1971).
Benefits conferred by the government cannot be conditioned on the relinquishment of constitutional rights. Roberts v. Cameron-Brown Co., 410 F. Supp. 988 (S.D. Ga. 1975), rev'd on other grounds, 556 F.2d 356 (5th Cir. 1977).
- When the government extends privileges or benefits to its citizens, the individual has little or no meaningful choice but to accept the benefits on whatever conditions the government chooses to impose. It would make no sense to allow the government to exact prospective due process waivers as a matter of course. The individual has no real choice but to submit to the waiver, and, if waiver were possible, due process protections would be quickly and thoroughly erased. Roberts v. Cameron-Brown Co., 410 F. Supp. 988 (S.D. Ga. 1975), rev'd on other grounds, 556 F.2d 356 (5th Cir. 1977).
The state cannot condition the granting of even a privilege upon the renunciation of the constitutional right to procedural due process. Roberts v. Cameron-Brown Co., 410 F. Supp. 988 (S.D. Ga. 1975), rev'd on other grounds, 556 F.2d 356 (5th Cir. 1977).
- To have a property interest in a benefit, a person clearly must have more than an abstract need or desire for it. The person must have more than a unilateral expectation of it. Sims v. Fox, 505 F.2d 857 (5th Cir. 1974), cert. denied, 421 U.S. 1011, 95 S. Ct. 2415, 44 L. Ed. 2d 678 (1975).
- If the goals sought by legislation are legitimate, and the classification adopted is rationally related to the achievement of those goals, then such action of Congress is not so arbitrary as to violate the due process clause of U.S. Const., amend. 5. Fears v. United States, 386 F. Supp. 1223 (N.D. Ga.), aff'd, 518 F.2d 1405 (5th Cir. 1975).
The test for a statutory classification in the social welfare area challenged under the due process clause of U.S. Const., amend. 5 is the same as the standard under the equal protection clause of U.S. Const., amend. 14, that is, if the classification does not implicate a constitutionally-suspect class or a fundamental constitutional right, the classification is constitutional if it is rationally related to furthering a legitimate state interest. Bussey v. Harris, 611 F.2d 1001 (5th Cir. 1980).
- A statutory classification in the area of social welfare is consistent with the equal protection clauses of U.S. Const., amend. 5 and U.S. Const., amend. 14, if it is rationally based and free from invidious discrimination. Fears v. United States, 386 F. Supp. 1223 (N.D. Ga.), aff'd, 518 F.2d 1405 (5th Cir. 1975).
Congress is not constitutionally obligated to solve all social problems at one time. It may select one phase of one field and apply a remedy there, neglecting the others. Winningham v. United States Dep't of HUD, 512 F.2d 617 (5th Cir. 1975).
In economics and social welfare, a statute is not unconstitutional merely because its classifications are imperfect. Winningham v. United States Dep't of HUD, 512 F.2d 617 (5th Cir. 1975).
- In a statutory classification scheme in the social welfare area, if the classification neither implicates a constitutionally-suspect class nor a fundamental constitutional right, underinclusion that is not irrational does not violate U.S. Const., amend. 5 because equal protection does not require that all evils of the same genus be eradicated or none at all. Bussey v. Harris, 611 F.2d 1001 (5th Cir. 1980).
- The due process clause of U.S. Const., amend. 5 prohibits the federal government from creating statutes that establish arbitrary discrimination having no rational basis in legitimate governmental purposes. Morris v. Richardson, 346 F. Supp. 494 (N.D. Ga. 1972), vacated on other grounds, 409 U.S. 464, 93 S. Ct. 629, 34 L. Ed. 2d 647 (1973).
Where an unconstitutional deprivation of a government benefit is alleged, there must be a three-part inquiry to determine: whether the programs involve sufficient government action to invoke federal constitutional protections, whether the private interest involved is a property or liberty interest within the meaning of the due process clause, and after balancing the various interests involved, what procedure is appropriate for the protection of the private interest. Bloodworth v. Oxford Village Townhouses, Inc., 377 F. Supp. 709 (N.D. Ga. 1974).
- Because a plaintiff in a civil rights case prosecuted under 42 U.S.C. § 1983 alleging excessive force used in an arrest may receive compensatory damages for such things as physical pain and suffering and mental and emotional anguish, and because such a plaintiff whose constitutional rights are violated is entitled to receive nominal damages even if the plaintiff fails to produce any evidence of compensatory damages, the district court erred in granting judgment to defendant officers as a matter of law. Slicker v. Jackson, 215 F.3d 1225 (11th Cir. 2000).
Burden is on the one complaining of a due process violation by a regulatory agency to establish that the agency has acted in an arbitrary and irrational way. A regulation is valid if it has a rational basis. Springdale Convalescent Ctr. v. Mathews, 545 F.2d 943 (5th Cir. 1977), disapproved on other grounds, Bowen v. Georgetown Univ. Hosp., 488 U.S. 204, 109 S. Ct. 468, 102 L. Ed. 2d 493 (1988).
Homosexual couple did not have constitutional rights violated when bankruptcy court ruled that 11 U.S.C.A. § 302 did not apply to them as they were not legally married. Bone v. Allen, 186 Bankr. 769 (Bankr. N.D. Ga. 1995).
- No constitutional right to a trial exists when after notice and a reasonable opportunity a party fails to make a rule-required demonstration that some dispute of material fact exists which a trial could resolve. Oglesby v. Terminal Transp. Co., 543 F.2d 1111 (5th Cir. 1976).
- Since denial of social security survivors' benefits to illegitimate children will not deter persons from entering into illicit relations, promotion of legitimate family relationships by condemnation of illegitimate relationships and their progeny is not acceptable rational justification for a statute discriminating between legitimate and illegitimate children in allocating survivor's benefits. Morris v. Richardson, 346 F. Supp. 494 (N.D. Ga. 1972), vacated on other grounds, 409 U.S. 464, 93 S. Ct. 629, 34 L. Ed. 2d 647 (1973).
- A federal social security provision which allows illegitimate children to receive survivor's benefits only from the residual benefits, if any, remaining after the insured's surviving legitimate children have received their individual maximum shares violates U.S. Const., amend. 5 and U.S. Const., amend. 14, since the discrimination between legitimate and illegitimate children under the statute in question bears no rational connection to the purposes of the Social Security Act. Morris v. Richardson, 346 F. Supp. 494 (N.D. Ga. 1972), vacated on other grounds, 409 U.S. 464, 93 S. Ct. 629, 34 L. Ed. 2d 647 (1973).
- The rules promulgated by the Department of Medical Assistance (now Department of Community Health) restricting reimbursement to medicaid enrollees for medically necessary abortions are inconsistent with Title XIX of the Social Security Act, 42 U.S.C. § 1396 et seq., and because the plaintiff classes will suffer irreparable injury for which there is no adequate legal remedy, the defendants, their agents and employees, must be permanently enjoined from refusing to provide medicaid reimbursement to the members of the plaintiff classes for the provision of all medically necessary abortions. Doe v. Busbee, 481 F. Supp. 46 (N.D. Ga. 1979).
The restrictions on reimbursement for abortions contained in this state's rules amount to a denial or reduction of a required service to an otherwise eligible recipient solely because of that eligible recipient's condition, that is, pregnancy, and furthermore, these restrictions are not based on medical necessity or utilization control procedures nor is any contention made by the defendants in this action that the abortions sought by the plaintiffs were not medically necessary or presented utilization control problems; therefore, under 42 C.F.R. § 440.230(c) the Georgia Department of Medical Assistance (now Department of Community Health) must provide reimbursement for these medically necessary abortions. Doe v. Busbee, 481 F. Supp. 46 (N.D. Ga. 1979).
- Federal constitutional law does not require a state to provide its citizens with protective services in the event of medical emergencies. Even if the state undertakes to provide protective services in medical emergency services, its failure to render same in a proper manner or in violation of state law does not violate the Due Process Clause of the United States Constitution, unless the state created the medical emergency or the person was in state custody or control at the time of the emergency. Hendon v. DeKalb County, 203 Ga. App. 750, 417 S.E.2d 705, cert. denied, 203 Ga. App. 906, 417 S.E.2d 705 (1992).
- The fact that railroad employees pay a greater amount for retirement benefits under a federal pension plan than under federal Social Security Act is not a denial of equal protection. Fears v. United States, 386 F. Supp. 1223 (N.D. Ga.), aff'd, 518 F.2d 1405 (5th Cir. 1975).
Tenants in federally-subsidized public housing project are entitled, under U.S. Const., amend. 5, to limited procedural due process safeguards, before a rent increase is approved, because such tenants have a sufficient property interest in low-cost housing to entitle them to some due process protection. Dew v. McLendon Gardens Assocs., 394 F. Supp. 1223 (N.D. Ga. 1975).
Only private associations have the right to obtain a waiver of notice and hearing before depriving a member of a valuable right. Roberts v. Cameron-Brown Co., 410 F. Supp. 988 (S.D. Ga. 1975), rev'd on other grounds, 556 F.2d 356 (5th Cir. 1977).
- The constitutional limitations imposed by due process requirements for the taking of property and liberty were not implicated by a public utility's actions as a private actor in terminating plaintiff's employment pursuant to the positive results of a urinalysis drug screening test, as defendant was under no governmental compulsion in administering the test. Parker v. Atlanta Gas Light Co., 818 F. Supp. 345 (S.D. Ga. 1993).
- Constitutional due process requirements are applicable in some situations to persons and organizations in the private sector. Roberts v. Cameron-Brown Co., 410 F. Supp. 988 (S.D. Ga. 1975), rev'd on other grounds, 556 F.2d 356 (5th Cir. 1977).
- There can be such an interdependence between the federal government and private companies so as to subject the actions of the private companies to the procedural due process mandated by U.S. Const., amend. 5. Roberts v. Cameron-Brown Co., 410 F. Supp. 988 (S.D. Ga. 1975), rev'd on other grounds, 556 F.2d 356 (5th Cir. 1977).
- In determining whether the due process mandates are applicable to private bodies, the initial question is whether the state or the federal government has become so involved in the conduct of these otherwise private bodies that their activities are also the activities of these governments and performed under their aegis without the private body necessarily becoming either their instrumentality or agent in a strict sense. Roberts v. Cameron-Brown Co., 410 F. Supp. 988 (S.D. Ga. 1975), rev'd on other grounds, 556 F.2d 356 (5th Cir. 1977).
- There is no independent legal right to counsel or other aspects of due process at a company level disciplinary hearing. Clark v. Seaboard Coast Line R.R., 332 F. Supp. 380 (N.D. Ga. 1970).
Permanent or classified state employee has sufficient property interest in the job to warrant due process protection, even though such protection may not include the right to a pretermination hearing. Eley v. Morris, 390 F. Supp. 913 (N.D. Ga. 1975).
Government employee may not be deprived of the property or liberty interest in continued government employment absent due process. Eley v. Morris, 390 F. Supp. 913 (N.D. Ga. 1975).
Procedural due process does not entitle a public employee to a full evidentiary hearing prior to discharge. Eley v. Morris, 390 F. Supp. 913 (N.D. Ga. 1975).
Post-termination hearing is sufficient to protect interests of a discharged government employee meriting due process protection, whether those interests are in the nature of property or liberty. Eley v. Morris, 390 F. Supp. 913 (N.D. Ga. 1975).
Adequate pretermination procedures for public employees need not include a full, evidentiary hearing, provided an employee is protected by a timely and effective post-discharge hearing procedure. Eley v. Morris, 390 F. Supp. 913 (N.D. Ga. 1975).
- Adequate pretermination procedures for public employees may contain some provision for exceptional cases warranting an immediate discharge. Eley v. Morris, 390 F. Supp. 913 (N.D. Ga. 1975).
- A statutory and regulatory scheme governing the termination of classified state employees covered by the State Merit System is unconstitutional if it fails to provide a list of specific charges prior to termination and in failing to provide for a pretermination hearing or other meaningful opportunity to protect employees' interests before termination. Eley v. Morris, 390 F. Supp. 913 (N.D. Ga. 1975).
- Whether a school system requires additional funds is a matter of legitimate public concern on which the judgment of the school administration, including the school board, cannot, in a society that leaves such questions to popular vote, be taken as conclusive. On such a question free and open debate is vital to informed decision-making by the electorate. Teachers, as a class, are the members of the community most likely to have informed and definite opinions as to how funds allotted to the operation of the schools should be spent. Accordingly, it is essential that they be able to speak out freely on such questions without fear of retaliatory dismissal. Lindsey v. Board of Regents, 607 F.2d 672 (5th Cir. 1979).
Student cannot be suspended without a hearing complying with due process, regardless of a purported waiver in the school board's regulations. Roberts v. Cameron-Brown Co., 410 F. Supp. 988 (S.D. Ga. 1975), rev'd on other grounds, 556 F.2d 356 (5th Cir. 1977).
- Students facing temporary suspension have interests qualifying for protection of the due process clause, and due process requires, in connection with a suspension of ten days or less, that the student be given oral or written notice of the charges against the student and, if the student denies them, an explanation of the evidence the authorities have and an opportunity to present the student's side of the story. Eley v. Morris, 390 F. Supp. 913 (N.D. Ga. 1975).
- Due process requires a clear and convincing standard of proof in a civil proceeding to commit an individual to a mental hospital involuntarily. Pitts v. State, 151 Ga. App. 691, 261 S.E.2d 435 (1979).
- Because the defendant in a hearing for release from a hospital had been examined three separate times to determine mental competency in relation to a criminal trial, and there had been a judicial determination that the defendant was not mentally responsible for the crimes and apparently not competent to stand trial, there existed a continuing presumption of insanity at the time of the release hearing. Pitts v. State, 151 Ga. App. 691, 261 S.E.2d 435 (1979).
- The Anti-Drug Abuse Act of 1986 (21 U.S.C. § 841 et seq.) worked no violation of due process in fixing the punishment for cocaine base offenses substantially higher than similar offenses involving other forms of cocaine, as it had a rational purpose for doing so in attempting to reduce greater risks and dangers distinguishing the drugs, and as it was not proven to adversely impact on non-whites. United States v. Mosley, 808 F. Supp. 1572 (N.D. Ga. 1992).
- Due process does not require that a separate hearing or jury trial be held when the judge makes a finding of fact that a child is not amenable to treatment or rehabilitation in the juvenile court system. Long v. Powell, 388 F. Supp. 422 (N.D. Ga.), vacated on other grounds, 423 U.S. 808, 96 S. Ct. 18, 46 L. Ed. 2d 28 (1975).
Forty days commitment to an adult imprisonment facility is not a "reasonably short time," and such delay in transferring a juvenile to a Department of Human Resources facility violates due process as well as the legislative intent of § 15-11-38. Long v. Powell, 388 F. Supp. 422 (N.D. Ga.), vacated on other grounds, 423 U.S. 808, 96 S. Ct. 18, 46 L. Ed. 2d 28 (1975).
- Where the state treats a juvenile proceeding as civil, thereby denying the child certain important rights which would be available in a criminal proceeding, and proceeds on the premise that the state is acting as parens patriae in order to provide measures of guidance and rehabilitation for the child and protection of society, and not to fix criminal responsibility, guilt and punishment, committing the child for rehabilitative treatment which the state knows to be inadequate constitutes a violation of the child's right to due process. Long v. Powell, 388 F. Supp. 422 (N.D. Ga.), vacated on other grounds, 423 U.S. 808, 96 S. Ct. 18, 46 L. Ed. 2d 28 (1975).
Hospital authority may restrict a staff member's privileges by reasonable and nondiscriminatory rules and regulations. Yeargin v. Hamilton Mem. Hosp., 229 Ga. 870, 195 S.E.2d 8 (1972).
- Although trial by a military tribunal deprives one of trial by jury and other constitutional rights, it is not unconstitutional. However, military jurisdiction is restricted to the narrowest limits consistent with the power granted Congress in U.S. Const., art. I, sec. VIII. Torres v. Connor, 329 F. Supp. 1025 (N.D. Ga. 1970).
In the military judicial system, improper command influence violates impartial hearing requirements under U.S. Const., amend. 5. Calley v. Callaway, 382 F. Supp. 650 (M.D. Ga. 1974), rev'd on other grounds, 519 F.2d 184 (5th Cir. 1975), cert. denied, 425 U.S. 911, 96 S. Ct. 1505, 47 L. Ed. 2d 760 (1976).
Fixing of a minimum wage is within the legislative power and is not a denial of due process under U.S. Const., amend. 5 or U.S. Const., amend. 14. United States v. Darby, 312 U.S. 100, 61 S. Ct. 451, 85 L. Ed. 609 (1941).
- Establishment of minimum wages by the Fair Labor Standards Act, 29 U.S.C. § 201 et seq., is not arbitrary or capricious or an unreasonable interference with liberty of contract in violation of the due process clause of U.S. Const., amend. 5. Morgan v. Atlantic Coast Line R.R., 32 F. Supp. 617 (S.D. Ga. 1940).
- Although statutes which indemnify women for past discrimination have been approved, more than blanket declaration of this objective is required as justification for gender-based distinctions. With regard to the constitutionality of gender-based classifications, it must be ascertained whether women have in fact been significantly discriminated against in the sphere to which the statute applied a sex-based classification. Crist v. Crist, 632 F.2d 1226 (5th Cir. 1980), cert. denied, 451 U.S. 986, 101 S. Ct. 2321, 68 L. Ed. 2d 844, cert. denied, 454 U.S. 819, 102 S. Ct. 100, 70 L. Ed. 2d 90 (1981).
- Utility customers must show they have a legal entitlement to or a vested right in the utility rates being charged before any proposed increase, before they can claim any property rights protected by the United States Constitution. Georgia Power Project v. Georgia Power Co., 409 F. Supp. 332 (N.D. Ga. 1975).
Utility customers have no sufficient property interest in a given utility rate increase to invoke the procedural protections of the due process clause of U.S. Const., amend. 14. Georgia Power Project v. Georgia Power Co., 409 F. Supp. 332 (N.D. Ga. 1975).
The fact that utility customers have an interest in lower electric rates, an interest which they share with all consumers, does not mean that they have a sufficient property interest in lower rates to invoke constitutional due process protection. Their interest is much too general; that is, their interest is shared by practically everyone. In this sense their interest is somewhat abstract. However, the simple fact that an interest is shared by everyone does not automatically mean that it is not deserving of constitutional protection. Nevertheless most of the United States Supreme Court cases in this area involve either individual claims of entitlement of identifiable classes for whom a benefit was specifically intended. Georgia Power Project v. Georgia Power Co., 409 F. Supp. 332 (N.D. Ga. 1975).
Governmental attack on one's reputation may infringe constitutionally protected liberty. First, governmental degradation of one's standing in one's community may be denial of liberty and, second, governmental communication of derogatory information to employers may be an attack on liberty. Sims v. Fox, 505 F.2d 857 (5th Cir. 1974), cert. denied, 421 U.S. 1011, 95 S. Ct. 2415, 44 L. Ed. 2d 678 (1975).
Liberty is not infringed by the mere presence of derogatory information in confidential files. Sims v. Fox, 505 F.2d 857 (5th Cir. 1974), cert. denied, 421 U.S. 1011, 95 S. Ct. 2415, 44 L. Ed. 2d 678 (1975).
- The contention that former Code 1933, §§ 84-701 and 84-702 (see O.C.G.A. §§ 43-11-2 and43-11-17) are unconstitutional because they violate the due process clauses of the Constitution of the United States and the privileges and immunities clauses thereof, as set forth in U.S. Const., amends. 5 and 14 and likewise violates the due process clause of the Constitution of Georgia is without merit. Hortman v. Yarbrough, 214 Ga. 693, 107 S.E.2d 202 (1959).
- The classification of cocaine by the General Assembly as a narcotic drug, when there is scientific evidence to the contrary, does not violate the due process and equal protection clauses of the United States and Georgia Constitutions. Robinson v. State, 244 Ga. 15, 257 S.E.2d 523 (1979).
- There is no due process bar under U.S. Const., amend. 5 to conviction because of electronic taping of an incident by police officers who anticipated the offense. Cross v. Georgia, 581 F.2d 102 (5th Cir. 1978).
Right to wear one's hair as one sees fit has not been found to be within the periphery of any of the specific constitutional rights. Ashley v. City of Macon, 377 F. Supp. 540 (M.D. Ga. 1974), aff'd, 505 F.2d 868 (5th Cir. 1975).
- 31 U.S.C. § 463, providing for discharge, by payment in legal tender, of obligations for payment in gold or any particular coin or currency, or in money of the United States measured thereby, of the then standard weight and fineness, is not unconstitutional as in violation of U.S. Const., art. I, sec. VIII, as the exercise of a power not delegated to the Congress, nor in violation of the due process clause of U.S. Const., amend. 5 or U.S. Const., amend. 10. Smith v. Bukofzer, 180 Ga. 585, 180 S.E. 358 (1935).
Decision by the United States Postal Service to move its postal operations to a different building does not deprive any class of plaintiffs of property or liberty, and, consequently, notice and hearing are not constitutionally mandated. NAACP v. United States Postal Serv., 398 F. Supp. 562 (N.D. Ga. 1975).
Section 717 of Title VII of the Civil Rights Act of 1964, 42 U.S.C., § 2000e-16, is the exclusive, preemptive, administrative, and judicial remedy for the redress of federal employment discrimination, but is not a remedy for the denial of due process not based on race (or any of the other proscribed classes). Grier v. Headquarters, United States Army Forces Command, 574 F. Supp. 183 (N.D. Ga. 1983), aff'd in part, and modified in part on other grounds, 799 F.2d 721 (11th Cir. 1990).
United States Constitution does not create property interests; rather, they are created and their dimensions are defined by existing rules or understandings that stem from an independent source such as state law. Winkler v. County of DeKalb, 648 F.2d 411 (5th Cir. 1981).
Mutually recognized entitlement will receive constitutional protection, although a unilateral expectation of a benefit does not rise to the level of a protected interest. Winkler v. County of DeKalb, 648 F.2d 411 (5th Cir. 1981).
There is no constitutionally protected right to government employment. Favors v. Ruckelshaus, 569 F. Supp. 363 (N.D. Ga. 1983).
- A government agency does not violate U.S. Const., amend. 5 by: (1) withholding a promotion; or (2) requiring an employee to perform certain duties without added compensation. Favors v. Ruckelshaus, 569 F. Supp. 363 (N.D. Ga. 1983).
- Discharged Federal Bureau of Investigation agent did not have a protectable property right in the agent's job. Painter v. FBI, 537 F. Supp. 232 (N.D. Ga.), aff'd, 694 F.2d 255 (11th Cir. 1982).
- Recipients have no constitutionally protected property interest against a direct or an indirect diminution by Congress of their old age, survivors, and disability benefits under the Social Security Act. Oliver v. Ledbetter, 821 F.2d 1507 (11th Cir. 1987).
- The regulations and policy requiring that old age, survivors, and disability insurance benefits received by children must be included in calculating their coresident siblings' eligibility for assistance under the aid to families with dependent children program do not deny them substantive due process by imposing a financial burden on a sibling who bears no financial responsibility for brothers or sisters, nor by depriving the sibling of property to which the sibling is entitled, without just compensation in violation of the fifth and fourteenth amendments, nor are the siblings deprived of procedural due process when a sibling is denied property to which the sibling is legally entitled without a hearing. Oliver v. Ledbetter, 821 F.2d 1507 (11th Cir. 1987).
Procreation is a fundamental right. Motes v. Hall County Dep't of Family & Children Servs., 251 Ga. 373, 306 S.E.2d 260 (1983).
- The seriousness of an individual's interest at stake in a state initiated sterilization proceeding is such that due process requires "clear and convincing evidence" to authorize the sterilization of an individual. The standard of a "legal preponderance" set by former O.C.G.A. § 31-20-3(c)(4) did not meet constitutional requirements. Motes v. Hall County Dep't of Family & Children Servs., 251 Ga. 373, 306 S.E.2d 260 (1983).
- It is a denial of due process to order a defendant to pay temporary child support prior to an adjudication of paternity. Hulen v. State, 207 Ga. App. 465, 428 S.E.2d 405 (1993).
"Doctrine of binding precedent" was violative of due process as applied to situation where defendant was granted summary judgment in the driver's claim for damages resulting from a collision after the passenger's case was tried before a jury and resulted in a verdict for defendants. Stanley v. Booz, 179 Ga. App. 257, 346 S.E.2d 1 (1986).
Unadmitted aliens did not have nonconstitutionally-based liberty interests subject to due process protections which would entitle them to parole revocation hearings. Garcia-Mir v. Meese, 788 F.2d 1446 (11th Cir.), cert. denied, 479 U.S. 889, 107 S. Ct. 289, 93 L. Ed. 2d 263 (1986).
- Prior to the rendering of a final order of removal, deportable aliens enjoy greater constitutional procedural due process rights than do aliens who are first seeking entry to this country. Sengchanh v. Lanier, 89 F. Supp. 2d 1356 (N.D. Ga. 2000).
A deportable alien's detention cannot be excessive and such a determination requires a fact specific analysis, including consideration of the length of the alien's likely detention, the likelihood of deportation, the potential length of future detention, the likelihood of flight, and the danger to the community posed by the alien if he or she is released. Sengchanh v. Lanier, 89 F. Supp. 2d 1356 (N.D. Ga. 2000).
- Court's failure to notify plaintiffs with claims pending against the alleged tortfeasor in several different states, of the certification of a mandatory class in a mass tort case hearing, violated due process. In re Temple, 851 F.2d 1269 (11th Cir. 1988).
- Licensee was not denied due process and equal protection in the Department of Public Safety hearing simply because the hearing officer had no authority or discretion to reinstate an habitual violator. Hardison v. Booker, 179 Ga. App. 693, 347 S.E.2d 681 (1986).
- Even though interrogating police officers threatened to charge a witness with murder, threatened to lynch him, put words in the witness' mouth, and told the witness that the witness was headed for eternal damnation, and subjected another witness to similar treatment, there was no evidence of physical abuse or threats or improper inducements or promises in exchange for a statement implicating the defendant, and police misconduct was not so egregious as to constitute a violation of defendant's due process rights. Wilcox v. Ford, 813 F.2d 1140 (11th Cir.), cert. denied, 484 U.S. 925, 108 S. Ct. 287, 98 L. Ed. 2d 246 (1987).
Police use of gunfire against suspect armed with knife was not constitutionally excessive, because the suspect had just stabbed several people and refused to respond to the officers' demands to surrender. O'Neal v. DeKalb County, 850 F.2d 653 (11th Cir. 1988).
To be entitled to bring a claim of due process violations following termination, an employee must show that the employee has a property interest in continued employment. Abernathy v. City of Cartersville, 642 F. Supp. 529 (N.D. Ga. 1986).
White male who had been discriminated against in an application for the directorship of a city cyclorama had no substantive due process claims against the city because no property interest in obtaining city positions was created by the city code providing for appointment without regard to political affiliation. Walters v. City of Atlanta, 803 F.2d 1135 (11th Cir. 1986).
- Because a terminated university registrar was an at-will employee, the registrar had no property interest in the registrar's job and no due process claim. Moreover, by appealing directly to an administrative law judge, the registrar was afforded a full and fair hearing, fulfilling state and federal due process requirements. Bd. of Regents of the Univ. Sys. of Ga. v. Hogan, 298 Ga. App. 454, 680 S.E.2d 518 (2009).
- Regulations purporting to excuse compliance with a judgment and order of the federal district court which is "subject to review . . . by a higher reviewing authority" was invalid insofar as it might conflict with the order in the case or affect the jurisdiction of the court to fashion a remedy in the matter. Charter Medical Corp. v. Heckler, 604 F. Supp. 638 (M.D. Ga. 1985).
- A claim by federally employed pilots against their supervisors in their individual capacities for alleged deprivation of property - revocation of their pilot certificates - without due process failed, for the reason that the pilots had available to them administrative arenas in which to assert their claims. Wells v. FAA, 755 F.2d 804 (11th Cir. 1985).
- Attorney was properly served with notice and afforded due process of law where at least six notices were placed in the attorney's post office box as the last address that the attorney listed with the membership department of the State Bar after the attorney's failure to inform the State Bar of the attorney's new address. In re Bishop, 264 Ga. 241, 442 S.E.2d 734, cert. denied, 513 U.S. 987, 115 S. Ct. 483, 130 L. Ed. 2d 39 (1994).
- Attorneys and clients facing possible discipline under Fed. R. Civ. P. 11, regarding signing of pleadings, motions, and other papers, have interests qualifying for protection under the due process clause of the Fifth Amendment, and procedural due process requires notice and an opportunity to be heard before any governmental deprivation of a property interest. Donaldson v. Clark, 819 F.2d 1551 (11th Cir. 1987).
- Nothing in the text of Fed. R. Civ. P. Rule 11, regarding signing of pleadings, motions, and other papers, or in the Advisory Committee note, indicates that due process requires a court to follow the procedures called for by Fed. R. Crim. P. Rule 42(b) for criminal contempt proceedings before it can impose a monetary sanction pursuant to Fed. R. Civ. P. 11. Donaldson v. Clark, 819 F.2d 1551 (11th Cir. 1987).
- Since right to sue municipality is statutory, the Legislature may attach notice-of-claim requirement as precondition to maintenance of such suit. Shoemaker v. Aldmor Mgt., Inc., 249 Ga. 430, 291 S.E.2d 549 (1982).
Six-month time limit for presenting claims against a municipal corporation cannot be said to be unreasonable. Shoemaker v. Aldmor Mgt., Inc., 249 Ga. 430, 291 S.E.2d 549 (1982).
- It is not necessary that a party first expose oneself to actual arrest or prosecution to be entitled to challenge a statute that the party claims deters the exercise of the party's constitutional rights. American Booksellers Ass'n v. McAuliffe, 533 F. Supp. 50 (N.D. Ga. 1981).
Surviving relatives have no constitutionally protected due process right in a decedent's body. Georgia Lions Eye Bank, Inc. v. Lavant, 255 Ga. 60, 335 S.E.2d 127 (1985), cert. denied, 475 U.S. 1084, 106 S. Ct. 1464, 89 L. Ed. 2d 721 (1986).
- Pharmacist whose license had been properly revoked had no protectable property right in reinstatement of that license. Hicks v. Georgia State Bd. of Pharmacy, 553 F. Supp. 314 (N.D. Ga. 1982).
- Doctor was not denied due process when the doctor's hospital staff privileges were suspended prior to a hearing since the protection of human health and life is a valid governmental and medical interest permitting summary action preceding a hearing. Richards v. Emanuel County Hosp. Auth., 603 F. Supp. 81 (S.D. Ga. 1984).
- Hospital's offer to submit the question of doctor's competence to serve on the medical staff to a panel of three doctors not on the staff did not violate due process requirements, even assuming that the procedure was not part of the bylaws of the hospital. Richards v. Emanuel County Hosp. Auth., 603 F. Supp. 81 (S.D. Ga. 1984).
- While absence of a contractual right to employment does not preclude the existence of a property interest, plaintiff must show a mutually recognized entitlement, as opposed to a unilateral expectation of a benefit, to establish the existence of a property interest. Durham v. Jones, 698 F.2d 1179 (11th Cir. 1983).
- It is neither feasible nor constitutionally mandated for a city to provide notice and an opportunity to be heard prior to ticketing an illegally parked car. Armstrong v. Mayor of Savannah, 250 Ga. 121, 296 S.E.2d 690 (1982).
- O.C.G.A. § 40-6-315 does not violate due process on grounds that a motorcyclist cannot determine whether the motorcyclist is meeting the headgear requirements of the statute. ABATE of Ga., Inc. v. Georgia, 137 F. Supp. 2d 1349 (N.D. Ga. 2001), aff'd, 264 F.3d 1315 (11th Cir. 2001).
The motorcycle helmet law, O.C.G.A. § 40-6-315, does not require that the Georgia Board of Public Safety issue a list approving specific types of headgear and, therefore, the failure of the board to publish a list of approved headgear and eye-protective devices did not violate the plaintiff's rights under the first, fifth, and fourteenth amendments to the United States Constitution. ABATE of Ga., Inc. v. Georgia, 264 F.3d 1315 (11th Cir. 2001), cert. denied, 536 U.S. 924, 122 S. Ct. 2592, 153 L. Ed. 2d 781 (2002).
- Georgia's remedies for contesting tax assessments and collection practices are sufficient to protect taxpayers' federal rights. Ayers v. Polk County, 697 F.2d 1375 (11th Cir. 1983).
- In relation to the issuance of a writ of attachment by a federal court against bankers and stores located aboard a vessel, procedural due process did not require the posting of a preattachment bond, nor a preattachment ex parte hearing. A prompt post-garnishment hearing before a judge provided the maritime debtor with the procedure the debtor was due. Schiffahartsgesellschaft Leonhardt & Co. v. A. Bottacchi S.A. de Navegacion, 773 F.2d 1528 (11th Cir. 1985).
Right to travel is a privilege of national citizenship, and an aspect of liberty that is protected by the due process clauses of U.S. Const., amend. 5 and U.S. Const., amend. 14. Jones v. Helms, 452 U.S. 412, 101 S. Ct. 2434, 69 L. Ed. 2d 118 (1981).
- Section17-13-34, which authorizes a warrantless arrest by officers in this state upon reasonable information that an accused is charged in the courts of a state with a crime punishable by death or imprisonment for more than a year, is justified under the fourth, fifth, and fourteenth amendments, in that it is based upon a standard that comports with the constitutional standard of probable cause as set forth in Beck v. Ohio, 379 U.S. 89, 85 S. Ct. 223, 13 L. Ed. 2d 142 (1964); Ledesma v. State, 251 Ga. 487, 306 S.E.2d 629 (1983), cert. denied, 464 U.S. 1069, 104 S. Ct. 975, 79 L. Ed. 2d 213 (1984).
Person who has committed an offense against the laws of Georgia may be stopped at its borders and temporarily deprived of the freedom to travel elsewhere within or without the state. Jones v. Helms, 452 U.S. 412, 101 S. Ct. 2434, 69 L. Ed. 2d 118 (1981).
Permissive or rebuttable presumption that contraband found in a house belongs to the husband by virtue of the husband's statutory status as head of the household cannot withstand due-process scrutiny. Knighton v. State, 248 Ga. 199, 282 S.E.2d 102 (1981).
Government involvement in criminal schemes, where outrageous, offends due process, but to amount to a constitutional violation, the law enforcement techniques must be so outrageous that they are fundamentally unfair and shocking to the universal sense of justice, mandated by the due process clause of the Fifth Amendment. United States v. Mulherin, 710 F.2d 731 (11th Cir.), cert. denied, 464 U.S. 964, 104 S. Ct. 402, 78 L. Ed. 2d 343 (1983); 465 U.S. 1034, 104 S. Ct. 1305, 79 L. Ed. 2d 703 (1984).
- The government did not employ unconscionable conduct in the course of its investigation in violation of the defendant's rights under the due process clause by exploiting the defendant's severe financial problems and inducing the defendant to engage in fraudulent schemes despite the defendant's repeated insistence on legitimate business practices where the stipulated facts demonstrated not only that defendant had a predisposition to engage in the illegal activity but that the defendant played a significant role in the enterprise as well. United States v. Puett, 735 F.2d 1331 (11th Cir. 1984).
- Government conduct falls far short of a due process violation if, although a confidential government informant suggests an illegal activity and gives advice, it is the defendant who obtains the necessary equipment and supplies for the activity. United States v. Mulherin, 710 F.2d 731 (11th Cir.), cert. denied, 464 U.S. 964, 104 S. Ct. 402, 78 L. Ed. 2d 343 (1983); 465 U.S. 1034, 104 S. Ct. 1305, 79 L. Ed. 2d 703 (1984).
- Sentences given to two defendants, which were to be consecutive to their release from detention as illegal aliens, were not illegal despite the uncertainty as to when the exact date the sentences were to begin. United States v. Buide-Gomez, 744 F.2d 781 (11th Cir. 1984), cert. denied, 470 U.S. 1059, 105 S. Ct. 1774, 84 L. Ed. 2d 833 (1985).
Constitution imposes constraints on exercise of personal jurisdiction but not on location of permissible venues. Clement v. Pehar, 575 F. Supp. 436 (N.D. Ga. 1983).
- To apply the test of amenability to personal jurisdiction in a federal question case, the test of constitutionality, the appropriate inquiry lies with the due process of law clause of the Fifth Amendment. While the limitations imposed in the Fifth Amendment are similar to those imposed upon the state courts under the fourteenth amendment, they are not necessarily identical. Vest v. Waring, 565 F. Supp. 674 (N.D. Ga. 1983).
- In an action under the federal antitrust laws, it is sufficient for a federal court in Georgia to find, for purposes of exercising in personam jurisdiction over nonresident defendants, that if a conspiracy did or does exist, it appears to have had its genesis at a meeting occurring within the state of Georgia. Vest v. Waring, 565 F. Supp. 674 (N.D. Ga. 1983).
- While court approved notice to potential plaintiffs is necessary in a class action since class members will be bound by any judgment unless they opt out of the action, court involvement was not required in an action in which the only way an individual would be bound was if he or she affirmatively chose to opt into the action. Goerke v. Commercial Contractors & Supply Co., 600 F. Supp. 1155 (N.D. Ga. 1984).
Notice of levy given to a savings and loan association is sufficient to apprise persons claiming an interest in the account of a levy on that account under 26 U.S.C. §§ 6532(c) and 7426(a). Douglas v. United States, 562 F. Supp. 593 (S.D. Ga. 1983).
IRS is under no duty, constitutional or otherwise, to notify every person claiming an interest in property levied upon. Douglas v. United States, 562 F. Supp. 593 (S.D. Ga. 1983).
- Given a prison's obvious need to maintain security and order, and the need for administrative ease in implementing visitor regulations, the federal government had a rational basis for defining "representatives of the news media" so as to exclude independent journalists not affiliated with a federally recognized and licensed media organization from conducting interviews with prisoners. Jersawitz v. Hanberry, 610 F. Supp. 535 (N.D. Ga. 1985), aff'd, 783 F.2d 1532 (11th Cir.), cert. denied, 479 U.S. 883, 107 S. Ct. 272, 93 L. Ed. 2d 249 (1986).
- Failure to scrutinize a rezoning application in light of the character of the land in question and the impact of the zoning decision upon the property owner's rights amounts to a denial of due process. Sellars v. Cherokee County, 254 Ga. 496, 330 S.E.2d 882 (1985).
Peanut farmers did not have protected property interest in peanut quota allotments under the Agriculture and Food Act of 1981. Under the act, which created and defined quota rights, the farmers were entitled to their 1981 quota allotments as adjusted by the 1984 regulations of the secretary of agriculture, which amounted to a nominal allotment or none at all. Callaway v. Block, 763 F.2d 1283 (11th Cir. 1985).
- The provisions of the federal due process clause are inhibitions upon the power of government and its agencies rather than upon the freedom of action of private persons. DeLaigle v. Federal Land Bank, 568 F. Supp. 1432 (S.D. Ga. 1983), disapproved on other grounds, Smith v. Russellville Prod. Credit Ass'n, 777 F.2d 1544 (11th Cir. 1985).
- Private, operated-for-profit hospital's decision to change bylaws so as to allow only doctors eligible for membership in the American Medical and Dental Associations (AMA and ADA) to obtain medical staff privileges and thus denying defendants continued staff privileges because they were doctors of podiatric medicine ineligible for membership in the AMA or ADA was neither state nor federal action subject to scrutiny under the due process or equal protection clauses of the federal Constitution merely because the hospital derived 55 percent of its income from federal medicaid and Medicare funds, was licensed by the state and was regulated as a certified provider under the medicare and Medicaid programs. Todd v. Physicians & Surgeons Community Hosp., 165 Ga. App. 656, 302 S.E.2d 378 (1983).
- The heavy regulation of federal land banks does not transform these entities into governmental agencies. Therefore, a federal land bank is a private corporation without sufficient governmental involvement to support a cause of action under the federal due process clause of U.S. Const., amend. 5. DeLaigle v. Federal Land Bank, 568 F. Supp. 1432 (S.D. Ga. 1983), disapproved on other grounds, Smith v. Russellville Prod. Credit Ass'n, 777 F.2d 1544 (11th Cir. 1985).
Flight examiner's FAA certificate was a valuable Fifth Amendment property right because it afforded the flight examiner the means by which the flight examiner earned a living, and Fifth Amendment procedural due process protections were necessary before the certificate could be terminated. Green v. Brantley, 719 F. Supp. 1570 (N.D. Ga. 1989), vacated on other grounds, 981 F.2d 514 (11th Cir. 1993).
- Federal Securities Exchange Act statute specifying that the limitation period for certain civil actions commenced on or before June 19, 1991 shall be the limitation period provided by the laws applicable in the jurisdiction, including principles of retroactivity, as such laws existed on June 19, 1991, and reinstating certain dismissed actions, did not violate due process, even though it had an effect on pending litigation, nor did it violate equal protection since it did not affect a fundamental right or discriminate on the basis of a suspect classification and was rationally related to furthering its purpose of reinstating those causes of action that were timely when filed but which had been subsequently rendered untimely by a Supreme Court decision. Henderson v. Scientific-Atlanta, Inc., 971 F.2d 1567 (11th Cir. 1992), cert. denied, 510 U.S. 828, 114 S. Ct. 95, 126 L. Ed. 2d 262 (1993).
- Defendant could not have been convicted of aggravated assault based on a codefendant's beating of the victim because the defendant's indictment gave defendant no notice that defendant could be charged with and convicted of aggravated assault of the victim based on any method other than with the shotgun with which defendant shot the victim after the codefendant beat the victim. Petty v. Smith, 279 Ga. 273, 612 S.E.2d 276 (2005).
- So as not to be vague, indefinite, and uncertain so that U.S. Const., amend. 5 is violated, the language of the statute should convey sufficiently definite warning as to the proscribed conduct when measured by common understanding and practices. United States v. Fabro, Inc., 206 F. Supp. 523 (M.D. Ga. 1962).
Language of a statute must convey a sufficiently definite warning as to the proscribed conduct when measured by common understanding and practices. Johnson v. State, 246 Ga. 126, 269 S.E.2d 18 (1980).
Laws must give fair warning of what is proscribed, provide standards to see that they are not arbitrarily and discriminatorily applied, and be explicit enough to avoid a chilling effect. United States v. Irving, 509 F.2d 1325 (5th Cir.), cert. denied, 423 U.S. 931, 96 S. Ct. 281, 46 L. Ed. 2d 259 (1975).
- It is a basic principle of due process that an enactment is void for vagueness if its prohibitions are not clearly defined. United States v. Irving, 509 F.2d 1325 (5th Cir.), cert. denied, 423 U.S. 931, 96 S. Ct. 281, 46 L. Ed. 2d 259 (1975).
- Vagueness challenges to statutes which do not involve freedoms under U.S. Const., amend. 1, must be examined in light of facts of the case at hand. Hardison v. Shepard, 246 Ga. 196, 269 S.E.2d 458 (1980); State v. Hudson, 247 Ga. 36, 273 S.E.2d 616 (1981).
If a statute that does not involve freedoms under U.S. Const., amend. 1, is alleged to violate due process and equal protection, and if, from the record, it is impossible to determine the nature of the conduct giving rise to the charge under the statute, such statute cannot be declared void for vagueness on its face. State v. Hudson, 247 Ga. 36, 273 S.E.2d 616 (1981).
Application of due process with respect to vagueness and uncertainty is not applied as strictly to civil statutes as to those penal in nature. The rule is that a statute may be too vague and uncertain to be capable of enforcement as a penal statute and yet may be sufficiently certain to set forth a rule of civil conduct. Campbell v. J.D. Jewell, Inc., 221 Ga. 543, 145 S.E.2d 569 (1965).
- Even in statutes penal in nature, due process only requires that they be of such certainty and definiteness as would enable a person of ordinary intelligence to comprehend that the particular act the person proposes to do is forbidden by the statute. Campbell v. J.D. Jewell, Inc., 221 Ga. 543, 145 S.E.2d 569 (1965).
Doctrine of vagueness is anchored in due process clauses of U.S. Const., amend. 5 and U.S. Const., amend. 14. High Ol' Times, Inc. v. Busbee, 515 F. Supp. 176 (N.D. Ga. 1980), rev'd on other grounds, 673 F.2d 1225 (11th Cir. 1982).
Purpose of striking down statutes which are "vague" is to prevent the arbitrary enforcement of laws that fail to give officials or the public any notice of what is prohibited. American Booksellers Ass'n v. McAuliffe, 533 F. Supp. 50 (N.D. Ga. 1981).
Statutes should be construed as constitutional whenever possible; in certain situations, for example, the court may imply a missing mens rea element in a statute to give the statute constitutional viability. High Ol' Times, Inc. v. Busbee, 515 F. Supp. 176 (N.D. Ga. 1980), rev'd on other grounds, 673 F.2d 1225 (11th Cir. 1982).
Certain amount of vagueness must be tolerated in law-making due to inherent imprecision in language; all that due process requires is that the law give sufficient warning to enable a person to conform his or her conduct in accordance with the law and to guard against discriminatory enforcement. High Ol' Times, Inc. v. Busbee, 515 F. Supp. 176 (N.D. Ga. 1980), rev'd on other grounds, 673 F.2d 1225 (11th Cir. 1982).
- The fact that an insurer did not comply with a statutory provision and relied on precedent construing other statutes and on regulations that did not track with the statute did not make O.C.G.A. § 33-34-5 (repealed), relating to optional motor vehicle insurance coverage, unconstitutionally vague. State Farm Mut. Auto. Ins. Co. v. Bates, 542 F. Supp. 807 (N.D. Ga. 1982).
- A criminal statute is not unconstitutionally vague if it defines the criminal offense with sufficient definiteness that ordinary people can understand what conduct is prohibited and in a manner that does not encourage arbitrary and discriminatory enforcement. Due process is violated, however, when persons of ordinary intelligence must guess at a statute's meaning. United States v. Moody, 977 F.2d 1420 (11th Cir. 1992), aff'd, 977 F.2d 1425 (11th Cir. 1992), cert. denied, 507 U.S. 944, 113 S. Ct. 1348, 122 L. Ed. 2d 730 (1993).
- The trial court did not err in rejecting both the defendants' equal protection and vagueness challenges to O.C.G.A. § 16-17-1 et seq., after they were charged with violating O.C.G.A. § 16-17-2, as both the defendants, as in-state lenders, were not similarly situated with out-of-state banks designated in O.C.G.A. § 16-17-2(a)(3), and hence were subject to state regulation restricting high interest rates on loans, whereas the out-of-state banks were not; the Georgia legislature had a rational basis for creating a class based on those in-state payday lenders who were subject to state regulation, and moreover the prohibition against payday loans in whatever form transacted, was sufficiently definite to satisfy due process standards. Glenn v. State, 282 Ga. 27, 644 S.E.2d 826 (2007).
- In personam forfeiture provision of the Racketeer Influenced and Corrupt Organizations Act, O.C.G.A. § 16-14-7(m) provides for criminal in personam forfeiture prior to indictment or conviction, despite the labeling of such a proceeding by the Georgia legislature as being civil in nature and, because an in personam forfeiture defendant must accordingly be afforded all of the constitutional safeguards due a criminal defendant, Georgia's civil procedure rules, which § 16-14-7(m) expressly utilizes, are not adequate to protect an in personam forfeiture defendant's constitutional right. Therefore, § 16-14-7(m) is unconstitutional because the law deprives in personam forfeiture defendants of the safeguards of criminal procedure guaranteed by the United States and Georgia Constitutions. Cisco v. State, 285 Ga. 656, 680 S.E.2d 831 (2009).
Penal statute must be sufficiently explicit to inform those who are subject to it as to what conduct will render them liable to its penalties. If persons of common intelligence must guess at the meaning of a statute, the statute violates due process of law. United States v. Hawes, 529 F.2d 472 (5th Cir. 1976).
Flag burning falls within the range of acts proscribed by Code 1933, § 26-2803 (see O.C.G.A. § 50-3-9) and as defendants cannot say they did not have notice that their acts were in violation of the law it is not in violation of the due process provision of U.S. Const., amend. 5. Monroe v. State, 250 Ga. 30, 295 S.E.2d 512 (1982).
Absent some qualification on "bias or prejudice," O.C.G.A. § 17-10-17 is left so vague that persons of common intelligence must necessarily guess at its meaning and differ as to its application and, thus, O.C.G.A. § 17-10-17 is too vague to justify the imposition of enhanced criminal punishment for its violation; also, O.C.G.A. § 17-10-17 may not be upheld because it impermissibly delegates basic policy matters to policemen, judges, and juries for resolution on an ad hoc and subjective basis, with the attendant dangers of arbitrary and discriminatory applications; therefore, the sentence enhancement that defendants selected their victims because of racial bias and prejudice violated defendants' due process rights under U.S. Const., amend. 1, 5, 8, and 14 and the corresponding state constitutional provisions and accordingly defendants' sentence enhancements were reversed. Botts v. State, 278 Ga. 538, 604 S.E.2d 512 (2004).
New criminal statutes that punish a novel offense that has no established bounds are particularly susceptible to void for vagueness challenge. High Ol' Times, Inc. v. Busbee, 515 F. Supp. 176 (N.D. Ga. 1980), rev'd on other grounds, 673 F.2d 1225 (11th Cir. 1982).
Due process has two requirements: (1) laws must provide fair notice to persons of ordinary intelligence of the precise conduct proscribed; and (2) laws must provide standards and guidance to law enforcement officers, judges, and juries, to prevent arbitrary and discriminatory enforcement. High Ol' Times, Inc. v. Busbee, 515 F. Supp. 176 (N.D. Ga. 1980), rev'd on other grounds, 673 F.2d 1225 (11th Cir. 1982).
Law is void on its face if it is so vague that persons of common intelligence must necessarily guess at its meaning and differ as to its application, as a matter of due process. Purple Onion, Inc. v. Jackson, 511 F. Supp. 1207 (N.D. Ga. 1981).
Term "substantial assistance" in O.C.G.A. § 16-13-31(e)(2), reducing sentences for those convicted of drug trafficking, is not too vague for persons of ordinary intelligence to understand. Brugman v. State, 255 Ga. 407, 339 S.E.2d 244 (1986).
- While the definition of "mentally ill" in O.C.G.A. § 17-7-131 is not a model of specificity, the definition is sufficient to inform the jury of the meaning of a verdict of guilty but mentally ill and is not so vague as to violate due process. Cooper v. State, 253 Ga. 736, 325 S.E.2d 137 (1985).
- Claim of defendant that state sodomy statute violates due process and equal protection because it is selectively enforced against unmarried persons, and because "victims" are not prosecuted for engaging in the consensual conduct, failed where defendant did not establish the actual manner of enforcement. King v. State, 265 Ga. 440, 458 S.E.2d 98 (1995).
- The prohibition of loitering and prowling in the total context of O.C.G.A. § 16-11-36 is not void for vagueness insofar as it is limited to activity that amounts to a threat to the safety of persons or property. Bell v. State, 252 Ga. 267, 313 S.E.2d 678 (1984).
- City ordinance that includes as grounds for revocation of a license the violation of federal, state, or local law relating to drugs or alcoholic beverages was not unconstitutional for vagueness. Bryant v. Mayor, 252 Ga. 76, 311 S.E.2d 174 (1984).
- Fact that law providing grounds for terminating or suspending teachers' or principals' contracts could be construed as excluding some crimes as a basis for nonrenewal but not others does not in and of itself render it vague or overbroad, so as to deprive plaintiff whose contract was not renewed, due to the plaintiff's convictions for submitting false documents to the IRS, of due process. Logan v. Warren County Bd. of Educ., 549 F. Supp. 145 (S.D. Ga. 1982).
- A catchall category of "agent or agency not specifically mentioned" following a list of specifically covered occupations was sufficient description to include the occupation of using a talking cat to obtain economic benefits on the streets of the city. Miles v. City Council, 551 F. Supp. 349 (S.D. Ga. 1982), aff'd, 710 F.2d 1542 (11th Cir. 1983).
- The words "place of amusement" in former act forbidding establishment of certain businesses outside municipal limits without obtaining a license from municipal authorities was not so vague and indefinite that the same could not be made the basis of a criminal prosecution. Ingram v. State, 193 Ga. 565, 19 S.E.2d 493 (1942).
- The federal Anti-Drug Abuse Act of 1986 (21 U.S.C. § 841 et seq.) is not unconstitutionally vague - the term "cocaine base" encompasses "crack cocaine" and the statute gives a person of ordinary intelligence a reasonable opportunity to know what is prohibited. United States v. Mosley, 808 F. Supp. 1572 (N.D. Ga. 1992).
- O.C.G.A. § 16-13-2(b) did not violate due process by creating a mandatory presumption of guilt. The court interpreted it, as it had before, to render it valid and to carry out the legislative intent of establishing that possession of an ounce or less of marijuana was a misdemeanor. In the Interest of D.H., 285 Ga. 51, 673 S.E.2d 191 (2009).
Trial court did not err in granting a city summary judgment in a lessee's declaratory judgment action seeking an order declaring that City of Forest Park, Ga., Ordinance § 9-8-45 was unconstitutional because the ordinance was sufficiently definite so that a person of ordinary intelligence need not guess at its meaning; although the lessee contended that the phrase "without limitation of the generality of the foregoing" opened the definition of "public sidewalk" to include any space that the city later wished to assert fell under the ordinance, the specification of parking spaces and other areas intended for public travel did not permit the interpretation the lessee contended. Braley v. City of Forest Park, 286 Ga. 760, 692 S.E.2d 595 (2010).
- Municipal beer license ordinance, prohibiting the granting of beer or wine licenses to businesses located within 100 yards of a church, violated plaintiff's due process rights because it gave no notice that a person's past misdemeanor convictions could be used as a basis for denial, and because under the specific facts of the case, its language was distorted to apply to the run-down remnants of a building, not a functioning church. Gates v. Chadwick, 812 F. Supp. 1233 (M.D. Ga. 1993).
- Ordinance on loitering or prowling that followed the language of O.C.G.A. § 16-11-36, but added "circumstances which cause a justifiable and reasonable alarm or immediate concern that such person is involved in unlawful drug activity" was void for vagueness. Johnson v. Athens-Clarke County, 272 Ga. 384, 529 S.E.2d 613 (2000).
- O.C.G.A. § 16-13-41(h) was not unconstitutionally vague as applied to a defendant, a physician, who was charged with violating O.C.G.A. § 16-13-42(a)(1) by improperly providing 33 signed prescription forms in blank to the defendant's nurse practitioner in violation of § 16-13-41(h) as that provision broadly included possession of a document by any person other than the one whose signature appeared thereon; thus, a physician's staff member could not be excluded. Raber v. State, 285 Ga. 251, 674 S.E.2d 884 (2009).
- Trial court did not err in revoking a convicted sexual offender's probation for failing to register an address change when the offender moved into a motel because O.C.G.A. § 42-1-12 was not unconstitutionally vague in failing to define the term "temporary residence". The offender did not find the term "temporary residence" vague since the offender had reported changes of address at least four times, and under common understanding of the term, "temporary residence" was not unconstitutionally vague; nor does the statute's use of the term "temporary residence" in any way authorize and encourage arbitrary and discriminatory enforcement, but rather, § 42-1-12(a)(16) sets forth in considerable detail the information that must be reported by a sexual offender, and nothing in it encourages arbitrary and discriminatory enforcement. Dunn v. State, 286 Ga. 238, 686 S.E.2d 772 (2009).
- Address registration requirement of O.C.G.A. § 42-1-12 is unconstitutional under the due process clause of the United States and Georgia constitutions on vagueness grounds as applied to homeless sex offenders who possess no street or route address for their residence. Santos v. State, 284 Ga. 514, 668 S.E.2d 676 (2008).
§ 40-6-120 was unconstitutionally vague. - In light of the conflict in the language of O.C.G.A. § 40-6-120(a)(2), a person of common intelligence could not determine with reasonable definiteness that the statute prohibits the making of a left turn into the right lane of a multi-lane roadway. Accordingly, § 40-6-120(a)(2) is too vague to be enforced against a driver of a vehicle making a left turn into a multi-lane roadway that lacks official traffic-control devices directing the driver into which lane to turn and is, therefore, unconstitutional under the due process clauses of the Georgia and United States Constitutions. McNair v. State, 285 Ga. 514, 678 S.E.2d 69 (2009).
- Due process considerations under U.S. Const., amend. 5 govern preaccusation delay cases. United States v. Blevins, 593 F.2d 646 (5th Cir. 1979).
Rights of defendants against excessive preaccusation delay are protected by the due process clause of U.S. Const., amend. 5. United States v. Nixon, 634 F.2d 306 (5th Cir.), cert. denied, 454 U.S. 828, 102 S. Ct. 120, 70 L. Ed. 2d 103 (1981).
When prosecution follows investigative delay, a defendant is not deprived of due process, even if the defendant's defense might have been prejudiced by the lapsed time. United States v. Nixon, 634 F.2d 306 (5th Cir.), cert. denied, 454 U.S. 828, 102 S. Ct. 120, 70 L. Ed. 2d 103 (1981).
- Under the due process clause, dismissal for preaccusation delay is required when it is shown that such delay caused substantial prejudice to defendant's rights to a fair trial and that the delay was an intentional device to gain tactical advantage over the accused. United States v. Nixon, 634 F.2d 306 (5th Cir.), cert. denied, 454 U.S. 828, 102 S. Ct. 120, 70 L. Ed. 2d 103 (1981).
Proof of prejudice from preaccusation delay is a necessary but not sufficient element of a due process claim. United States v. Pitts, 569 F.2d 343 (5th Cir.), cert. denied, 436 U.S. 959, 98 S. Ct. 3076, 57 L. Ed. 2d 1125 (1978).
Due process inquiry must consider the reasons for the delay as well as the prejudice to the accused. United States v. Pitts, 569 F.2d 343 (5th Cir.), cert. denied, 436 U.S. 959, 98 S. Ct. 3076, 57 L. Ed. 2d 1125 (1978); United States v. Blevins, 593 F.2d 646 (5th Cir. 1979).
- Denial of the right under U.S. Const., amend. 5 to due process of law because preaccusation delay irreparably prejudiced one's ability to prepare one's defense is shown when substantial prejudice resulted from the delay and the delay was an intentional device to obtain a tactical advantage over the accused. United States v. Byrum, 540 F.2d 833 (5th Cir. 1976), cert. denied, 429 U.S. 1076, 97 S. Ct. 819, 50 L. Ed. 2d 796 (1977).
- A claim by a defendant that preindictment delay deprives him of due process in violation of U.S. Const., amend. 5 requires a showing of actual prejudice. United States v. Edwards, 577 F.2d 883 (5th Cir.), cert. denied, 439 U.S. 968, 99 S. Ct. 458, 58 L. Ed. 2d 427 (1978).
To establish a due process violation based on preindictment delay, a defendant must show that the reason for the delay "violates our fundamental conceptions of justice". The defendant must show that the defendant suffered substantial prejudice and that the delay was the product of deliberate action by the government to gain a tactical advantage. United States v. Hayes, 40 F.3d 362 (11th Cir. 1994), cert. denied, 516 U.S. 812, 116 S. Ct. 62, 133 L. Ed. 2d 24 (1995).
- Defendant's fifth and fourteenth amendment due process rights were not violated by the 24-year delay between the crimes and the indictment as defendant failed to show actual prejudice; that the defense was weakened by the absence of witnesses who had died or could not be found and by the faded memories of witnesses who testified did not satisfy the actual prejudice prong of the Wooten test. Jackson v. State, 279 Ga. 449, 614 S.E.2d 781 (2005).
Post-arrest delay covered by U.S. Const., amend. 6. - Delay which occurs between commission of an offense and arrest or indictment may violate the right to due process under U.S. Const., amend. 5. If, however, the delay occurs between arrest or indictment and trial, the controlling constitutional provision is guarantee under U.S. Const., amend. 6 of the right to a speedy trial. United States v. Smith, 65 F.R.D. 464 (N.D. Ga. 1974).
Due process considerations under U.S. Const., amend. 5 apply to oppressive prearrest and preindictment delay, but the more specific guarantees of U.S. Const., amend. 6 apply to post-arrest delay. United States v. Traylor, 578 F.2d 108 (5th Cir. 1978), cert. denied, 439 U.S. 1074, 99 S. Ct. 848, 59 L. Ed. 2d 41 (1979).
- Notice of criminal charges with such specificity so as to allow the accused to defend against those charges is an inherent ingredient of due process of law. Calley v. Callaway, 382 F. Supp. 650 (M.D. Ga. 1974), rev'd on other grounds, 519 F.2d 184 (5th Cir. 1975), cert. denied, 425 U.S. 911, 96 S. Ct. 1505, 47 L. Ed. 2d 760 (1976).
Because the defendant was charged by indictment with crimes against a minor victim who was identified by initials only, the court found that such was insufficient because the defendant was entitled to be charged by an indictment in perfect form; failure to identify the victim with a full name, if known, violated the defendant's constitutional rights to due process under Ga. Const. 1983, Art. I, Sec. I, Para. I and U.S. Const., amend. 5, as well as defendant's double jeopardy rights under Ga. Const. 1983, Art. I, Sec. I, Para. XVIII and U.S. Const., amend. 5. Sellers v. State, 263 Ga. App. 144, 587 S.E.2d 276 (2003).
- Although the commitment hearing is a "critical stage" of criminal procedure entitling a defendant to counsel, failure to hold such a hearing does not constitute a deprivation of a defendant's constitutional rights. State v. Godfrey, 204 Ga. App. 58, 418 S.E.2d 383, cert. denied, 204 Ga. App. 922, 418 S.E.2d 383 (1992).
Fact of one-on-one show-up, without more, does not necessarily violate due process. Goswick v. State, 150 Ga. App. 279, 257 S.E.2d 303 (1979); Belcher v. State, 159 Ga. App. 146, 282 S.E.2d 760 (1981).
Although one-on-one showups are inherently suggestive the identification need not be excluded as long as the identification is reliable notwithstanding any suggestive procedure under all the circumstances, including consideration of the opportunity of the witness to view the criminal at the time of the crime, the witness's degree of attention, the accuracy of the witness's prior description of the criminal, the level of certainty demonstrated by the witness at the confrontation, and the length of time between the crime and the confrontation. Thus, the trial court did not err in denying defendant's motion to suppress an out-of-court showup identification by the manager of a store who identified defendant as the shoplifter of several store items given that: (1) the manager had a good opportunity to view defendant in the store parking lot as defendant was leaving with the items; (2) the manager quickly gave a physical identification to another store and defendant was soon observed in an apparent attempt to shoplift at the other store; and (3) the manager from the first store then positively identified defendant for the police at the scene within 30 minutes of the original shoplifting incident, all of which indicated that the identification was reliable. Horne v. State, 260 Ga. App. 640, 580 S.E.2d 644 (2003).
- The due process test to be applied to a show-up, (as distinguished from a line-up) is the likelihood of misidentification. The factors to be considered in evaluating the likelihood of misidentification include the opportunity of the witness to view the criminal at the time of the crime, the witness' degree of attention, the accuracy of the witness' prior description of the criminal, and the level of certainty demonstrated by the witness at the confrontation. Yancey v. State, 232 Ga. 167, 205 S.E.2d 282 (1974).
- A claimed violation of due process in the conduct of a pretrial confrontation depends on the totality of the circumstances. A one-on-one show-up, without more, does not necessarily violate due process. The primary evil to be avoided is the substantial likelihood of irreparable misidentification. Daniel v. State, 150 Ga. App. 798, 258 S.E.2d 604 (1979).
- Although the practice of showing suspects and photos of suspects singly to a witness for purposes of identification has been widely condemned, a claimed violation of due process of law in the conduct of pretrial confrontation depends on the circumstances. Goswick v. State, 150 Ga. App. 279, 257 S.E.2d 303 (1979); Coleman v. State, 150 Ga. App. 380, 258 S.E.2d 12 (1979).
- Appellant is not denied due process by a one-person show-up shortly after the victim selected the appellant's photograph as that of the person who robbed the victim, where the one-person show-up was conducted in a room at the police station within approximately one and one-half hours after the robbery. Coleman v. State, 150 Ga. App. 380, 258 S.E.2d 12 (1979).
- If a pretrial confrontation is accidental and not so arranged by the authorities as to make resulting identification virtually inevitable, there is no denial of due process. Herron v. State, 155 Ga. App. 791, 272 S.E.2d 756 (1980).
Selection system whereby the grand jury foreman is selected from the membership of each grand jury, and the grand jury selects its own foreman, rather than for him or her to be appointed by the superior court judge provides no ground for reversal of a conviction obtained by a properly constituted traverse jury. Wright v. State, 179 Ga. App. 325, 346 S.E.2d 361 (1986).
- Trial court did not err in finding that the defendant, although mentally retarded, gave a knowing and intelligent waiver of the defendant's rights. Worthy v. State, 253 Ga. 661, 324 S.E.2d 431 (1985).
- Preindictment delay did not deny the defendant due process of law where the defendant offered no evidence in support of the defendant's theory of why the charges were dropped before the preliminary hearing, or contrary to the government's theory. United States v. Puett, 735 F.2d 1331 (11th Cir. 1984).
Mere fact that police officer handed photographs to victim for identification did not render the photographic identification procedure impermissibly suggestive. Whitfield v. State, 176 Ga. App. 476, 336 S.E.2d 356 (1985).
A "show-up" identification where the defendant was returned to convenience store the defendant had attempted to rob for identification purposes conducted immediately after the arrest was not unduly suggestive and testimony concerning this identification need not have been excluded upon objection. Manora v. State, 179 Ga. App. 791, 347 S.E.2d 727 (1986).
Photo spreads were not so impermissibly suggestive as to result in a substantial likelihood of misidentification because the defendant was only an arm's length away from the victim when the defendant assaulted the victim; the light was good; the victim's attention was focused on the defendant; and the victim accurately described defendant immediately after the attack. Dudley v. State, 179 Ga. App. 252, 345 S.E.2d 888 (1986).
Fact that defendant's picture was the only one to appear in two photo spreads shown to the victim does not demonstrate that the spreads were impermissibly defective, especially since the two photographs of defendant were different. Dudley v. State, 179 Ga. App. 252, 345 S.E.2d 888 (1986).
- Though the evidence supported the defendant's contentions that the ages, weights, and heights of the persons in the lineup were different and that the dress and complexions could also have helped to isolate the two defendants, the victim based the lineup (and in-court) identification of the two defendants upon their facial characteristics and the traumatic exposure to each of them the victim had experienced a matter of twenty minutes before so that there was no improper suggestion of identity nor other improper procedures followed by the police to taint the results of the pre-indictment lineup. Kennedy v. State, 179 Ga. App. 587, 347 S.E.2d 604 (1986).
- Victim's identification testimony was not tainted simply because the victim saw the defendant dressed in prison garb at the preliminary hearing especially since the observation of the defendant at the preliminary hearing was not a confrontation and the victim had previously identified the defendant positively from photographs. Dudley v. State, 179 Ga. App. 252, 345 S.E.2d 888 (1986).
- Photographic array was not impermissibly suggestive. The people in the lineup had facial features similar to the defendant's, and at least three had slanted eyes; the fact that the defendant's picture was smaller, lighter in color, grainier, and less focused and the fact the defendant's head was more tilted did not make the array impermissibly suggestive; and the defendant failed to explain how the "full-face" lineup conducted here (as opposed to a lineup obscuring all facial features other than the eyes) was impermissibly suggestive. Pinkins v. State, 300 Ga. App. 17, 684 S.E.2d 275 (2009).
Trial court did not err by admitting evidence of the second victim's pre-trial identification of the defendant based on an impermissibly suggestive photographic lineup because the defendant's claim that the second victim was under the influence of prescription pain medications when the second victim identified the defendant in the photographic lineup did not establish that the identification procedure was impermissibly suggestive; the photo array consisted of photographs of the defendant and five other males of similar age and similar physical characteristics and facial features; and the videotape evidence showed that the second victim's identification of the defendant was unequivocal and not influenced by the officers' words or actions. Blackmon v. State, 300 Ga. 35, 793 S.E.2d 69 (2016).
- The factors to be considered in evaluating the likelihood of misidentification, in order to determine whether an alleged criminal's due process guarantee of a fair trial has been violated, include the opportunity of the victim to view the criminal at the time of the crime, the witness' degree of attention, the accuracy of a witness' prior description of the criminal, the level of certainty demonstrated by a witness at a confrontation, and the length of time between the crime and the confrontation. Carter v. State, 157 Ga. App. 445, 278 S.E.2d 93 (1981).
- Where all of the juries relied on by defendant to show a systematic exclusion of blacks from petit juries were composed of at least 25% black jurors with the exception of one jury which had only one black juror, the State used all of its peremptory challenges in only four of the ten cases, and there were no cases involving all-white juries, defendant failed to establish a constitutional denial of due process and the right to a fair trial through the discriminatory use of peremptory challenges. Patterson v. State, 176 Ga. App. 784, 338 S.E.2d 283 (1985).
Denial of defendant's motion for severance did not deny due process. Short v. State, 256 Ga. 165, 345 S.E.2d 340 (1986); Short v. State, 256 Ga. 172, 345 S.E.2d 344 (1986).
Without a high likelihood of prejudice, due process does not mandate severance of a charge requiring proof of a prior conviction from other counts in a criminal indictment. United States v. Jiminez, 983 F.2d 1020 (11th Cir.), cert. denied, 510 U.S. 925, 114 S. Ct. 330, 126 L. Ed. 2d 276 (1993).
- The trial court did not err in ruling that both defense counsel in joint case for theft would have to make their opening statements at the same point in the trial; i.e., either prior to the presentation of the state's case or at its conclusion. Manora v. State, 179 Ga. App. 791, 347 S.E.2d 727 (1986).
- Defendant's right to be present was not violated due to the defendant's absence from 13 bench conferences as 12 conferences involved only legal arguments regarding objections and trial procedure, the defendant's absence from which did not violate the right to be present, and the defendant waived the right at the remaining conference by failing to voice any objection to the defendant's absence, either directly or through counsel. Heywood v. State, 292 Ga. 771, 743 S.E.2d 12 (2013).
Requirement that a court protect an accused person who appears before it is fundamental to due process of law. Calley v. Callaway, 382 F. Supp. 650 (M.D. Ga. 1974), rev'd on other grounds, 519 F.2d 184 (5th Cir. 1975), cert. denied, 425 U.S. 911, 96 S. Ct. 1505, 47 L. Ed. 2d 760 (1976).
- The fourth provision of U.S. Const., amend. 5, "nor [shall any person] be deprived of life, liberty, or property, without due process of law," allows, but does not require, a person to defend one's rights, hence one may waive them. Barkman v. Sanford, 162 F.2d 592 (5th Cir.), cert. denied, 332 U.S. 816, 68 S. Ct. 155, 92 L. Ed. 393 (1947).
- Though selective prosecution, if based on improper motives, can violate constitutional guarantees of equal protection, selective enforcement in and of itself is not a constitutional violation. Therefore, to support a defense of selective prosecution, one must establish that others similarly situated have not generally been prosecuted and that the government's discriminatory selection of a person is invidious, or in bad faith - that is, based on constitutionally impermissible considerations, such as race or religion. United States v. Lichenstein, 610 F.2d 1272 (5th Cir.), cert. denied, 447 U.S. 907, 100 S. Ct. 2991, 64 L. Ed. 2d 856 (1980).
Constitutional right to a jury trial may be waived by proceeding to trial without demanding a jury. Clarke v. Cobb, 195 Ga. 633, 24 S.E.2d 782 (1943).
Defendant need not personally waive the defendant's right to a jury trial in order to preserve due process. Little v. Stynchcombe, 227 Ga. 311, 180 S.E.2d 541 (1971).
- There is no reason why a prisoner in a case of this kind should not have the right to be tried by a conscientious and intelligent judge, if the prisoner prefers it, as well as the right to be tried by a jury. Clarke v. Cobb, 195 Ga. 633, 24 S.E.2d 782 (1943).
- Where federal district court presented the defendant with a choice: either to proceed with counsel with the caveat that the defendant could be kept off the witness stand, if the attorney so desired, or to proceed pro se, the defendant was impermissibly forced to choose between two constitutional rights: the right to testify and the right to counsel. United States v. Scott, 909 F.2d 488 (11th Cir. 1990).
- Due process requires that, if one of the elements of the charged crime requires proof of specific intent, the defendant must be given the opportunity to disprove the government's contention. United States v. Hill, 750 F. Supp. 524 (N.D. Ga. 1990).
- A criminal defendant has a fundamental constitutional right to testify in his or her own behalf at trial. This right is personal to the defendant and cannot be waived either by the trial court or by defense counsel. United States v. Teague, 953 F.2d 1525 (11th Cir.), cert. denied, 506 U.S. 842, 113 S. Ct. 127, 121 L. Ed. 2d 82 (1992).
- The Constitution does not prohibit the official in charge of an accused from deciding that handcuffs are necessary for a safe and orderly transportation to the courtroom. Allen v. Montgomery, 728 F.2d 1409 (11th Cir. 1984).
- Trial court did not deprive the first and second defendants of due process under Ga. Const. 1983, Art. I, Sec. I, Para. I and U.S. Const., amend. 5 in failing to sever, pursuant to O.C.G.A. § 17-8-4, their trials in a case involving the three defendants, who were allegedly involved in a conspiracy; because each defendant was implicated by each defendant's own statement, the defendants failed to show how they were prejudiced by the joint trial, and there was no showing of antagonistic defenses. Brooks v. State, 281 Ga. 14, 635 S.E.2d 723 (2006), cert. denied, 549 U.S. 1215, 127 S. Ct. 1266, 167 L. Ed. 2d 91 (2007).
Due process requires a fair trial before a fair and impartial judge. Cross v. Georgia, 581 F.2d 102 (5th Cir. 1978).
Only when a judge's conduct strays from neutrality is a defendant thereby denied a fair trial as required by the Constitution. United States v. Bartlett, 633 F.2d 1184 (5th Cir.), cert. denied, 454 U.S. 820, 102 S. Ct. 101, 70 L. Ed. 2d 91 (1981).
- Trial court erred in communicating with the jury outside the presence of appellant and appellant's counsel where it denied jury's request to see transcript of an eyewitness' statements to police in writing without notifying or consulting either side. Burtts v. State, 269 Ga. 402, 499 S.E.2d 326 (1998).
Judge is not a mere moderator, and has an obligation and duty to question witnesses and comment on evidence when necessary. The judge may elicit facts not yet adduced or clarify those previously presented and the judge may maintain the pace of the trial by interrupting and curtailing counsel's examinations as a matter of discretion. United States v. Bartlett, 633 F.2d 1184 (5th Cir.), cert. denied, 454 U.S. 820, 102 S. Ct. 101, 70 L. Ed. 2d 91 (1981).
- No rights under the fifth and sixth amendments to the Constitution of the United States were violated where after several outbursts on the defendant's part, the trial court informed the defendant, outside the jury's presence, that the defendant would be removed from the courtroom if the defendant again engaged in such unseemly behavior. Russell v. State, 181 Ga. App. 665, 353 S.E.2d 565 (1987).
- Due process requires that no person be convicted of a crime while incompetent to stand trial. United States v. Swanson, 572 F.2d 523 (5th Cir.), cert. denied, 439 U.S. 849, 99 S. Ct. 152, 58 L. Ed. 2d 152 (1978).
Presently incompetent defendant may never be able to stand trial and may have to be released. United States v. Swanson, 572 F.2d 523 (5th Cir.), cert. denied, 439 U.S. 849, 99 S. Ct. 152, 58 L. Ed. 2d 152 (1978).
- Although the competency determination cuts to the heart of the trial process, the standard for determining the competency of an amnesiac defendant must remain flexible. Because nonpathological amnesia may be difficult to ascertain, the trial judge is in the best position to make a determination between allowing amnesia to become an unjustified haven for a defendant and, on the other hand, requiring an incompetent person to stand trial. United States v. Swanson, 572 F.2d 523 (5th Cir.), cert. denied, 439 U.S. 849, 99 S. Ct. 152, 58 L. Ed. 2d 152 (1978).
Defendant can be barred from raising the issue of insanity as a defense if the defendant does not submit to an examination by a court-designated psychiatrist. Empowering the court to order a psychiatric examination concerning the insanity defense does not violate per se the defendant's rights under U.S. Const., amend. 5. United States v. Leonard, 609 F.2d 1163 (5th Cir. 1980).
Facts related in a psychiatric examination are not admissible on the issue of guilt and the only purpose for which the statements can be admitted is to determine the issue of sanity. United States v. Leonard, 609 F.2d 1163 (5th Cir. 1980).
- The failure of the state to purge its list of over 500 witnesses of the names of those persons who do not testify in a felony murder case does not constitute the denial of the effective assistance of counsel in the preparation of accused's defense nor the deprivation of due process of law, where the state voluntarily reduces the number of witnesses which might be called on direct examination to 40 by placing a check mark beside the names to be called. Emmett v. State, 232 Ga. 110, 205 S.E.2d 231 (1974).
- The doctrine of inherent prejudice, in regard to the accused's right to a fair trial applies when, because of the circumstances, there is such a high probability that prejudice will result that the procedure is deemed inherently lacking in due process, and in such cases, no showing of identifiable prejudice is necessary. Calley v. Callaway, 382 F. Supp. 650 (M.D. Ga. 1974), rev'd on other grounds, 519 F.2d 184 (5th Cir. 1975), cert. denied, 425 U.S. 911, 96 S. Ct. 1505, 47 L. Ed. 2d 760 (1976).
- The individual's right to a fair trial, whether it be in a civilian court or in a military court, requires, in the constitutional sense, that the evidence developed against a defendant comes from the witness stand in a public courtroom where there is full judicial protection of the defendant's right of confrontation, cross-examination, and counsel. Calley v. Callaway, 382 F. Supp. 650 (M.D. Ga. 1974), rev'd on other grounds, 519 F.2d 184 (5th Cir. 1975), cert. denied, 425 U.S. 911, 96 S. Ct. 1505, 47 L. Ed. 2d 760 (1976).
Fact-finder's conclusions should be induced only by evidence and argument in open court, not by any outside influence, whether of private talk or public print. Calley v. Callaway, 382 F. Supp. 650 (M.D. Ga. 1974), rev'd on other grounds, 519 F.2d 184 (5th Cir. 1975), cert. denied, 425 U.S. 911, 96 S. Ct. 1505, 47 L. Ed. 2d 760 (1976).
In capital cases, the jury should pass upon the case free from external causes tending to disturb the exercise of deliberate unbiased judgment. Calley v. Callaway, 382 F. Supp. 650 (M.D. Ga. 1974), rev'd on other grounds, 519 F.2d 184 (5th Cir. 1975), cert. denied, 425 U.S. 911, 96 S. Ct. 1505, 47 L. Ed. 2d 760 (1976).
- Although the right of a free press embodied in U.S. Const., amend. 1, is guaranteed, the individual's right to a fair trial guaranteed by U.S. Const., amend. 5's due process clause and in the other individual provisions of the Bill of Rights is absolute. Where prejudicial news coverage is present, the burden is on the government to protect the rights of the defendant. Calley v. Callaway, 382 F. Supp. 650 (M.D. Ga. 1974), rev'd on other grounds, 519 F.2d 184 (5th Cir. 1975), cert. denied, 425 U.S. 911, 96 S. Ct. 1505, 47 L. Ed. 2d 760 (1976).
- Although the government has no authority to restrain the reporting of the press, nor to dictate what it does or does not report, a person accused of crime has the right to expect the government and its judicial officers to protect the defendant from massive and prejudicial publicity surrounding the case. Calley v. Callaway, 382 F. Supp. 650 (M.D. Ga. 1974), rev'd on other grounds, 519 F.2d 184 (5th Cir. 1975), cert. denied, 425 U.S. 911, 96 S. Ct. 1505, 47 L. Ed. 2d 760 (1976).
Conviction secured, in whole or in part, by use of information secured from nonjudicial sources obviously constitutes a denial of due process of law in its most rudimentary conception. Calley v. Callaway, 382 F. Supp. 650 (M.D. Ga. 1974), rev'd on other grounds, 519 F.2d 184 (5th Cir. 1975), cert. denied, 425 U.S. 911, 96 S. Ct. 1505, 47 L. Ed. 2d 760 (1976).
To deny the accused the right to impugn a witness's testimony is to deny the opportunity for cross-examination, and the denial of the right to cross-examine denies due process. Calley v. Callaway, 382 F. Supp. 650 (M.D. Ga. 1974), rev'd on other grounds, 519 F.2d 184 (5th Cir. 1975), cert. denied, 425 U.S. 911, 96 S. Ct. 1505, 47 L. Ed. 2d 760 (1976).
The state did not violate a defendant's due process rights or suborn perjury by having a shooting victim testify at defendant's aggravated assault trial that defendant had shot the victim, even though the victim had previously testified in another proceeding that another person had shot the victim, because there was no showing that the victim's trial testimony was untrue or that the state knew the testimony was untrue. Arnold v. State, 301 Ga. App. 714, 688 S.E.2d 656 (2009).
Jurors need not be totally ignorant of the facts and issues involved in a case and the mere existence of a preconceived notion as to the guilt or innocence of the accused is not, in itself, sufficient to rebut the presumption of impartiality if the juror can lay aside the juror's impression and render a verdict based only on the evidence presented in court. However, this general rule does not foreclose inquiry whether, in a given case, the application of the rule works as a deprivation of liberty without due process. Calley v. Callaway, 382 F. Supp. 650 (M.D. Ga. 1974), rev'd on other grounds, 519 F.2d 184 (5th Cir. 1975), cert. denied, 425 U.S. 911, 96 S. Ct. 1505, 47 L. Ed. 2d 760 (1976).
- The rule that it is sufficient for juror to state that the juror can lay aside the juror's impressions and render a verdict based only on the evidence does not close inquiry to determine whether in a given case the application of the rule deprives a defendant of due process. Calley v. Callaway, 382 F. Supp. 650 (M.D. Ga. 1974), rev'd on other grounds, 519 F.2d 184 (5th Cir. 1975), cert. denied, 425 U.S. 911, 96 S. Ct. 1505, 47 L. Ed. 2d 760 (1976).
- Due process mandates that the jury be informed of any understanding or agreement reached between the prosecutor and an alleged accomplice, on whose testimony the state's case depends. Williams v. State, 151 Ga. App. 683, 261 S.E.2d 430 (1979).
There was no denial of due process or confrontation rights where the trial court ruled improper a question by defense counsel on cross-examination that presumed the existence of an unprovable "deal" between the state and the witness; the court did not preclude all inquiry on a subject with respect to which the defendant was entitled to reasonable cross-examination. Watkins v. State, 264 Ga. 657, 449 S.E.2d 834 (1994).
- Where the jury is made aware of a nolle prosequi agreement between defendant and the prosecutor by the prosecutor's disclosure of the agreement, the requirements of due process are satisfied. Williams v. State, 151 Ga. App. 683, 261 S.E.2d 430 (1979).
If a case has been submitted to the jury on several alternative theories, one of which is unconstitutional, a general verdict of guilty which does not indicate it was based upon one of the constitutional theories must be set aside. Crawford v. State, 254 Ga. 435, 330 S.E.2d 567 (1985), aff'd, 256 Ga. 57, 344 S.E.2d 215 (1986); 257 Ga. 681, 362 S.E.2d 201 (1987), cert. denied, 489 U.S. 1040, 109 S. Ct. 1098, 103 L. Ed. 2d 239 (1989).
Where jury was charged on both malice murder and felony murder and returned a general "guilty" verdict, the conviction required reversal where the indictment did not allege facts which would put the defendant on notice that he would be required to defend against the felony-murder charge at trial. Crawford v. State, 254 Ga. 435, 330 S.E.2d 567 (1985), aff'd, 256 Ga. 57, 344 S.E.2d 215 (1986); 257 Ga. 681, 362 S.E.2d 201 (1987), cert. denied, 489 U.S. 1040, 109 S. Ct. 1098, 103 L. Ed. 2d 239 (1989).
- Charge telling jury that they were entitled to make certain presumptions or draw certain inferences from the evidence, not that the law required them to do so, did not violate due process. Freeman v. State, 183 Ga. App. 264, 358 S.E.2d 623, cert. denied, 183 Ga. App. 906, 357 S.E.2d 869 (1987).
- A trial court's charge to the jury that any conflict in the testimony of witnesses should, if possible, be settled "without believing that the witnesses made a false statement" is not unconstitutionally burden shifting nor violative of the Fifth Amendment privilege against self-incrimination. Madyun v. State, 188 Ga. App. 253, 372 S.E.2d 655 (1988).
- The trial court did not err in recharging the jury on malice murder and not on manslaughter, since the instruction was limited to the specific point raised by the jury's inquiry and was followed by a general statement disclaiming any instructional emphasis. Williams v. State, 263 Ga. 135, 429 S.E.2d 512 (1993).
- Trial court's order to compel psychiatric examination did not violate the petitioner's privilege against self-incrimination under the fifth and fourteenth amendments because, among other things, the petitioner's counsel both received ample notice of the state's intention to seek a psychiatric examination and had ample opportunity to confer with the petitioner to inform the petitioner of the right against self-incrimination and because prior to trial there had been indications that the petitioner might present a defense of insanity or diminished capacity. Presnell v. Zant, 959 F.2d 1524 (11th Cir. 1992).
- When a criminal defendant makes an ex parte showing that the defendant's sanity is likely to be a significant factor in the defendant's defense, the defendant must be provided with a psychiatrist to assist in the defense. Lindsey v. State, 254 Ga. 444, 330 S.E.2d 563 (1985).
For interpretation of Ake v. Oklahoma, 470 U.S. 68, 105 S. Ct. 1087, 84 L. Ed. 2d 53 (1985) regarding procedure to be followed in providing psychiatric assistance to criminal defendants, see Lindsey v. State, 254 Ga. 444, 330 S.E.2d 563 (1985).
Trial court is under no constitutional or statutory duty to appoint state paid psychiatrist to evaluate a defendant even though special plea of insanity has been filed. Blankenship v. State, 247 Ga. 590, 277 S.E.2d 505 (1981), overruled on other grounds, Thompson v. State, 263 Ga. 23, 426 S.E.2d 895 (1993) and, overruled on other grounds, McClellan v. State, 274 Ga. 819, 561 S.E.2d 82 (2002).
- Because the defendant expressly consented to examinations by the state psychiatrist and psychologist, and because their testimony was used by the state only in rebuttal to the defendant's psychiatric and psychological testimony, defendant's Fifth Amendment rights were not violated by admission of their testimony as to statements made by the defendant during their examinations of the defendant. Speights v. State, 163 Ga. App. 738, 294 S.E.2d 650 (1982).
- A psychiatrist's reference during the psychiatrist's testimony to the defendant's "criminal responsibility" violated Fifth Amendment rights, as the psychiatrist based the diagnosis on the substance of disclosures made during a custodial interrogation, but the admission of the testimony was harmless error because no reasonable doubt existed that the defendant would have otherwise been found guilty and because the testimony was at worse redundant, as the defendant, who was presumed sane under Georgia law, never raised the insanity defense. Cape v. Francis, 741 F.2d 1287 (11th Cir. 1984), cert. denied, 474 U.S. 911, 106 S. Ct. 281, 88 L. Ed. 2d 245 (1985).
- Criminal defendant who requested funds for hiring a psychiatrist was not denied due process where court granted funds but reserved ruling on the question of whether the evaluation would be privileged, prompting the defendant to hire a psychiatrist out of the defendant's own funds to assure privilege, since the defendant abandoned the matter by not presenting authority supporting the privilege and by failing to evoke a ruling of law from the court. Crawford v. State, 254 Ga. 435, 330 S.E.2d 567 (1985), cert. denied, 489 U.S. 1040, 109 S. Ct. 1098, 103 L. Ed. 2d 239 (1989).
- Since the Georgia Supreme Court has left intact the general rule of inadmissibility of polygraph evidence but has merely recognized a party's right, within that rule, to waive objection to otherwise inadmissible evidence, no substantive right to introduce polygraph evidence has been created in Georgia; and no written statement of reasons for a prosecutor's refusal to stipulate to the admission of polygraph evidence is constitutionally required as a matter of due process as a safeguard against arbitrariness. Jones v. Weldon, 690 F.2d 835 (11th Cir. 1982).
Absence of the defendant at the jury view of a crime scene, when made for the purpose of better understanding the evidence and not introducing new evidence, is not a denial of due process. Forney v. State, 255 Ga. 316, 338 S.E.2d 252 (1986).
- Defendant's exclusion from an evidentiary hearing on the defendant's motion for new trial did not violate the defendant's rights to confrontation or due process. United States v. Boyd, 131 F.3d 951 (11th Cir. 1997).
- Because, during the trial, one of the jurors gave the trial judge a note in which the juror informed the judge that the juror worked with the victim's sibling about eight years before trial; that the juror spoke with the victim's sibling before the trial began and exchanged pleasantries; that the juror inquired what the sibling was doing at the courthouse and the sibling replied "that boy shot my sister;" that no one else was aware of the exchange; that the exchange would not influence the juror's decision; and that the juror would base the juror's decision in the case on the evidence, and because the juror was admonished not to tell the other jurors what transpired, the defendant was not prejudiced by the communication. Dudley v. State, 179 Ga. App. 252, 345 S.E.2d 888 (1986).
- Instructions charging that the acts of a person of sound mind and discretion are presumed to be a product of a person's will, but such presumption may be rebutted and that a person of sound mind and discretion is presumed to intend the natural and probable consequences of the person's acts, but the presumption may be rebutted create an unconstitutional burden-shifting presumption with respect to the element of intent. Boswell v. State, 176 Ga. App. 855, 338 S.E.2d 62 (1985).
A charge, in a homicide and burglary prosecution, that there is a rebuttable presumption that a person of sound mind and discretion intends the natural and probable consequences of the person's acts, was unconstitutionally burden-shifting, notwithstanding an additional charge that criminal intent is not presumed. This error did not require a reversal of the defendant's convictions, because the defense raised the question of whether the defendant participated in the acts causing the victim's death but did not create any material issue on the question of whether the defendant intended the consequences of the defendant's acts. Williams v. Kemp, 255 Ga. 380, 338 S.E.2d 669, cert. denied, 478 U.S. 1022, 106 S. Ct. 3341, 92 L. Ed. 2d 744 (1986).
- A trial court's jury instruction in a murder prosecution that malice shall be implied where no considerable provocation appears and where all the circumstances of the killing show an abandoned and malignant heart, in view of the strong circumstantial evidence that preceded it, could not have been interpreted by the jury as changing the reasonable-doubt burden of proof they were initially told that the prosecution had to meet. Lamb v. Jernigan, 683 F.2d 1332 (11th Cir. 1982), cert. denied, 460 U.S. 1024, 103 S. Ct. 1276, 75 L. Ed. 2d 496 (1983).
- The state's failure to videotape a defendant's statement so that the jury can evaluate the defendant's condition while making the statement is not a denial of due process, even though the police videotaped the murder scene where the statement was made. Patterson v. State, 258 Ga. 592, 372 S.E.2d 809 (1988).
- Defendant's Fifth Amendment due process rights and sixth amendment right to a speedy trial were not violated through the bringing of an indictment against him in 1992 for criminal conduct that occurred in 1987. United States v. Lockett, 867 F. Supp. 1044 (M.D. Ga. 1994), aff'd, 70 F.3d 126 (11th Cir. 1995).
Trial court properly denied a defendant's motion to dismiss the indictments due to a speedy trial violation with regard to burglary and murder charges as the defendant's contentions regarding fading memories, alone, did not demonstrate prejudice to the defendant's defense and the record supported a finding that any delay was attributable to the ongoing investigation of the crime which, at times, was complicated by such things as recanted testimony by certain witnesses. Ultimately, the defendant failed to show that the delay was the result of a deliberate action by the state to gain a tactical advantage. Bunn v. State, 284 Ga. 410, 667 S.E.2d 605 (2008).
- The fifth, sixth, and fourteenth amendments did not bar a federal prosecution because any arguably improper or unconstitutional delay in the prosecution was occasioned solely by Georgia authorities; there was no basis here for imputing Georgia's dilatory conduct to the United States or to the federal prosecution. United States v. Boone, 959 F.2d 1550 (11th Cir. 1992).
- Defendant's due process rights were not violated by the ten-year delay between trial and appeal because the errors the defendant allegedly would have raised on appeal were without merit. Whitaker v. State, 291 Ga. 139, 728 S.E.2d 209 (2012).
Fourteen-year delay between arrest and trial for murder did not violate defendant's due process rights since defendant was not prejudiced by the passage of time, nor was there any evidence to indicate that the delay was designed by the prosecution. Wooten v. State, 262 Ga. 876, 426 S.E.2d 852, cert. denied, 510 U.S. 853, 114 S. Ct. 156, 126 L. Ed. 2d 117 (1993).
State did not violate defendant's speedy trial rights, and, thus, defendant's double jeopardy rights were not implicated where defendant was arrested on a charge of DUI - less safe driver and defendant was not tried for 14 years because defendant failed to appear for the trial scheduled a few weeks after defendant's arrest for that offense; any delay in bringing defendant to trial was defendant's own fault because defendant had notice of when that trial was to take place and did not show up. Smith v. State, 260 Ga. App. 403, 579 S.E.2d 829 (2003).
- Defendant failed to establish a due process violation for a 20-year delay in the prosecution of a murder case against the defendant because the defendant failed to show either that the delay actually prejudiced the defense or that the prosecution deliberately delayed the case to gain a tactical advantage, both of which showings were needed to prevail on that claim; while several witnesses died in the intervening years and some evidence was missing, this hindered the prosecution as much as the defendant. Holton v. State, 280 Ga. 843, 632 S.E.2d 90 (2006).
- Where defendant had actual knowledge of the pendency of the case, the publication of the trial calendar in the county's legal organ constituted sufficient notice of the trial date, so as to satisfy due process. Carson v. Morris, 164 Ga. App. 732, 297 S.E.2d 513 (1982).
- A conviction based upon an in-court identification following a pretrial identification will be set aside on that ground only if the pretrial identification procedure was so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification. Herron v. State, 155 Ga. App. 791, 272 S.E.2d 756 (1980).
- A conviction based on a witness' in-court identification of the defendant, when the witness has been previously exposed to a suggestive photographic array, will be set aside on that ground only if the photographic identification procedure was so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification. The central question is whether, under the totality of the circumstances, the identification is reliable even though a pretrial identification procedure was suggestive. Stroud v. State, 246 Ga. 717, 273 S.E.2d 155 (1980).
- As a general rule, the one-on-one confrontation between the eyewitness and the suspect before a trial has been condemned. However, the appellate courts have consistently upheld the admission of in-court identifications when prior one-on-one show-ups are reasonably and fairly conducted at or near the time of the offense. Arnold v. State, 155 Ga. App. 782, 272 S.E.2d 751 (1980); Perkins v. State, 216 Ga. App. 118, 453 S.E.2d 135 (1995).
Criminal defendant is deprived of due process if a conviction is founded, in whole or in part, upon an involuntary confession, without regard for the truth or falsity of the confession, and even though there is ample evidence aside from the confession to support the conviction. Equally clear is the defendant's constitutional right at some stage in the proceeding to object to the use of the confession and to have a fair hearing and a reliable determination on the issue of voluntariness, a determination uninfluenced by the truth or falsity of the confession. James v. State, 223 Ga. 677, 157 S.E.2d 471 (1967).
- Coercive police activity is a necessary predicate to the finding that a confession is not "voluntary" within the meaning of the due process clause. United States v. Moody, 977 F.2d 1425 (11th Cir. 1992), cert. denied, 507 U.S. 1052, 113 S. Ct. 1948, 123 L. Ed. 2d 653 (1993).
- Because, in a rape case, the accused made a statement that admitted the intercourse but fell short of admitting that the intercourse was accomplished by means of force and against the will of the victim or prosecutrix, such statement was insufficient to amount to a confession of rape, since force is an essential element of the crime of rape. However, if the statement in question clearly makes out a case of conspiracy between the defendant on trial and other individuals charged with the commission of the same crime at the same time and place, and if, from all reasonable inferences and deductions that may be drawn from the statement, it is apparent that all the participants in the crime were exercising and using force or threats of force upon the victim, the defendant, being a participant in the conspiracy, is equally chargeable under the facts related in the statement with the force exerted upon the victim by means of threats of violence and bodily harm visited upon the victim by the defendant's coconspirators even though the defendant may not have admitted in the defendant's statement to have personally exerted any such force and violence upon the victim. Jackson v. State, 225 Ga. 553, 170 S.E.2d 281 (1969).
- In a rape trial, the fact that an exclusionary sperm test is not performed (which test purportedly classifies sperm into particular blood groupings for identification purposes) is not grounds for reversal, neither does due process require the performance of the test. Gray v. State, 151 Ga. App. 684, 261 S.E.2d 402 (1979).
- Defendant's compulsory process rights under U.S. Const., amend. 6 and equal protection and due process rights under U.S. Const., amend. 5 are not violated by denial of use immunity to defense witnesses if such immunity is not requested by the defendant in the trial court and no prejudice would have resulted had a request been made and denied; nor are such rights violated if the defendant fails to demonstrate that a grant of immunity is required to preserve fundamental fairness in the trial. United States v. Cohen, 631 F.2d 1223 (5th Cir. 1980).
Statement of a witness that an arrest was made under a warrant is not proof that it was legal. Marshall v. State, 130 Ga. App. 572, 203 S.E.2d 885 (1974).
- The conclusion of a witness that a given paper is a warrant under which an arrest may legally be made is not proper proof that such a paper is in fact a warrant by virtue of which a legal arrest has been made, so as to authorize the admission of evidence obtained by means of an arrest under such paper or alleged warrant. Marshall v. State, 130 Ga. App. 572, 203 S.E.2d 885 (1974).
Defendants who are not convicted on charges under which they were placed in custody does not negate probable cause for that arrest. United States v. Gidley, 527 F.2d 1345 (5th Cir.), cert. denied, 429 U.S. 841, 97 S. Ct. 116, 50 L. Ed. 2d 110 (1976).
Accused is entitled to assistance of counsel at all stages of the trial, including sentencing, and if counsel for accused is not present when the accused is sentenced to be executed, the constitutional right to the assistance of counsel at all stages of the proceedings is violated. Coates v. Lawrence, 46 F. Supp. 414 (S.D. Ga. 1942), aff'd, 131 F.2d 110 (5th Cir. 1942), cert. denied, 318 U.S. 759, 63 S. Ct. 532, 87 L. Ed. 1132 (1943).
Mere participation of special prosecutor is not sufficient grounds to show denial of due process, without some additional showing of a violation of the rules relating to prosecuting attorneys. There is no constitutional prohibition against the use of special prosecutors, and so long as the criminal district attorney retains control and management of the prosecution, the special prosecutor is not guilty of conduct prejudicial to the defendant, and the rights of the defendant are duly observed, no reason exists why such settled practice, in and of itself, should cause the reversal of a case. Woods v. Linahan, 648 F.2d 973 (5th Cir. 1981).
- The knowing use by the prosecution of false evidence or perjured testimony which is material to the issues in a criminal trial is a denial of due process. A conviction obtained by the use of such evidence cannot be permitted to stand. The same rule applies if the prosecution, although not actively soliciting false evidence, passively, but knowingly, allows it to go uncorrected or allows it to be presented with a materially false impression. The same result may obtain even though the false nature of the evidence concerns only the credibility of an important witness, rather than the ultimate issue of guilt or innocence. United States v. Brown, 634 F.2d 819 (5th Cir. 1981).
Conviction of a crime following a trial in which perjured testimony on a material point is knowingly used by the prosecution is an infringement on the accused's fifth and fourteenth amendment rights to due process of law. Kitchens v. State, 160 Ga. App. 492, 287 S.E.2d 316 (1981).
It is sufficient to show that police officers acting in behalf of the state in connection with the prosecution had knowledge of the perjured character of the testimony given by a witness for the state. Kitchens v. State, 160 Ga. App. 492, 287 S.E.2d 316 (1981).
- Defendant was not denied due process when the trial court admitted hearsay testimony of a detective regarding statements made by a coconspirator after coconspirator denied remembering the crime or giving the police any information; the testimony was admissible as substance evidence under the prior inconsistent statement exception to the hearsay rule. Robinson v. State, 278 Ga. 31, 597 S.E.2d 386 (2004).
- Conviction did not need to be reversed for use of perjured testimony as inconsistencies and discrepancies were disclosed at trial and available as a basis for attacking the credibility of the state's witnesses. Cammon v. State, 269 Ga. 470, 500 S.E.2d 329 (1998).
- Due process is not implicated by the prosecution's introduction or allowance of false or perjured testimony, unless the prosecution actually knows or believes the testimony to be false or perjured. It is not enough that the testimony is challenged by another witness or is inconsistent with prior statements. United States v. Brown, 634 F.2d 819 (5th Cir. 1981).
Where the prosecutor knows that false or perjured testimony will be elicited on cross-examination of a government witness, and also knows that the assertion of a privilege during the defendant's case will prevent the defense from challenging the testimony, the prosecutor's failure to notify the defendant of the anticipated claim of privilege in advance of the defendant's attempt to elicit the false or perjured responses may constitute passive but knowing action which allows false or perjured testimony to be presented with a materially false impression. If so, the government will be treated as if it introduced the false or perjured testimony itself, and the defendant's right to due process of law will likely be implicated. United States v. Brown, 634 F.2d 819 (5th Cir. 1981).
- Where permitting reindictment of a defendant would chill the defendant's exercise of procedural rights to a greater extent than forbidding reindictment would infringe upon the prosecutor's exercise of independent discretion, the reasonable apprehension of vindictiveness, without a showing of actual retaliatory motive, is sufficient to establish a due process violation. United States v. Spence, 719 F.2d 358 (11th Cir. 1983).
The government's decision to indict a defendant on additional charges, following the reversal of a lesser charge on appeal, was free of vindictiveness, under the following circumstances: (1) the initial indictment was based on the defendant's agreement to plead guilty to a single count carrying a possible 15-year sentence; (2) that indictment was not superseded by a larger indictment, following the defendant's refusal to plead guilty, due to an agreement to allow the defendant to litigate the validity of the search leading to the indictment and to preserve that issue for appeal; and (3) the government's motive in reindicting the defendant was not to punish the defendant for the defendant's successful appeal, but to make sure the defendant received a sentence commensurate with the defendant's criminal activity. United States v. Taylor, 749 F.2d 1511 (11th Cir. 1985).
- When the defendant was convicted of aggravated assault, burglary, theft by taking, and carrying a concealed weapon, the trial court properly imposed a 111-year sentence of imprisonment, which was within the statutory limits and which was the maximum possible. The presumption of vindictiveness was absent when a trial court imposed a greater penalty after trial than the court would have after a guilty plea; furthermore, the trial court explained that the court imposed the sentence because the defendant's actions were life-threatening, because the jury convicted the defendant of entering the dwelling with intent to commit murder, because the defendant's actions against one victim, the defendant's parent, had escalated from the defendant's previous misdemeanor crimes against the parent, and because the defendant displayed no remorse. Townes v. State, 298 Ga. App. 185, 679 S.E.2d 772 (2009).
Fingerprint evidence alone, under proper circumstances, can be sufficient to sustain a conviction for an offense like burglary against a constitutional attack on the sufficiency of evidence. Duncan v. Stynchcombe, 704 F.2d 1213 (11th Cir. 1983).
- Although appellate court considered evidence outside the record in affirming murder conviction, there was no prejudice to defendant, as on appeal from habeas proceeding, court could disregard such evidence and re-review record to determine if jury was authorized to find that state had met its burden, and defendant could re-argue sufficiency of the evidence. Zant v. Nelson, 250 Ga. 152, 296 S.E.2d 590 (1982), cert. denied, 460 U.S. 1056, 103 S. Ct. 1507, 75 L. Ed. 2d 936 (1983).
Evidence of another criminal act is admissible to show motive, intent, plan, identity, bent of mind and course of conduct, where the state shows that the accused was the perpetrator of the other criminal act and that there is a sufficient similarity between the other criminal act and the crime charged. Dudley v. State, 179 Ga. App. 252, 345 S.E.2d 888 (1986).
- The trial court did not err in allowing in evidence the testimony of the defendant's former spouse as to the defendant's alleged assaults upon the spouse, even though the spouse never reported these crimes to the police, because the evidence of these independent crimes was sufficiently similar to the crimes charged as well as relevant to the issues at trial to warrant its admission. Lewis v. State, 179 Ga. App. 121, 346 S.E.2d 70 (1986).
- The trial court committed harmless error in admitting the testimony of a witness who swore that appellant had kidnapped, raped, and sodomized the witness some ten days prior to the crimes in the case at bar, though defendant had been tried and acquitted of these earlier crimes because there was properly admitted evidence of independent offenses in addition to evidence of the erroneously admitted acquittal. Lewis v. State, 179 Ga. App. 121, 346 S.E.2d 70 (1986).
Testimony by the victim that the victim waited until the victim heard that the defendant was in jail before reporting the crimes to the police, testimony was properly admitted as explaining the victim's conduct in waiting several days before reporting the crimes, notwithstanding any potential prejudice to the defendant. Lewis v. State, 179 Ga. App. 121, 346 S.E.2d 70 (1986).
Erroneous admission of a statement obtained in violation of the Miranda rule was harmless error, where there were no coercive police tactics inherently offensive to due process and no reasonable chance that the error contributed to the verdict. Metheny v. State, 197 Ga. App. 882, 400 S.E.2d 25 (1990).
- Although not every denial of a motion for continuance to obtain witnesses will violate an accused's right to compulsory process, and not every exclusion of hearsay testimony will violate an accused's right to due process, when there is a confession and the circumstances present a compelling case of the reliability and important relevance of the excluded testimony, the trial of such a case without the confession being made known to the jury fails to provide due process of the law. Wilkerson v. Turner, 693 F.2d 121 (11th Cir. 1982).
- Trial court properly denied the defendant's amended motion for a new trial, holding that the administration of breath tests pursuant to Ga. Comp. R. & Regs. 92-3-.06(12)(b) did not violate the due process clause under both U.S. Const., amend. 5 or Ga. Const. 1983, Art. I, Sec. I, Para. I, given that: (1) said claim was raised for the first time at the same time as the new trial motion, and was thus untimely; (2) the defendant had an alternative remedy under the Georgia Administrative Procedure Act, O.C.G.A. § 50-13-1; (3) the defendant failed to show that the Division of Forensic Sciences (DFS) eliminated meaningful procedures for conducting breath tests when it promulgated the rule; and (4) the techniques and methods approved by DFS were sufficient to ensure fair and accurate testing. Palmaka v. State, 280 Ga. App. 761, 634 S.E.2d 883 (2006).
- Once a prosecutor exercises the discretion to bring certain charges against a defendant, neither the prosecutor nor a successor may, without explanation, increase the number of or severity of those charges in circumstances that suggest that the increase is retaliation for the defendant's assertion of a statutory or constitutional rights. Hardwick v. Doolittle, 558 F.2d 292 (5th Cir. 1977), cert. denied, 434 U.S. 1049, 98 S. Ct. 897, 54 L. Ed. 2d 801 (1978).
Reindictment of a defendant violates due process whenever a prosecutor adds new charges merely to retaliate against the defendant for exercising statutory or constitutional rights. United States v. Spence, 719 F.2d 358 (11th Cir. 1983).
- On remand, it was error for the trial court to increase the amount of time the defendant was to serve and to threaten to increase the time once again if the defendant took another appeal. Due process required that vindictiveness play no part in the sentence a defendant received. Schlanger v. State, 297 Ga. App. 785, 678 S.E.2d 190 (2009), cert. denied, No. S09C1542, 2010 Ga. LEXIS 127 (Ga. 2010).
- Statute outlining a sentencing structure that punished individuals convicted of possessing marijuana plants in proportion to the number of plants seized, regardless of the actual weight of marijuana obtainable from those plants, was constitutional. United States v. Osburn, 955 F.2d 1500 (11th Cir.), cert. denied, 506 U.S. 878, 113 S. Ct. 223, 121 L. Ed. 2d 160, 506 U.S. 901, 113 S. Ct. 290, 121 L. Ed. 2d 215 (1992).
- When a jury imposes a higher sentence on reconviction this is not a violation of due process so long as the jury is not informed of the prior sentence. Shields v. State, 147 Ga. App. 96, 248 S.E.2d 171 (1978).
Sanctions in a disbarment proceeding are not criminal in nature. Cushway v. State Bar, 120 Ga. App. 371, 170 S.E.2d 732 (1969), cert. denied, 398 U.S. 910, 90 S. Ct. 1705, 26 L. Ed. 2d 71 (1970).
- The requirement of proof beyond a reasonable doubt by former Rule 4-215(f) (Rule 4-221(e)) of the State Bar of Georgia does not convert the disciplinary proceeding into a criminal one. The exclusion of reasonable doubt means no more than that the jury or trier of fact must be clearly satisfied. Cushway v. State Bar, 120 Ga. App. 371, 170 S.E.2d 732 (1969), cert. denied, 398 U.S. 910, 90 S. Ct. 1705, 26 L. Ed. 2d 71 (1970).
Proof of venue is an essential element in proving guilt in a criminal case. Jones v. State, 135 Ga. App. 893, 219 S.E.2d 585 (1975).
- Venue in a conspiracy prosecution is properly laid either in the jurisdiction where the conspiracy was formed or in any jurisdiction wherein a conspirator committed an overt act in furtherance of the conspiracy. Jones v. State, 135 Ga. App. 893, 219 S.E.2d 585 (1975).
Where overt acts are alleged to have been committed in more than one jurisdiction, it is essential in a conspiracy prosecution that the jury be properly instructed as to venue. Jones v. State, 135 Ga. App. 893, 219 S.E.2d 585 (1975).
- If a defendant testifies during the sentencing phase of the trial, and when cross-examined about the defendant's participation in the crimes charged, the defendant elects to stand on the defendant's right against self-incrimination, the defendant, having already been convicted of crimes, has no presumption of innocence. The defendant stands before the sentencing jury as a convicted criminal. Brown v. State, 247 Ga. 298, 275 S.E.2d 52, cert. denied, 454 U.S. 882, 102 S. Ct. 366, 70 L. Ed. 2d 192 (1981).
- The career offender scheme of using a defendant's criminal record in considering both the defendant's offense level and the defendant's criminal history under the federal sentencing guidelines does not violate due process or equal protection. United States v. Johns, 984 F.2d 1162 (11th Cir. 1993).
- A defendant's due process rights are violated only when a judge-decided fact actually increases a defendant's sentence beyond the prescribed statutory maximum penalty for the convicted crime and has no application to, or effect on, cases where a defendant's sentence falls at or below that maximum penalty; thus, there can be no due process violation in connection with either mandatory minimum sentences or Sentencing Guidelines calculations, when in either case the ultimate sentence imposed does not exceed the prescribed statutory maximum penalty. United States v. Sanchez, 269 F.3d 1250 (11th Cir. 2001), cert. denied, 535 U.S. 942, 122 S. Ct. 1327, 152 L. Ed. 2d 234 (2002).
§ 26-1808.1 (see O.C.G.A. § 16-8-15). - Whether presumption of former Code 1933, § 26-1808.1 (see O.C.G.A. § 16-8-15), dealing with conversion of certain payments, that failure to pay for material or labor is prima facie evidence of intent to defraud is constitutionally invalid, depends upon whether the jury in a particular case, after instructions, interprets presumption as burden-shifting or conclusive rather than permissive only. State v. Hudson, 247 Ga. 36, 273 S.E.2d 616 (1981).
- In a prosecution for conspiracy to possess with intent to distribute cocaine, the defendant was not entitled to have the jury instructed as to the defense of entrapment where the defendant failed to meet the burden of producing evidence to establish government misconduct. United States v. Lockett, 867 F. Supp. 1044 (M.D. Ga. 1994), aff'd, 70 F.3d 126 (11th Cir. 1995).
- The remote possibility that an alibi charge stating that the defendant must establish the defendant's alibi to the reasonable satisfaction of the jury may have affected the integrity of the fact-finding process in the trials in which it was given is outweighed by considerations of reliance upon prior law and of the potential impact upon the administration of justice. Accordingly, the rule will be applied only to trials conducted after December 16, 1968, the date on which Johnson v. Bennett, 393 U.S. 253, 89 S. Ct. 436, 21 L. Ed. 2d 415 (1968) and Bennett v. Stump, 393 U.S. 1001, 89 S. Ct. 483, 21 L. Ed. 2d 466 (1968) were decided. Bassett v. Smith, 464 F.2d 347 (5th Cir. 1972), cert. denied, 410 U.S. 991, 93 S. Ct. 1509, 36 L. Ed. 2d 190 (1973).
A charge to the jury requiring that a defendant presenting alibi evidence must establish the defendant's alibi to the reasonable satisfaction of the jury, violates due process because such a highly ambiguous and contradictory charge might lead the jury to an erroneous belief that it is free to apply a lesser standard of proof to an essential element of the crime, that is, the defendant's presence. Bassett v. Smith, 464 F.2d 347 (5th Cir. 1972), cert. denied, 410 U.S. 991, 93 S. Ct. 1509, 36 L. Ed. 2d 190 (1973).
- The portion of former Code 1933, § 27-2534.1 (see O.C.G.A. § 17-10-30) that requires the trial court to give in writing to the jury the statutory instructions as to mitigating or aggravating circumstances does not violate due process and equal protection under U.S. Const., amend. 5 or U.S. Const., amend. 14, and without a concurrent right to send written instructions to the jury as to mitigating circumstances, the aggravating circumstances are not prejudicially emphasized, because the written material furnished to the jury is purely of a procedural nature and amounts to nothing more than a written formulation of the jury's potential verdicts. Collier v. State, 244 Ga. 553, 261 S.E.2d 364 (1979), cert. denied, 445 U.S. 946, 100 S. Ct. 1346, 63 L. Ed. 2d 781 (1980), overruled on other grounds, Satterfield v. State, 248 Ga. 538, 285 S.E.2d 3 (1981); Thompson v. State, 263 Ga. 23, 426 S.E.2d 895 (1993), overruled on other grounds, McClellan v. State, 274 Ga. 819, 561 S.E.2d 82 (2002).
- Where the court's charge includes instruction as to insanity but places the burden of proof as to each essential element of the crime, including intent, upon the state beyond a reasonable doubt, it is not a denial to the defendant of due process of law for the court not to instruct the jury specifically, absent a request, as to any burden of proof regarding sanity. Harris v. State, 237 Ga. 718, 230 S.E.2d 1 (1976), cert. denied, 431 U.S. 933, 97 S. Ct. 2642, 53 L. Ed. 2d 251 (1977), sentence vacated, 243 Ga. 244, 253 S.E.2d 707 (1979).
- Because the trial judge, after the witness relied upon U.S. Const., amend. 5 when counsel for the defendant began to cross-examine the witness, instructed the jury that the witness' evidence was not admissible and that "you should not let what this witness has said up to this point have any bearing on the verdict you make in this case," there was no error harmful to the defendant. Especially is this true since counsel made no motion for mistrial or request for additional instructions to the jury. Smith v. State, 120 Ga. App. 613, 171 S.E.2d 755 (1969).
Superior court did not err in failing to dismiss the indictment on the ground that the delay in the defendant's arrest and indictment violated the defendant's rights to due process under the Fifth and Fourteenth Amendments and Ga. Const. 1983, Art. I, Sec. I, Para. I because neither actual prejudice nor deliberate adverse action on the part of the state had been shown; the defendant was not in custody during the period in question. Higgenbottom v. State, 290 Ga. 198, 719 S.E.2d 482 (2011).
- If a state chooses, quite apart from constitutional compulsion, to use a grand or petit jury, due process imposes limitations on the composition of that jury. Peters v. Kiff, 407 U.S. 493, 92 S. Ct. 2163, 33 L. Ed. 2d 83 (1972).
- There is an affirmative duty imposed by the Constitution upon the jury selection officials, the jury commissioner, and clerk of court, to know the availability of potentially qualified persons within significant elements of the community, including those which have been the object of state discrimination, to develop and use a system that will result in a fair cross section of qualified persons in the community being placed on the jury rolls, and to follow a procedure which will not operate to discriminate in the selection of jurors on racial grounds. Mobley v. United States, 379 F.2d 768 (5th Cir. 1967).
- The due process clause of U.S. Const., amend. 5 protects a defendant from jurors who are actually incapable of rendering an impartial verdict, based on the evidence and the law. Peters v. Kiff, 407 U.S. 493, 92 S. Ct. 2163, 33 L. Ed. 2d 83 (1972).
- It is part of the established tradition in the use of juries as instruments of public justice that the jury be a body truly representative of the community. Mobley v. United States, 379 F.2d 768 (5th Cir. 1967).
- In compiling jury lists, both the need for competency and for a fair cross section of the community are important elements but the desire for competency must not be pursued to the extent that it prevents a fair cross section and any attempt to gain competent jurors that would result in a less representative cross section than one drawn from the statutorily qualified pool would destroy the right to serve on juries. Mobley v. United States, 379 F.2d 768 (5th Cir. 1967).
- The Constitution does not require an exact proportion between the percentage of blacks in the population and those on jury lists. Mobley v. United States, 379 F.2d 768 (5th Cir. 1967).
Constitution does not require that any particular panel of jurors in a criminal trial include members of the defendant's race. Mobley v. United States, 379 F.2d 768 (5th Cir. 1967).
- Very decided variations in proportions of blacks and whites on jury lists from racial proportions in the population, which variations are not explained and are long continued, furnish sufficient evidence of systematic exclusion from jury service. Mobley v. United States, 379 F.2d 768 (5th Cir. 1967).
- The exclusion of blacks from jury service injures not only defendants, but also other members of the excluded class. It denies the class of potential jurors the privilege of participating equally in the administration of justice, and it stigmatizes the whole class, even those who do not wish to participate. Peters v. Kiff, 407 U.S. 493, 92 S. Ct. 2163, 33 L. Ed. 2d 83 (1972).
- A conviction of a black person cannot stand if the petit jury is drawn from a jury venire that systematically and arbitrarily excludes blacks, for such constitutes a denial of due process and equal protection of the laws. Mobley v. United States, 379 F.2d 768 (5th Cir. 1967).
- If blacks are systematically excluded from a white defendant's grand and petit juries, then the defendant is indicted and convicted by tribunals that fail to satisfy the elementary requirements of due process, and neither the indictment nor the conviction can stand. Ferguson v. Dutton, 477 F.2d 121 (5th Cir. 1973).
- The exclusion of a discernible class from jury service injures not only those defendants who belong to the excluded class, but other defendants as well, in that it destroys the possibility that the jury will reflect a representative cross section of the community. Peters v. Kiff, 407 U.S. 493, 92 S. Ct. 2163, 33 L. Ed. 2d 83 (1972).
- A state may exclude certain occupational categories from jury service on the bona fide ground that it is for the good of the community that their regular work should not be interrupted. Peters v. Kiff, 407 U.S. 493, 92 S. Ct. 2163, 33 L. Ed. 2d 83 (1972).
- A jury list which excludes all people 18 to 21 years of age does not deny the defendant the right to a public trial and due process of law, despite the lowering of the minimum age for federal jurors to 18 by 28 U.S.C. § 1865. United States v. Dukes, 479 F.2d 324 (5th Cir. 1973).
- Whatever the criminal defendant's race, the defendant has standing to challenge the system used to select the grand or petit jury, on the ground that it arbitrarily excludes from service the members of any race, and thereby denies the defendant due process of law. Peters v. Kiff, 407 U.S. 493, 92 S. Ct. 2163, 33 L. Ed. 2d 83 (1972).
- The burden of proof is on the person attacking a jury selection procedure to show the existence of purposeful discrimination. Purposeful discrimination may not be assumed or merely asserted, it must be proven. Mobley v. United States, 379 F.2d 768 (5th Cir. 1967).
Replacing one juror with an alternate juror after out-of-court contact between the juror and defense counsel did not violate a murder defendant's constitutional rights to due process and trial by an impartial jury, where the trial court had a sound basis for exercising its discretion to discharge the juror. Miller v. State, 261 Ga. 679, 410 S.E.2d 101 (1991).
- Trial court did not err when it did not uphold defendant's challenge to the state's exercise of its peremptory strikes to remove two African-American individuals from the venire; not only was defendant's challenge untimely because it was made after the jury was selected and sworn, but, also, defendant did not carry defendant's burden of showing the state's exercise of its peremptory strikes was motivated by discriminatory intent. Oliver v. State, 276 Ga. 665, 581 S.E.2d 538 (2003).
In a Batson challenge, the trial court found that defendant made a prima facie showing of racial discrimination and proceeded to an evaluation of the state's explanations for its strikes against two African-American members of the jury venire, but the state's explanations that: (1) it struck the first prospective juror because that juror's answers did not relate to the questions asked of the juror and were not well articulated, leading the prosecutor to suspect that the juror possessed limited intelligence; and (2) it struck the second juror because the second juror's perceptions of an incident at a water fountain with another juror and the second juror's decision to report it indicated undue attention to issues of race, and that it would have struck any potential juror who reported such an incident, regardless of that juror's race were race neutral and did not show any discriminatory intent. Roberts v. State, 278 Ga. 541, 604 S.E.2d 500 (2004).
Trial court was not clearly erroneous in finding that the state gave race-neutral reasons for its peremptory strikes of African-American jurors and that those reasons were not a pretext for purposeful discrimination; thus, defendant's Batson claim failed. Wicks v. State, 278 Ga. 550, 604 S.E.2d 768 (2004).
- Trial court did not err in denying a defendant's motion for a mistrial based upon the allegation that one or more jurors had begun deliberating before the close of the evidence. While the record showed that at least one juror had begun thinking about the case, there was no evidence that any deliberation of the case had begun; moreover when the jury reentered the courtroom, the trial court gave a curative instruction. Boone v. State, 293 Ga. App. 654, 667 S.E.2d 880 (2008).
- If, as in this state, the law requires the appointment of counsel for indigent persons, and certainly in a capital case, if the defendant is unable to engage a lawyer and is incapacitated by ignorance, illiteracy, physical disability, or the like, to adequately make the defendant's own defense, due process of law requires that the court assign counsel for the defendant, competent to serve, and who shall give more than casual or perfunctory service to the prisoner. Lip service only will not do. And the constitution also requires that a fair opportunity shall be afforded such counsel to consult the client and to prepare a defense against the charge. Coates v. Lawrence, 46 F. Supp. 414 (S.D. Ga. 1942), aff'd, 131 F.2d 110 (5th Cir. 1942), cert. denied, 318 U.S. 759, 63 S. Ct. 532, 87 L. Ed. 1132 (1943).
- The events triggering the attachment of a right to counsel under the Fifth Amendment differ from those which trigger the attachment under the sixth amendment, but once attached, either right may be waived in an essentially identical manner and subject to the same limitations. Housel v. State, 257 Ga. 115, 355 S.E.2d 651 (1987), cert. denied, 487 U.S. 1240, 108 S. Ct. 2915, 101 L. Ed. 2d 946 (1988).
Four-month delay in appointment of counsel is not, ipso facto, a denial of effective assistance of counsel, if the appellant is appointed counsel at arraignment, and granted a continuance to allow adequate preparation time. Wells v. State, 151 Ga. App. 416, 260 S.E.2d 374 (1979), overruled on other grounds, Copeland v. State, 160 Ga. App. 786, 287 S.E.2d 120 (1982).
- If the petitioner is not forced to go to trial without counsel; and does not ask for counsel; and is not denied the opportunity to procure counsel; and nothing done by the trial court forbids the petitioner's securing counsel or obtaining the benefit thereof, there is no denial, or even an abridgment, of any right secured to the petitioner by the federal or state Constitutions. Clarke v. Cobb, 195 Ga. 633, 24 S.E.2d 782 (1943).
An application for appointment of counsel prior to the initiation of an adversarial judicial proceeding against defendant did not constitute the invocation of the right to counsel for Fifth Amendment purposes. Turner v. State, 267 Ga. 149, 476 S.E.2d 252 (1996).
The mere completion of an application to obtain appointed counsel, without more, is not sufficient to invoke the Fifth Amendment right to counsel. Beck v. State, 235 Ga. App. 707, 510 S.E.2d 368 (1999).
- Because the evidence showed that the defendant's counsel discussed with the defendant the right to testify and advised against it, and the defendant never affirmatively asked to testify, the defendant failed to demonstrate that counsel erroneously deprived the defendant of the choice to testify and that counsel's deficiency in this regard deprived the defendant of a fair trial. Mobley v. State, 264 Ga. 854, 452 S.E.2d 500 (1995); Barron v. State, 264 Ga. 865, 452 S.E.2d 504 (1995).
Improper denial of the right to counsel of choice violates Ga. Const. 1976, Art. I, Sec. I, Para. XI, (see Ga. Const. 1983, Art. I, Sec. I, Para. XIV), and former Code 1933, § 27-403 (see O.C.G.A. § 17-7-24), and abrogates the right of procedural due process. Johnson v. State, 139 Ga. App. 829, 229 S.E.2d 772 (1976).
- Without regard to the grade or seriousness of crimes, U.S. Const., amend. 5 requires, if a person accused of crime procures counsel, that the court shall permit such counsel to represent and assist the accused, but it does not require the court to furnish counsel. It is implied that reasonable opportunity shall be afforded to obtain counsel. Sanford v. Robbins, 115 F.2d 435 (5th Cir. 1940), cert. denied, 312 U.S. 697, 61 S. Ct. 737, 85 L. Ed. 1132 (1941).
Constitutional guarantees of counsel of choice may be waived by action or declaration. Johnson v. State, 139 Ga. App. 829, 229 S.E.2d 772 (1976).
An accused who expresses a desire to deal with the police only through counsel is not subject to further interrogation by the authorities until counsel has been made available to him, unless the accused himself initiates further communication, exchanges or conversations with the police. Barksdale v. State, 161 Ga. App. 155, 291 S.E.2d 18 (1982).
- Law enforcement authorities violated the defendant's right to counsel when they interrogated the defendant knowing that the defendant had previously requested and consulted with an attorney. Gissendaner v. State, 269 Ga. 495, 500 S.E.2d 577 (1998).
While non-custodial and custodial statements were properly admitted, as not vitiating the defendant's constitutional rights once defendant invoked the right to counsel, a subsequent interview initiated by police violated this right; as a result, cocaine seized through information obtained from the interview had to be suppressed as fruit of the poisonous tree. Vergara v. State, 283 Ga. 175, 657 S.E.2d 863 (2008).
- If the defendant has announced only the intention to retain the services of an attorney to represent the defendant at a committal hearing, the accused has not sufficiently expressed "his desire to deal with the police only through counsel" so as to successfully invoke the defendant's rights to counsel and not to be subject to further interrogation by authorities which are provided by Edwards v. Arizona, 451 U.S. 477, 101 S. Ct. 1880, 68 L. Ed. 2d 378 (1981). Ross v. State, 254 Ga. 22, 326 S.E.2d 194, cert. denied, 472 U.S. 1022, 105 S. Ct. 3490, 87 L. Ed. 2d 623 (1985).
When an accused has invoked the right to have counsel present during custodial interrogation, a valid waiver of that right cannot be established by showing only that the defendant responded to further police-initiated custodial interrogation even if the defendant has been advised of the defendant's rights. Barksdale v. State, 161 Ga. App. 155, 291 S.E.2d 18 (1982).
- Neither the defendant's refusal to sign a waiver nor the defendant's attempt to make a "deal" with the defendant's interrogator was an invocation of the defendant's right to a lawyer so that the interview with the defendant should not have taken place. Williams v. State, 258 Ga. 281, 368 S.E.2d 742 (1988), cert. denied, 492 U.S. 925, 109 S. Ct. 3261, 106 L. Ed. 2d 606 (1989).
Because the defendant did not request the presence of an attorney at any time, merely inquired about when in the future the defendant could see a lawyer, and initialed and signed the waiver form that the defendant understood the defendant's rights, the Fifth Amendment right to counsel was not invoked. Beck v. State, 235 Ga. App. 707, 510 S.E.2d 368 (1999).
- Defendant's execution of an "eligibility affidavit form," essentially a financial statement made for the purpose of informing the county indigent defense program of an accused's financial condition, constituted a request for court-appointed counsel once judicial proceedings were initiated and did not constitute an invocation of the right to counsel for Fifth Amendment purposes; thus, a statement given to police while in custody was not taken in violation of the defendant's constitutional rights because at the time the defendant completed the form, no adversarial criminal proceeding had been initiated against the defendant and no sixth amendment concerns had come into play; reversing Hatcher v. State, 212 Ga. App. 46, 441 S.E.2d 672. State v. Hatcher, 264 Ga. 556, 448 S.E.2d 698 (1994), cert. denied, 514 U.S. 1038, 115 S. Ct. 1405, 131 L. Ed. 2d 291 (1995).
- The determination as to an intelligent waiver of the right to counsel must depend, in each case, upon the particular facts and circumstances surrounding the case. Johnson v. State, 139 Ga. App. 829, 229 S.E.2d 772 (1976).
- Lawyers undertake certain professional obligations over and above those demanded of some of the other professions, among them being never to reject, for a consideration personal to themselves, the cause of the defenseless. Weiner v. Fulton County, 113 Ga. App. 343, 148 S.E.2d 143, cert. denied, 385 U.S. 958, 87 S. Ct. 393, 17 L. Ed. 2d 304 (1966).
Judge's request that an attorney represent an indigent criminal is tantamount to a demand with which the attorney must necessarily comply. Weiner v. Fulton County, 113 Ga. App. 343, 148 S.E.2d 143, cert. denied, 385 U.S. 958, 87 S. Ct. 393, 17 L. Ed. 2d 304 (1966).
- An attorney's professional services, work product, and necessary out-of-pocket expenses in providing competent representation are not required by the Constitution to be compensated. Weiner v. Fulton County, 113 Ga. App. 343, 148 S.E.2d 143, cert. denied, 385 U.S. 958, 87 S. Ct. 393, 17 L. Ed. 2d 304 (1966).
- The necessity of counsel is so vital and imperative that the failure of the trial court to make an effective appointment of counsel is likewise a denial of due process within the meaning of U.S. Const., amends. 5 and 14. Bridwell v. Aderhold, 13 F. Supp. 253 (N.D. Ga. 1935), aff'd sub nom. Johnson v. Zerbst, 92 F.2d 748 (5th Cir. 1937), rev'd on other grounds, Johnson v. Zerbst, 304 U.S. 458, 58 S. Ct. 1019, 82 L. Ed. 1461, 146 A.L.R. 357 (1938), overruled on other grounds, Wilkins v. Bowersox, 145 F.3d 1006 (8th Cir. 1998).
- In the conduct of a trial, broad latitude of advice, direction, and policy in the interest of the client is essentially vested in counsel. Counsel often waive apparently important points in the bona fide belief that, on the whole, greater advantage will be gained indirectly than might have been gained directly by insisting on them, and such a waiver either express or implied would ordinarily not tend to show incompetency. No lawyer is infallible, and the constitutional guaranties of the benefit of counsel, and of due process, do not contemplate such infallibility. Wilcoxon v. Aldredge, 193 Ga. 661, 19 S.E.2d 499, cert. denied, 317 U.S. 626, 63 S. Ct. 36, 87 L. Ed. 506 (1942).
- The due process clause of U.S. Const., amend. 5 is violated whenever the performance of counsel, whether retained or appointed, is so deficient as to render the proceedings fundamentally unfair. United States v. Alvarez, 580 F.2d 1251 (5th Cir. 1978).
Defendant's due process rights were violated where throughout the state and federal habeas proceedings the defendant was induced to plead guilty by the defendant's counsel's erroneous advice that the plea bargain would enable the defendant to serve the federal and state sentences concurrently. Thus, the attorney provided ineffective assistance to the defendant as the guilty plea was not knowing, intelligent and voluntary. Finch v. Vaughn, 67 F.3d 909 (11th Cir. 1995).
- That attorneys do not move for a continuance and obtain a longer time to prepare the case, because they allow irrelevant or otherwise illegal evidence to be admitted without objection, that they rely solely on the statement of the defendant to the jury without introducing testimony, and that they themselves do not actively pursue a motion for new trial are not matters which would constitute a denial of the right to due process, but at most would amount to alleged negligence or errors of judgment. Wilcoxon v. Aldredge, 193 Ga. 661, 19 S.E.2d 499, cert. denied, 317 U.S. 626, 63 S. Ct. 36, 87 L. Ed. 506 (1942).
- An accused, whether represented by appointed or retained counsel, is deprived of the right to effective assistance of counsel under U.S. Const., amend. 5 and U.S. Const., amend. 6, even in the absence of a showing of prejudice, when the accused's attorney operates under an actual conflict of interest. United States v. Alvarez, 580 F.2d 1251 (5th Cir. 1978).
- Where defense counsel is present at the first poll of the jury and fails to apprise the court of any defect in the polling procedure, absence of defense counsel at the post-sentence poll, held after realization that two jurors had inadvertently not been polled, of two jurors inadvertently omitted in original poll is not violative of any appellant's constitutional rights to counsel or due process. Hargett v. State, 151 Ga. App. 532, 260 S.E.2d 406 (1979).
- If none of the statutory requirements necessary for the granting of a continuance are put forth by co-counsel when the case is called, and there is no showing that the defendant was injured by the absence of the defendant's lead counsel, there is no merit in the complaint that the trial court erred in denying the defendant's motion for continuance because of the absence of counsel and that the defendant has been denied the sixth amendment right to counsel and the Fifth Amendment right to due process as guaranteed by the state and federal constitutions. Blair v. State, 166 Ga. App. 434, 304 S.E.2d 535 (1983).
Where a preliminary hearing is held in the absence of defendant's counsel, the reviewing court must reverse if it determines that the lack of counsel might have contributed to the conviction. Mitchell v. State, 173 Ga. App. 560, 327 S.E.2d 537 (1985).
- A judge must be present before a defendant may waive the constitutional right to be represented by counsel at a plea hearing. Penney v. Vaughn, 870 F. Supp. 1093 (M.D. Ga. 1994).
- Counsel's abandonment of a criminal appeal, without notice and without the defendant's consent, deprives the defendant of right to counsel and right to appeal. Chapman v. United States, 469 F.2d 634 (5th Cir. 1972).
- Even if appointed counsel is not required to file a petition for rehearing under former Rule 33 (now Rule 48) of the Georgia Court of Appeals, a defendant is denied due process if that court fails to notify the defendant adequately of the right to file the petition pro se. Moye v. Highsmith, 460 F.2d 1388 (5th Cir. 1972), superseded, overruled on other grounds, Galtieri v. Wainwright, 582 F.2d 348 (5th Cir. 1978).
- Because the Criminal Procedure Discovery Act (O.C.G.A. § 17-16-1 et seq.) provides for reciprocal discovery in criminal felony cases with any imbalance favoring the defendant, it does not violate the due process clause of the United States or Georgia Constitutions. State v. Lucious, 271 Ga. 361, 518 S.E.2d 677 (1999).
Withholding or suppression by the prosecution of evidence material to guilt or punishment is violative of due process. United States v. D'Antignac, 628 F.2d 428 (5th Cir. 1980), cert. denied, D'Antignac v. United States, 450 U.S. 967, 101 S. Ct. 1485, 67 L. Ed. 2d 617 (1981).
- Right of the criminal defendant to compulsory process under U.S. Const., amend. 6 and the right to due process under U.S. Const., amend. 5 are sufficiently pervasive to require the presence of material witnesses in defendant's behalf. Wingfield v. State, 159 Ga. App. 69, 282 S.E.2d 713 (1981).
Omitted evidence must create a reasonable doubt of guilt that did not otherwise exist in order to justify a new trial. United States v. D'Antignac, 628 F.2d 428 (5th Cir. 1980), cert. denied, D'Antignac v. United States, 450 U.S. 967, 101 S. Ct. 1485, 67 L. Ed. 2d 617 (1981).
No statutory authority for discovery in criminal cases exists in this state. Brooks v. State, 141 Ga. App. 725, 234 S.E.2d 541 (1977).
Due process requires that the state not suppress evidence in its files that may be favorable to the accused. Brooks v. State, 141 Ga. App. 725, 234 S.E.2d 541 (1977).
- A defendant does not, as a matter of right, have the right to discover evidence, from a district attorney or other prosecuting officer of the state, documentary or otherwise, for use by the defendant or defense counsel before trial. Jones v. State, 135 Ga. App. 893, 219 S.E.2d 585 (1975).
- There is no provision of Georgia law providing for discovery in criminal cases, and the due process requirements stated in Brady v. Maryland, 373 U.S. 83, 83 S. Ct. 1194, 10 L. Ed. 2d 215 (1963), and its progeny do not compel the prosecution to actively seek material which is not within its file in order to provide such to the defense. Honrine v. State, 177 Ga. App. 490, 339 S.E.2d 768 (1986).
State is under no requirement to conduct investigation on behalf of a defendant. Dalton v. State, 251 Ga. 641, 308 S.E.2d 835 (1983).
- Defendant's Fifth Amendment rights were not violated when the defendant did not receive a copy of an exculpatory witness' statement until after indictment and following the defendant's second attorney's discovery motion. Defendant failed to prove how the outcome of the case would have been any different if defendant had been supplied the exculpatory statement at an earlier date. Rock v. Lowe, 893 F. Supp. 1573 (S.D. Ga. 1995), aff'd without op., 79 F.3d 1161 (11th Cir. 1996).
Defendant's due process rights were not violated when the state crime lab lost a condom found 150 feet from the crime scene before the bodily fluids in the condom could be tested because the defendant failed to show both: (1) that it was apparent that the condom, which was found in a location frequented by prostitutes, would contain evidence of exculpatory value; and (2) that the state acted in bad faith in losing the condom, which occurred before the defendant was arrested and identified as a suspect. Sharp v. State, 286 Ga. 799, 692 S.E.2d 325 (2010).
- Defendant's due process rights were not violated by the state's turning over of a vehicle to codefendant's insurance company since the state did not destroy or fail to preserve the alleged exculpatory evidence. King v. State, 262 Ga. App. 37, 584 S.E.2d 652 (2003).
- In a criminal case, in order to establish a due process violation based on denial of a Brady v. Maryland, 373 U.S. 83, 83 S. Ct. 1194, 10 L. Ed. 2d 215 (1963) motion for discovery of exculpatory material, the defendant has the burden of showing that any of the information allegedly withheld improperly was favorable to the defense, and that the withholding in any way denied the defendant a fair trial. Lewis v. State, 166 Ga. App. 428, 304 S.E.2d 531 (1983).
If the police lose evidence, no statutory or constitutional violation occurs. A Brady v. Maryland, 373 U.S. 83, 83 S. Ct. 1194, 10 L. Ed. 2d 215 (1963) violation occurs only when the state withholds exculpatory information in its possession from the defendant, and if the state does not withhold any information, but the police lose it, there is no error under O.C.G.A. § 17-7-211 (repealed), which entitles the defendant to copies of scientific reports possessed by the state. Dawson v. State, 166 Ga. App. 515, 304 S.E.2d 570 (1983).
- The prosecution is required to turn over to the defense evidence which is favorable to the accused and material to guilt or punishment. Stroud v. State, 246 Ga. 717, 273 S.E.2d 155 (1980).
- Due process considerations are not relevant to a discussion of a case where it had not been argued that the state purposefully suppressed evidence favorable to the accused. Jones v. State, 135 Ga. App. 893, 219 S.E.2d 585 (1975).
- Pretrial discovery in favor of defendants is not required by considerations of due process in the absence of a showing that the evidence denied disclosure of by the prosecution upon request was materially favorable to the accused either as direct or impeaching evidence. Jones v. State, 135 Ga. App. 893, 219 S.E.2d 585 (1975).
- Where none of the materials sought for inspection were exculpatory in nature, the trial court does not err in refusing to compel discovery pursuant to defendant's notices to produce any subpoenas. Jones v. State, 135 Ga. App. 893, 219 S.E.2d 585 (1975).
Where defendant's conviction or acquittal is dependent upon the identification of the substance as contraband, due process of law requires that analysis of the substance not be left completely within the province of the state, but the defendant does not have an absolute, unqualified right to examine such evidence. Emmett v. State, 243 Ga. 550, 255 S.E.2d 23 (1979).
- The refusal to disclose to the defendant the statements made to a psychologist by a prosecution witness during hypnotic sessions did not deny the defendant due process of law nor effective assistance of counsel because such statements were inadmissible at trial. Creamer v. State, 232 Ga. 136, 205 S.E.2d 240 (1974).
- The government in a federal prosecution has an affirmative duty under the due process clause of U.S. Const., amend. 5 to make available to an accused at the appropriate time, well in advance of trial, information which would be favorable to the accused as either direct or impeaching evidence. United States v. Houston, 339 F. Supp. 762 (N.D. Ga. 1972).
- The suppression by the prosecution of evidence favorable to an accused, who has requested such evidence, violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution. Calley v. Callaway, 519 F.2d 184 (5th Cir. 1975), cert. denied, 425 U.S. 911, 47 L. Ed. 2d 760, 96 S. Ct. 1505 (1976); United States v. Anderson, 574 F.2d 1347 (5th Cir. 1978).
- Disclosure of material evidence favorable in the sense of mitigation or exculpation also requires the prosecution to disclose evidence important and useful for impeachment purposes. Calley v. Callaway, 519 F.2d 184 (5th Cir. 1975), cert. denied, 425 U.S. 911, 47 L. Ed. 2d 760, 96 S. Ct. 1505 (1976).
- The prosecution, in federal court, must disclose to an accused before trial, upon timely request, the names and addresses of persons known to the government who have information about the accused or about the facts of the case. United States v. Houston, 339 F. Supp. 762 (N.D. Ga. 1972).
- The knowing use by the prosecution of false evidence or perjured testimony which is material to the issues in a criminal trial is a denial of due process. A conviction obtained by use of such evidence cannot be permitted to stand. United States v. Anderson, 574 F.2d 1347 (5th Cir. 1978).
- Failure of government to disclose to the defense and to the trial jury the existence of plea bargaining negotiations with a key witness deprives a defendant of due process of law under U.S. Const., amend. 5. United States v. Fontenot, 483 F.2d 315 (5th Cir. 1973).
Right to offer testimony and to compel witness' attendance is, in essence, the right to present a defense, and a fundamental element of due process of law. Calley v. Callaway, 382 F. Supp. 650 (M.D. Ga. 1974), rev'd on other grounds, 519 F.2d 184 (5th Cir. 1975), cert. denied, 425 U.S. 911, 96 S. Ct. 1505, 47 L. Ed. 2d 760 (1976).
- Once it is established that a defendant's subpoena of a witness is relevant on any issue, it should be granted as mandated by the due process clause of U.S. Const., amend. 5 and the compulsory process provision of U.S. Const., amend. 6. Calley v. Callaway, 382 F. Supp. 650 (M.D. Ga. 1974), rev'd on other grounds, 519 F.2d 184 (5th Cir. 1975), cert. denied, 425 U.S. 911, 96 S. Ct. 1505, 47 L. Ed. 2d 760 (1976).
Compulsory process applies to relevant and material witnesses, and nonfrivolous request should be granted. Calley v. Callaway, 382 F. Supp. 650 (M.D. Ga. 1974), rev'd on other grounds, 519 F.2d 184 (5th Cir. 1975), cert. denied, 425 U.S. 911, 96 S. Ct. 1505, 47 L. Ed. 2d 760 (1976).
- The right of a defendant to have compulsory process may not be sidestepped merely because of inconvenience, or because the court considers the witness' testimony cumulative. Calley v. Callaway, 382 F. Supp. 650 (M.D. Ga. 1974), rev'd on other grounds, 519 F.2d 184 (5th Cir. 1975), cert. denied, 425 U.S. 911, 96 S. Ct. 1505, 47 L. Ed. 2d 760 (1976).
For circumstances indicating relevancy of witness' testimony, thus entitling defendant to have them subpoenaed. - See Calley v. Callaway, 382 F. Supp. 650 (M.D. Ga. 1974), rev'd on other grounds, 519 F.2d 184 (5th Cir. 1975), cert. denied, 425 U.S. 911, 96 S. Ct. 1505, 47 L. Ed. 2d 760 (1976).
Technical violations of procedure should not be allowed to emasculate the efficacy of constitutionally required compulsory process. Calley v. Callaway, 382 F. Supp. 650 (M.D. Ga. 1974), rev'd on other grounds, 519 F.2d 184 (5th Cir. 1975), cert. denied, 425 U.S. 911, 96 S. Ct. 1505, 47 L. Ed. 2d 760 (1976).
Defense need not always comply with every technical procedural requirement before being entitled to compulsory process. Calley v. Callaway, 382 F. Supp. 650 (M.D. Ga. 1974), rev'd on other grounds, 519 F.2d 184 (5th Cir. 1975), cert. denied, 425 U.S. 911, 96 S. Ct. 1505, 47 L. Ed. 2d 760 (1976).
Generalized assertion of privilege yields to a demonstrated, specific need for evidence in a pending criminal trial. Calley v. Callaway, 382 F. Supp. 650 (M.D. Ga. 1974), rev'd on other grounds, 519 F.2d 184 (5th Cir. 1975), cert. denied, 425 U.S. 911, 96 S. Ct. 1505, 47 L. Ed. 2d 760 (1976).
- A defendant in a drug prosecution has a due process right to have an expert of the defendant's choosing perform an independent analysis on the seized substance. United States v. Nabors, 707 F.2d 1294 (11th Cir. 1983), cert. denied, 465 U.S. 1021, 104 S. Ct. 1271, 79 L. Ed. 2d 677 (1984); United States v. Lockett, 867 F. Supp. 1044 (M.D. Ga. 1994), aff'd, 70 F.3d 126 (11th Cir. 1995).
- The mistaken destruction of material seized in a drug case, so that the defendant cannot examine it, does not per se require the exclusion of testimony as to the nature of the material by the government witness who tested it. United States v. Nabors, 707 F.2d 1294 (11th Cir. 1983), cert. denied, 465 U.S. 1021, 104 S. Ct. 1271, 79 L. Ed. 2d 677 (1984); United States v. Lockett, 867 F. Supp. 1044 (M.D. Ga. 1994), aff'd, 70 F.3d 126 (11th Cir. 1995).
Without discounting the right of defendants in a drug prosecution to examine the material they are charged with possessing, the material has been destroyed in spite of the government's good faith attempt to preserve it, testimony as to the nature of the material need not be suppressed absent some showing that the testing of the material by another expert would have been reasonably likely to produce evidence favorable to the defendant. United States v. Nabors, 707 F.2d 1294 (11th Cir. 1983), cert. denied, 465 U.S. 1021, 104 S. Ct. 1271, 79 L. Ed. 2d 677 (1984); United States v. Lockett, 867 F. Supp. 1044 (M.D. Ga. 1994), aff'd, 70 F.3d 126 (11th Cir. 1995).
- The trial court did not err in not requiring that the state present for inspection its entire file following defendant's motion and in not conducting an in camera inspection of the state's file prior to trial, where defendant did not file a separate request for in camera inspection. Swann v. State, 256 Ga. 254, 347 S.E.2d 555 (1986).
Evidence of a tape recording in which the victim had called a telephone operator after an attack, and that the operator had in turn called the police was relevant to illustrate the time span between discovery of the crime and police arrival on the scene. This fact was material, because it bore on the issue of whether or not the perpetrator had an opportunity to leave the scene. Catchings v. State, 256 Ga. 241, 347 S.E.2d 572 (1986).
Defendant's due process rights are not violated when district judge refers motion to suppress to a magistrate, reviews the record of the hearing before the magistrate, and adopts the magistrate's recommendations. United States v. Elsoffer, 644 F.2d 357 (5th Cir. 1981).
- Since the government which prosecutes an accused also has the duty to protect the defendant's constitutional rights, it may not undertake prosecution and then invoke its governmental privileges to deprive the accused of anything which might be material to the accused's defense. Calley v. Callaway, 382 F. Supp. 650 (M.D. Ga. 1974), rev'd on other grounds, 519 F.2d 184 (5th Cir. 1975), cert. denied, 425 U.S. 911, 96 S. Ct. 1505, 47 L. Ed. 2d 760 (1976).
- The assertion of presidential privilege must yield to the need for evidence in a pending criminal trial and the fundamental demands of due process of law in the fair administration of justice. Calley v. Callaway, 382 F. Supp. 650 (M.D. Ga. 1974), rev'd on other grounds, 519 F.2d 184 (5th Cir. 1975), cert. denied, 425 U.S. 911, 96 S. Ct. 1505, 47 L. Ed. 2d 760 (1976).
There is no presidential privilege to withhold evidence that is demonstrably relevant in a criminal trial because of the guarantee of due process of law and the necessity to protect the basic function of the courts. Calley v. Callaway, 382 F. Supp. 650 (M.D. Ga. 1974), rev'd on other grounds, 519 F.2d 184 (5th Cir. 1975), cert. denied, 425 U.S. 911, 96 S. Ct. 1505, 47 L. Ed. 2d 760 (1976).
Absent a claim of need to protect military, diplomatic, or sensitive national security secrets, the right under U.S. Const., amend. 6, to compulsory process and the right under U.S. Const., amend. 5 to due process of law require the presidential privilege as to confidential communications to give way where the district court determines after in-camera inspection that the material is relevant and admissible in a criminal trial. United States v. Brown, 634 F.2d 819 (5th Cir. 1981).
- The legislative branch is not entitled to invoke the privilege of confidentiality at the expense of the individual accused's right to evidence at the accused's criminal trial. Calley v. Callaway, 382 F. Supp. 650 (M.D. Ga. 1974), rev'd on other grounds, 519 F.2d 184 (5th Cir. 1975), cert. denied, 425 U.S. 911, 96 S. Ct. 1505, 47 L. Ed. 2d 760 (1976).
- Even assuming that the pre-trial identification procedures were improperly suggestive, a victim's and a witness's in-court identifications were admissible because they were based on their independent recollections of the incident since the victim testified in court that the victim was 100 percent certain the defendant was the robber and that the victim's identification of the defendant was based on recognizing the defendant from the incident and the witness testified that the witness was certain the defendant was the person running with the gun on the day of the incident. Boatwright v. State, 281 Ga. App. 560, 636 S.E.2d 719 (2006).
- Because the defendant was not in police custody at the time of the defendant's secretly taped telephone conversation with a coconspirator, the defendant's Fifth Amendment rights were not implicated. Thorpe v. State, 285 Ga. 604, 678 S.E.2d 913 (2009).
There is no constitutional right to an appeal. Brown v. State, 177 Ga. App. 146, 338 S.E.2d 718 (1985) (but see Chapman v. United States, 469 F.2d 634 (5th Cir. 1972).
- State death row inmate's federal habeas petition was denied because the prosecutor did not fail to disclose under Giglio that the prosecutor had promised a codefendant to write a favorable letter to the parole board as part of a plea agreement because the prosecutor did not decide to do so until after the codefendant testified. Ford v. Schofield, 488 F. Supp. 2d 1258 (N.D. Ga. 2007), aff'd 546 F.3d 1326 (11th Cir. Ga. 2008).
Appeal from a district court's judgment of conviction in a criminal case is a matter of right, and abridgement of this right is incompatible with the most basic concept of due process. Chapman v. United States, 469 F.2d 634 (5th Cir. 1972).
Waiver of right to appeal criminal conviction not assumed unless the facts clearly support such an assumption. Chapman v. United States, 469 F.2d 634 (5th Cir. 1972).
- Equal protection and due process require that an indigent defendant, unable to pay the cost of recording and transcribing the proceedings, may not be denied adequate and effective appellate review accorded to all who have the money to pay these costs. Harm arises when, due to the absence of a transcript or an effective alternative, an enumeration of error raised by an indigent defendant cannot be adequately and effectively reviewed by the appellate courts. Sales v. State, 152 Ga. App. 635, 263 S.E.2d 519 (1979).
- The purchase of a complete court reporter's transcript for indigent defendants is not required in all instances, but the burden which rests upon the state is to afford the indigent defendant a record of sufficient completeness to permit proper consideration of the contentions of error. Sales v. State, 152 Ga. App. 635, 263 S.E.2d 519 (1979).
- Defendant was not deprived of defendant's due process rights by a seven-month delay in the filing of the transcript as defendant did not show that the delay impacted defendant's ability to adequately present defendant's appeal or impaired any defense that defendant might have had. Carter v. State, 267 Ga. App. 520, 600 S.E.2d 637 (2004).
- Delay in resolving the defendant's motion for new trial did not violate defendant's right to due process because the defendant failed to offer the specific evidence required to show that the delay prejudiced the defendant's appeal or that the result of the appeal would have been different but for the delay; although the trial exhibits were not in the record, the defendant failed to explain how the absence of the trial exhibits impaired the defendant's ability to assert claims on appeal, while the defendant asserted that the defendant could have raised a challenge on appeal to the trial court's denial of the defendant's pre-trial motion for change of venue, the defendant failed to specify how the delay in proceedings harmed the defendant's ability to make such a claim, particularly given that voir dire was transcribed fully in the record, and the defendant made the bare assertion that it was impossible to investigate potential claims for ineffective assistance of trial counsel without identifying any reasonably viable ineffectiveness claims that could have been raised and without indicating whether any efforts had been made to contact trial counsel in that regard. Owens v. State, 286 Ga. 821, 693 S.E.2d 490, cert. denied, 131 S. Ct. 156, 178 L. Ed. 2d 93 (2010); overruled on other grounds by Shelton v. Lee, 2016 Ga. LEXIS 452 (Ga. 2016).
- The standard by which the evidence in a state criminal trial must be evaluated on appeal to determine whether petitioner has been accorded constitutional due process has been formulated by the Supreme Court of the United States to require, instead of determining whether or not there is "any evidence" to support petitioner's conviction, that a court on appeal must go further and satisfy itself that the evidence in the record could reasonably support a finding of guilt beyond a reasonable doubt. The question, therefore, is not a question of the presence of evidence in the record but of the sufficiency of that evidence. Holloway v. McElroy, 474 F. Supp. 1363 (M.D. Ga. 1979), aff'd, 632 F.2d 605 (5th Cir. 1980), cert. denied, 451 U.S. 1028, 101 S. Ct. 3019, 69 L. Ed. 2d 398 (1981), overruled on other grounds, Baker v. Montgomery, 811 F.2d 55 (11th Cir. 1987).
- Federal review of a jury charge is appropriate only where it operates in an oppressive and arbitrary manner so as to render the trial fundamentally unfair. Bassett v. Smith, 464 F.2d 347 (5th Cir. 1972), cert. denied, 410 U.S. 991, 93 S. Ct. 1509, 36 L. Ed. 2d 190 (1973).
- General rule is that a defendant has the burden on appeal of proving actual jury prejudice if a conviction is to be reversed on grounds of prejudicial publicity. The requirement of showing actual prejudice may not be necessary in extreme circumstances where there has been inherently prejudicial publicity such as to make the possibility of prejudice highly likely or almost unavoidable. Calley v. Callaway, 519 F.2d 184 (5th Cir. 1975), cert. denied, 425 U.S. 911, 96 S. Ct. 1505, 47 L. Ed. 2d 760 (1976).
Detailed explanations of the consequences of failure to proceed with an administrative appeal are not required with regard to notice of the right to appeal after criminal convictions, nor after prison disciplinary proceedings. Lane v. Hanberry, 593 F.2d 648 (5th Cir. 1979).
- Due process requirements of U.S. Const., amends. 5 and 14, mandate notice and an evidentiary hearing upon the trial court's decision to revoke an appeal bail bond. Riggins v. State, 134 Ga. App. 941, 216 S.E.2d 723 (1975).
Sole function of habeas corpus is to provide relief from unlawful imprisonment or custody, and it cannot be used for any other purpose. Cook v. Hanberry, 592 F.2d 248 (5th Cir.), supplementary opinion, 596 F.2d 658 (5th Cir.), cert. denied, 442 U.S. 932, 99 S. Ct. 2866, 61 L. Ed. 2d 301 (1979).
- The relief from such unconstitutional practices, if proved, is in the form of equitably imposed restraint, not freedom from otherwise lawful incarceration. Cook v. Hanberry, 592 F.2d 248 (5th Cir.), supplementary opinion, 596 F.2d 658 (5th Cir.), cert. denied, 442 U.S. 932, 99 S. Ct. 2866, 61 L. Ed. 2d 301 (1979).
- A person in custody under a sentence in a misdemeanor case is not entitled to be discharged on writ of habeas corpus on the ground that the person was denied the right to be tried by a jury, merely because the trial judge determined the case without a jury. The act governing the procedure of the court in which the person was tried containing a provision that a jury trial be had when demanded by the accused, but no demand therefor having been made. Clarke v. Cobb, 195 Ga. 633, 24 S.E.2d 782 (1943).
- A federal habeas court may rely on the record in the state court in lieu of an independent hearing if the state court proceedings were full and fair. Farmer v. Caldwell, 476 F.2d 22 (5th Cir.), cert. denied, 414 U.S. 868, 94 S. Ct. 178, 38 L. Ed. 2d 117 (1973).
- The dismissal of an appeal to the Georgia Supreme Court from the denial of a petition for habeas corpus for failure to comply with the Supreme Court's rules does not in and of itself support an inference of a deliberate by-pass of state remedies. Johnson v. Smith, 449 F.2d 127 (5th Cir. 1971).
- In a federal habeas corpus action the burden of establishing the absence of a deliberate by-pass of state remedies is on the prisoner. Bonaparte v. Smith, 448 F.2d 385 (5th Cir. 1971).
Denial of a motion of autrefois acquit is directly appealable, unless found to be frivolous. Lewis v. State, 179 Ga. App. 121, 346 S.E.2d 70 (1986).
A post-trial declaration by a state witness that the witness' former testimony was false is not cause for a new trial. Pryor v. State, 179 Ga. App. 293, 346 S.E.2d 104 (1986).
Trial court's amendment of a sentence to clarify that the sentence is to run consecutively with a prior life sentence constitutes a denial of the defendant's double jeopardy rights, where O.C.G.A. § 17-10-10 provides that sentences are presumed to run concurrently with preexisting sentences and the defendant has already begun serving the latest sentence prior to the court's amendment of the sentence. Schamber v. Newsome, 696 F. Supp. 1506 (N.D. Ga. 1988).
Due process applies to revocations of probation, since revocation of probation results in loss of liberty. United States v. Cornwell, 625 F.2d 686 (5th Cir.), cert. denied, 449 U.S. 1066, 101 S. Ct. 794, 66 L. Ed. 2d 610 (1980).
Probationer is entitled to notice and hearing when petition filed to revoke probation. United States v. Cornwell, 625 F.2d 686 (5th Cir.), cert. denied, 449 U.S. 1066, 101 S. Ct. 794, 66 L. Ed. 2d 610 (1980).
- To deprive a defendant of liberty upon the theory that the defendant violated any of the rules and regulations prescribed in a suspended or probated sentence without giving the defendant notice and opportunity to be heard upon the question of whether or not the defendant violated such rules and regulations, would be to violate one of the fundamentals of jurisprudence that a person shall not be deprived of liberty without due process of law, which includes notice and opportunity to be heard. Lester v. Foster, 207 Ga. 596, 63 S.E.2d 402 (1951).
- District courts shall provide notice to probationers of proposed extensions and advise probationers that they have a right to a hearing before the court acts. United States v. Cornwell, 625 F.2d 686 (5th Cir.), cert. denied, 449 U.S. 1066, 101 S. Ct. 794, 66 L. Ed. 2d 610 (1980).
- The constitution does not require the sentencing court or the probation department to inform a defendant of the substantive aspects of the sentencing laws. United States v. Simpson, 904 F.2d 607 (11th Cir. 1990).
Defendant was not denied due process under the Fifth Amendment when neither the district court nor the probation officer informed the defendant that sentence might be favorably adjusted under federal sentencing guidelines for the defendant's acceptance of responsibility. United States v. Simpson, 904 F.2d 607 (11th Cir. 1990).
- Even if grand jury entered a "No Bill" as to charge against a defendant of criminal damage to property in the second degree (the trial judge in the hearing as to the revocation of probation finding "criminal trespass"), there is no violation of the due process guarantee bestowed upon defendant by U.S. Const., amend. 5 or U.S. Const., amend. 14, or Ga. Const. 1976, Art. I, Sec. I, Para. I (see Ga. Const. 1983, Art. I, Sec. I., Para. I). Mingo v. State, 155 Ga. App. 284, 270 S.E.2d 700 (1980).
Condition of probation which invades right to personal self-expression and which is not related directly to rehabilitation, cannot meet the test of reasonableness. Inman v. State, 124 Ga. App. 190, 183 S.E.2d 413 (1971).
- Imposition as a condition of probation that the defendant, who was convicted of aggravated child molestation, have no direct or indirect contact with the defendant's seven-year-old child until the child reaches the age of majority, was within the discretion of the court and was not a violation of the defendant's constitutional rights. Tuttle v. State, 215 Ga. App. 396, 450 S.E.2d 863 (1994).
Requiring the defendant to wear a short haircut as a condition of probation is violative of U.S. Const., amend. 5. Inman v. State, 124 Ga. App. 190, 183 S.E.2d 413 (1971).
Special parole term provision of the federal comprehensive Drug Abuse Prevention and Control Act does not violate the due process clause of U.S. Const., amend. 5. United States v. Lockley, 590 F. Supp. 1215 (N.D. Ga. 1984).
Requirement that a probationer submit to psychological stress evaluation examinations does not violate the probationer's Fifth Amendment rights since the main function of such evaluation appears to be the added psychological factor that, if the probationer fails to tell the truth, the probationer will be detected. Such a function is permissible. Owens v. Kelley, 681 F.2d 1362 (11th Cir. 1982).
Denial or revocation of parole to detained aliens constitutes part of the admission process and, therefore, does not involve any constitutional rights. Fernandez-Roque v. Smith, 734 F.2d 576 (11th Cir. 1984).
Revocation of probation, premised upon failure to timely pay court-ordered restitution, does not violate due process and equal protection. Wilson v. State, 155 Ga. App. 825, 273 S.E.2d 210 (1980).
- Where the defendant receives written notice of the claimed violation of probation, the disclosure of the evidence against the defendant, an opportunity to be heard in person and to present witnesses and document evidence, the right to confront and cross-examine adverse witnesses, heard by a neutral and detached judicial officer with a written statement by the fact-finder as to the evidence relied on and reasons for revoking probation, application of the "slight evidence" rule does not deny the defendant due process and equal protection. Mingo v. State, 155 Ga. App. 284, 270 S.E.2d 700 (1980).
Due process requires that an individual on parole be afforded a hearing before the parole is revoked. United States v. Cornwell, 625 F.2d 686 (5th Cir.), cert. denied, 449 U.S. 1066, 101 S. Ct. 794, 66 L. Ed. 2d 610 (1980).
- Revocation of parole is not part of a criminal prosecution and thus the full panoply of rights due a defendant in such a proceeding does not apply. Revocation deprives an individual, not of the absolute liberty to which every citizen is entitled, but only of the conditional liberty properly dependent on observance of special parole restrictions. Mingo v. State, 155 Ga. App. 284, 270 S.E.2d 700 (1980); Christian v. State, 164 Ga. App. 612, 298 S.E.2d 325 (1982).
- Defendant's due process rights were not violated by parole board's refusal to consider the defendant's application or to grant a personal interview where such decisions were in accord with then-existing common law (pre- Akins ) and parole regulations. Lemley v. Bowers, 813 F. Supp. 814 (N.D. Ga. 1992).
- The current Georgia parole system does not give rise to a liberty interest. Accordingly, there is no right to procedural due process. Greene v. Georgia Pardons & Parole Bd., 807 F. Supp. 748 (N.D. Ga. 1992).
Prisoner is not entitled to statement of reasons for denial of parole under U.S. Const., amend. 5. Mitchell v. Sigler, 389 F. Supp. 1012 (N.D. Ga. 1975).
Refusal of parole board to allow inmate to examine the inmate's file does not assume the proportions of a deprivation of the inmate's rights under the Constitution or the laws of the United States. Jackson v. Reese, 608 F.2d 159 (5th Cir. 1979).
- Failure to hold a hearing prior to revocation of parole after forfeiture of bond arising from a traffic violation, which under former Code 1933, § 24-310a (see O.C.G.A. § 40-13-58) is construed as an admission of guilt, is a denial of due process of law, since under former Code 1933, § 24-312a (see O.C.G.A. § 40-13-60) traffic violations are not misdemeanors, and therefore do not fall within the exceptions under former Code 1933, § 77-591 (see O.C.G.A. § 42-9-51) to the requirement of a hearing before revocation. Duncan v. Ricketts, 232 Ga. 89, 205 S.E.2d 274 (1974).
- There must be a showing of both unreasonable delay and prejudice before a person is entitled to release from custody because of a delay in obtaining a final parole revocation hearing. Beck v. Wilkes, 589 F.2d 901 (5th Cir.), cert. denied, 444 U.S. 845, 100 S. Ct. 90, 62 L. Ed. 2d 58 (1979).
- The benefit and protection afforded under the due process and equal protection clauses of the state and federal Constitutions are not in anywise violated by the fact that the establishment of a defendant's guilt beyond a reasonable doubt is not necessary to justify the revocation of a sentence of probation. Mingo v. State, 155 Ga. App. 284, 270 S.E.2d 700 (1980).
Prisoner who receives a harsher sentence than other prisoners of the class may be the subject of unconstitutional discrimination, but if the prisoner is treated as any other military prisoner who is confined in a federal prison, being subject to the advantages and disadvantages of the civilian prison, there is no violation of the due process clause of U.S. Const., amend. 5. Bates v. Wilkinson, 267 F.2d 779 (5th Cir. 1959).
- Where there appears to be a profound and adverse change in a prisoner's status, both with regard to the conditions of the prisoner's confinement and with regard to the prisoner's chances for parole, as a result of being designated a "special offender," a prisoner is entitled to the basic elements of rudimentary due process before being so designated. Stassi v. Hogan, 395 F. Supp. 141 (N.D. Ga. 1975), overruled on other grounds, Mayo v. Sigler, 428 F. Supp. 1343 (N.D. Ga. 1977).
- Sheriff's knowledge of prisoner's need for medical care and the intentional refusal to provide that care constituted "deliberate indifference," and the sheriff lost the entitlement to qualified immunity to suit under 42 U.S.C. § 1983 for violating the prisoner's fifth, eighth and fourteenth amendment rights. Harris v. Coweta County, 21 F.3d 388 (11th Cir. 1994).
- If a defendant has been confined in a cell for nearly three months and interrogation is directed at obtaining evidence to be used in prosecuting the defendant, this is a time when legal advice is critical to the defendant and there is, therefore, a duty of the interrogators to determine if the defendant has counsel and whether the defendant wants counsel present during the interrogation. Breach of this duty violates U.S. Const., amends. 5 and 6. Clifton v. United States, 341 F.2d 649 (5th Cir. 1965).
- Prison regulation prohibiting inmate assistance in the drafting of pro se legal papers constituted a deprivation of due process of law, where no reasonable alternative was available to furnish legal advice. Williams v. United States Dep't of Justice, 433 F.2d 958 (5th Cir. 1970).
- The language of prison visitation regulations did not create a protected liberty interest in visitation privileges under the Fifth Amendment right to due process. Caraballo-Sandoval v. Honsted, 35 F.3d 521 (11th Cir. 1994).
- Due process is not denied if a defendant is prohibited from making outgoing telephone calls after conviction, if the defendant is granted the right to a hearing upon the ruling and if the defendant has failed to show in what manner access to counsel is unduly restricted, or to show any harm flowing from the alleged restriction. Wilson v. State, 151 Ga. App. 501, 260 S.E.2d 527 (1979).
Depriving a prisoner of the use of certain of the prisoner's belongings for a week and one pair of the prisoner's shoes permanently did not amount to an independent constitutional tort, depriving the prisoner of substantive due process. Vincent v. Lynch, 626 F. Supp. 801 (N.D. Ga. 1985).
- Constitutional due process requires state prison authorities to provide to a prisoner a written statement by the fact-finders as to evidence relied on and reasons for disciplinary action taken against a prisoner by prison authorities. Mitchell v. Sigler, 389 F. Supp. 1012 (N.D. Ga. 1975).
- A U.S. citizen accused of committing a crime in another nation has no due process right under the United States Constitution to a speedy extradition, such that a foreign government's delay of over 17 years in seeking extradition on charges of criminal negligence causing death and leaving the scene of an accident was not constitutionally offensive. Martin v. Warden, Atlanta Pen, 993 F.2d 824 (11th Cir. 1993).
Due process clause does not protect a duly convicted prisoner against transfer to another institution within a state prison system. Atkinson v. Hanberry, 589 F.2d 917 (5th Cir. 1979).
- Absent a right or justifiable expectation created by state law, transfer of a state prisoner to a less desirable institution within the state prison system does not amount to a deprivation of liberty within the meaning of the due process clause, since whatever expectation a prisoner may have in remaining at a particular prison so long as the prisoner behaves is too ephemeral and insubstantial to trigger procedural due process protections, as long as prison officials have discretion to transfer the prisoner for whatever reason or for no reason at all. Atkinson v. Hanberry, 589 F.2d 917 (5th Cir. 1979).
- Whether a pretrial detainee may press a claim of excessive force under the fourth amendment remains open. It is clear, however, that the due process clause protects a pretrial detainee from the use of excessive force that amounts to punishment. Wright v. Whiddon, 951 F.2d 297 (11th Cir. 1992).
Only U.S. Const., amend. 5 limits the federal power of eminent domain. Georgia Power Co. v. 54.20 Acres of Land, 563 F.2d 1178 (5th Cir. 1977), cert. denied, 440 U.S. 907, 99 S. Ct. 1213, 59 L. Ed. 2d 454 (1979), overruled on other grounds, Georgia Power Co. v. Sanders, 617 F.2d 1112 (5th Cir. 1980), cert. denied, 450 U.S. 936, 101 S. Ct. 1403, 67 L. Ed. 2d 372 (1981).
- The right of the sovereign in the property of the citizen is hedged by two fundamental safeguards: the taking must be for a public purpose and it must be attended by just and adequate compensation. This includes every species of property in which the individual has a right of ownership, whether real or personal, corporeal or incorporeal. Weiner v. Fulton County, 113 Ga. App. 343, 148 S.E.2d 143, cert. denied, 385 U.S. 958, 87 S. Ct. 393, 17 L. Ed. 2d 304 (1966).
- The United States Supreme Court has identified three factors that have particular significance in a taking inquiry: (1) the economic impact of the regulation on the claimant; (2) the extent to which the regulation has interfered with distinct investment-backed expectations; and (3) the character of the governmental action. Resolution Trust Corp. v. Ford Motor Credit Corp., 30 F.3d 1384 (11th Cir. 1994).
- It is the character of the invasion, not the amount of damage resulting from it, so long as the damage is substantial, that determines the question whether it is a taking. Cheves v. Whitehead, 1 F. Supp. 321 (S.D. Ga. 1932), rev'd on other grounds, 67 F.2d 316 (5th Cir.), cert. denied, 290 U.S. 704, 54 S. Ct. 371, 78 L. Ed. 605 (1933).
- Congress does not have the constitutional power to authorize a permanent physical occupation of an owner's private property for which the owner need not be compensated, even when the property owner has privately allowed other occupations which are "compatible" with a government-sanctioned invasion. Cable Holdings of Ga., Inc. v. McNeil Real Estate Fund VI, Ltd., 953 F.2d 600 (11th Cir.), cert. denied, 506 U.S. 862, 113 S. Ct. 182, 121 L. Ed. 2d 127 (1992).
- The due process clause mandates provision of a predeprivation notice and hearing even when the seizure of real property is not physically intrusive. United States v. 408 Peyton Rd., 162 F.3d 644 (11th Cir. 1998), cert. denied, 526 U.S. 1089, 119 S. Ct. 1500, 143 L. Ed. 2d 654 (1999).
When the government has failed to provide a predeprivation notice and hearing in connection with the seizure of real property that does not involve physical control, but the property is found to be subject to forfeiture after the process due has been afforded, the proper remedy is that the government should return any rents received or other proceeds realized from the property during the period of illegal seizure. United States v. 408 Peyton Rd., 162 F.3d 644 (11th Cir. 1998), cert. denied, 526 U.S. 1089, 119 S. Ct. 1500, 143 L. Ed. 2d 654 (1999).
Any situation concerning a deprivation must be viewed in context with the goals of the deprivation, the necessity of the deprivation, the onerous nature of the deprivation, or lack thereof, and the overall equities involved. Joyner v. Golden Dome Inv. Co., 7 Bankr. 596 (Bankr. M.D. Ga. 1980).
That a liberty cannot be inhibited without due process does not mean that it can under no circumstances be inhibited, which can be said of a deprivation of property. Joyner v. Golden Dome Inv. Co., 7 Bankr. 596 (Bankr. M.D. Ga. 1980).
- While private property shall not be taken or damaged for public use without just compensation, the taking or damaging referred to must be by some authority empowered by law to do those acts. Before recovery can be had against a county for taking or damaging private property, it must be shown that the proper authorities of the county were responsible for the taking or damaging, or that they ratified it after the property was so taken or damaged. Watkins v. Cobb County Comm'n, 135 Ga. App. 324, 217 S.E.2d 298 (1975).
- To maintain successfully a conspiracy action to take property without just compensation under 42 U.S.C. § 1983, there must have been an actual denial of due process. Where no property is obtained at all, the civil rights conspiracy is not complete. Also, where no property is taken, there is no issue respecting the rights attendant to "pre" or "post" deprivation hearings. Stone Mt. Game Ranch, Inc. v. Hunt, 570 F. Supp. 238 (N.D. Ga. 1983), aff'd, 746 F.2d 761 (11th Cir. 1984).
- Definitionally, the concept of an unconstitutional taking does not turn on which public agency deprived a private party of the use of the party's property, but rather, turns on the fact of deprivation for public use. Fountain v. Metropolitan Atlanta Rapid Transit Auth., 678 F.2d 1038 (11th Cir. 1982).
- Paragraph (e)(2) of O.C.G.A. § 51-12-5.1, requiring that 75 percent of punitive damages awarded in a product liability action be paid into the state treasury, does not constitute a "taking" under the fifth and fourteenth amendments to the United States Constitution. Mack Trucks, Inc. v. Conkle, 263 Ga. 539, 436 S.E.2d 635 (1993); State v. Moseley, 263 Ga. 680, 436 S.E.2d 632 (1993), cert. denied, 511 U.S. 1107, 114 S. Ct. 2101, 128 L. Ed. 2d 663 (1994).
In determining whether procedures used in deprivation of property comport with due process, the court must consider: the private interest affected by the government's action; the risk of an erroneous deprivation of such interest through the procedures used; and, the government's interest, including the function involved and the administrative and fiscal burdens that the additional procedural requirement would entail. Roadway Express, Inc. v. Brock, 624 F. Supp. 197 (N.D. Ga. 1985), modified on other grounds, 481 U.S. 252, 107 S. Ct. 1740, 95 L. Ed. 2d 239 (1987).
As long as the procedure used to take a condemnee's property is in accordance with the law the condemnee has no ground of complaint because another procedure, also authorized by law, was not used. Collins v. Metropolitan Atlanta Rapid Transit Auth., 163 Ga. App. 168, 291 S.E.2d 742 (1982).
§ 1983 action. - So long as the state provides an adequate procedure for obtaining just compensation, the aggrieved landowner may not claim a denial of just compensation until he/she has exhausted the state procedures for compensation. The nature of the constitutional right, therefore, requires that a property owner first utilize procedures under state law for obtaining compensation before he/she can bring a 42 U.S.C. § 1983 action. East-Bibb Twiggs Neighborhood Ass'n v. Macon-Bibb Planning & Zoning Comm'n, 662 F. Supp. 1465 (M.D. Ga. 1987), aff'd, 896 F.2d 1264 (11th Cir. 1989).
Federal district court properly dismissed property owners' due process and taking claims regarding a landfill permit as "not ripe," where the owners had not exhausted the process leading toward "just compensation" because they failed to seek compensation through state law procedures. East-Bibb Twiggs Neighborhood Ass'n v. Macon Bibb Planning & Zoning Comm'n, 896 F.2d 1264 (11th Cir. 1989).
- Where plaintiff failed to file an inverse condemnation claim in the state court and, where the federal court had not ruled on the inverse condemnation claim plaintiff filed therein, plaintiff's Fifth Amendment takings claim was not ripe for adjudication. Speer v. Miller, 864 F. Supp. 1294 (N.D. Ga. 1994).
Landowner's just compensation claims based upon adverse zoning and land use decisions made by county officials were not ripe for review where landowners had not exhausted state procedures in seeking compensation, including the remedy of inverse condemnation. James Emory, Inc. v. Twiggs County, 883 F. Supp. 1546 (M.D. Ga. 1995).
- In an action against a truck manufacturer, a punitive damages award of $2 million was not so excessive as to violate the due process clauses of the Georgia and United States Constitutions, the eighth amendment of the United States Constitution, and the excessive fines clause of the Ga. Const. 1983, Art. I, Sec. I, Para. XVII. Mack Trucks, Inc. v. Conkle, 263 Ga. 539, 436 S.E.2d 635 (1993).
- If official authorities act on behalf of the state so as to take private property for public use without just compensation, even if they are acting outside of the scope of their official powers, they have violated the fifth and fourteenth amendments and are subject to an inverse condemnation suit. Fountain v. Metropolitan Atlanta Rapid Transit Auth., 678 F.2d 1038 (11th Cir. 1982).
Normally, an official taking of private property occurs when a governmental body exercises its eminent domain power in a condemnation proceeding. The state can, however, deprive an individual of the individual's property without instituting formal condemnation proceedings to force the transfer of title, and in those instances the party deprived of the property may bring an inverse condemnation action to compel payment of just compensation for the property seized or impaired. Fountain v. Metropolitan Atlanta Rapid Transit Auth., 678 F.2d 1038 (11th Cir. 1982).
If validity of legislative classification for zoning purposes is fairly debatable, legislative judgment must be allowed to control. DeKalb County v. Chamblee Dunwoody Hotel Partnership, 248 Ga. 186, 281 S.E.2d 525 (1981).
- Proof that developer is simply being deprived of more profitable use of property is not enough to declare zoning unconstitutional. Ohoopee Land Dev. Corp. v. Mayor of Wrightsville, 248 Ga. 96, 281 S.E.2d 529 (1981).
Fact that property currently has no economic return to owners is immaterial in determining constitutionality of zoning. By definition, undeveloped property never offers owners any economic return. But landowners may not decline to develop land in permissible manner and concurrently use fact that land is undeveloped to show that permitted use is unconstitutional. DeKalb County v. Chamblee Dunwoody Hotel Partnership, 248 Ga. 186, 281 S.E.2d 525 (1981).
- Landowner's claim that prospective condemnors deprived the landowner of just compensation when they publicized their interest in the land in an attempt to depress its value failed to state a claim for violation of Fifth Amendment rights. Saffold v. Carter, 739 F. Supp. 1541 (S.D. Ga. 1990).
Contractual right of employer under collective bargaining agreement to discharge an employee for cause constituted a property interest protected by the Fifth Amendment. Brock v. Roadway Express, Inc., 481 U.S. 252, 107 S. Ct. 1740, 95 L. Ed. 2d 239 (1987).
- Although the United States Constitution grants Congress the power to establish bankruptcy laws, U.S. Const., art. I, sec. VIII, cl. 4, that power is subject to the Fifth Amendment, which proscribes taking private property for public use without just compensation. GMAC v. Johnson, 145 Bankr. 108 (Bankr. S.D. Ga. 1992), rev'd on other grounds, 165 Bankr. 524 (S.D. Ga. 1994).
Security interests are property rights within the protection of the Fifth Amendment, Armstrong v. United States, 364 U.S. 40, 80 S. Ct. 1563, 4 L. Ed. 2d 1554 (1960), and the bankruptcy system is a "public use" within the ambit of the Fifth Amendment. GMAC v. Johnson, 145 Bankr. 108 (Bankr. S.D. Ga. 1992), rev'd on other grounds, 165 Bankr. 524 (S.D. Ga. 1994).
Valuation of secured creditor's collateral as of the date of confirmation rather than as of the date of the bankruptcy petition did not constitute an unconstitutional taking caused by depreciation of the secured creditor's collateral since the creditor is entitled to a priority expense claim, a "superpriority" payable ahead of all other administrative expense claims to the extent of the failure of adequate protection. GMAC v. Johnson, 145 Bankr. 108 (Bankr. S.D. Ga. 1992), rev'd on other grounds, 165 Bankr. 524 (S.D. Ga. 1994).
- Since 11 U.S.C. § 101 et seq. does not contemplate the taking of an interest for use by the public, it does not fit within the final clause of U.S. Const., amend. 5 prohibiting the taking of private property for public use without just compensation. Joyner v. Golden Dome Inv. Co., 7 Bankr. 596 (Bankr. M.D. Ga. 1980).
The impairment or modification of contract rights under the bankruptcy power granted under U.S. Const., art. I, sec. VIII, cl. 4 is not prohibited by U.S. Const., amend. 5. In re Bullington, 80 Bankr. 590 (Bankr. M.D. Ga. 1987), aff'd, 89 Bankr. 1010 (M.D. Ga. 1988), 878 F.2d 354 (11th Cir. 1989).
The application of 11 U.S.C. § 522(f), as to avoidance of liens impairing exempt property, to debtor's contract with creditor is not an unconstitutional taking of property violative of the Fifth Amendment. Caruthers v. Fleet Fin., Inc., 87 Bankr. 723 (Bankr. N.D. Ga. 1988).
Although the Supreme Court has indicated that 11 U.S.C. § 522(f)(2) may not be applied retroactively to destroy property rights that existed before the Bankruptcy Code was enacted, § 522 may be applied to a security interest on a loan made prior to the enactment of the Bankruptcy Code if a new security interest is created by a novation after the enactment date. South Atl. Prod. Credit Ass'n v. Jones, 87 Bankr. 738 (Bankr. M.D. Ga. 1988).
Chapter 12 of the Bankruptcy Code (11 U.S.C. § 1201 et seq.), designed specifically for farmers and intended to meet a perceived crisis in the agricultural community, does not, on its face, violate the taking and due process clauses of the Fifth Amendment and, therefore, does not exceed the bankruptcy powers of Congress. Travelers Ins. Co. v. Bullington, 89 Bankr. 1010 (M.D. Ga. 1988), aff'd, 878 F.2d 354 (11th Cir. 1989).
Chapter 12 of the federal bankruptcy code, which was enacted to provide special relief for family farmers, does not operate as an unconstitutional taking of a secured creditor's property. Travelers Ins. Co. v. Bullington, 878 F.2d 354 (11th Cir. 1989).
- The takings clause of the Fifth Amendment protects the secured creditor only to the extent of the value of the collateral. Travelers Ins. Co. v. Bullington, 878 F.2d 354 (11th Cir. 1989).
- Under the fifth provision of U.S. Const., amend. 5, "nor shall private property be taken for public use, without just compensation;" one may give one's property for public use and waive the provision. Barkman v. Sanford, 162 F.2d 592 (5th Cir.), cert. denied, 332 U.S. 816, 68 S. Ct. 155, 92 L. Ed. 393 (1947).
- In order to show a violation of the procedural aspect of U.S. Const., amend. 5, the defendant must establish that its property interest has been invaded by the government without a meaningful opportunity for it to voice its objection or show the invalidity of the justification of the invasion. Joyner v. Golden Dome Inv. Co., 7 Bankr. 596 (Bankr. M.D. Ga. 1980).
Delay in the judicial determination of property rights is not uncommon where it is essential that governmental needs be immediately satisfied. Bowles v. Willingham, 321 U.S. 503, 64 S. Ct. 641, 88 L. Ed. 892 (1944).
- Where a public utility has followed all administrative procedures to obtain a rate increase, and a final order is entered against the utility for which no appeal is provided, and where the case, filed in superior court as de novo proceedings, raises the constitutional question of confiscation, the trial court is authorized to consider all evidence bearing on the question. Georgia Pub. Serv. Comm'n v. General Tel. Co., 227 Ga. 727, 182 S.E.2d 793 (1971).
- Property owners' due process and taking claims were properly dismissed, where the owners had not sought compensation through the procedures the state has provided for doing so. The Fifth Amendment does not proscribe the taking of property; it proscribes taking without just compensation. East-Bibb Twiggs Neighborhood Ass'n v. Macon Bibb Planning & Zoning Comm'n, 896 F.2d 1264 (11th Cir. 1989).
- A Fifth Amendment claim for just compensation is not ripe until the plaintiff has sought compensation through available state law channels. Saffold v. Carter, 739 F. Supp. 1541 (S.D. Ga. 1990).
Since, when a tort recovery was obtained by recipients of Medicaid benefits, the assignment in favor of the health department had already been made, the property of the recipient to that extent was not "taken" for purposes of the Fifth Amendment. Richards v. Ga. Dep't of Cmty. Health, 278 Ga. 757, 604 S.E.2d 815 (2004).
- The Fifth Amendment generally prohibits the deprivation of property without a prior hearing, but one exception to the need for a prior hearing exists when the government seizes items subject to forfeiture. United States v. Bissell, 866 F.2d 1343 (11th Cir.), cert. denied, 493 U.S. 849, 110 S. Ct. 146, 107 L. Ed. 2d 104, 493 U.S. 876, 110 S. Ct. 213, 107 L. Ed. 2d 166 (1989).
Delay of a post-restraint hearing in a criminal forfeiture case until trial was reasonable, where probable cause determinations provided a significant check on the government's power to restrain legitimate, nonindicted assets. United States v. Bissell, 866 F.2d 1343 (11th Cir.), cert. denied, 493 U.S. 849, 110 S. Ct. 146, 107 L. Ed. 2d 104, 493 U.S. 876, 110 S. Ct. 213, 107 L. Ed. 2d 166 (1989).
- The 1987 amendments to the federal Higher Education Act of 1965, which required the transfer of excess reserves held by guarantors participating in the guaranteed student loan program to the United States Department of Education, did not amount to a "taking" of a state-created guaranty agency's contractual rights nor violate the equal protection component of the fourteenth amendment. Georgia Student Fin. Comm'n v. Cavazos, 741 F. Supp. 899 (N.D. Ga. 1990).
- O.C.G.A. § 21-5-30.1(b) does not work an unconstitutional privation of property where regulated insurer could disseminate information for nonpolitical purposes and its employees could contribute freely in their own private, individual capacities. Gwinn v. State Ethics Comm'n, 262 Ga. 855, 426 S.E.2d 890 (1993).
- Power company was properly granted declaratory relief and an injunction was properly granted against the property owners who would not permit the power company access to their land to conduct surveys for a planned electrical transmission line because the power company, as the condemning body, had the right to survey and the property owners' express refusal to allow access presented an actual risk of a breach of the peace that was alleviated by the entry of the declaratory judgment. Bearden v. Ga. Power Co., 262 Ga. App. 550, 586 S.E.2d 10 (2003).
Inconvenience or damage suffered must become extensive or oppressive before a taking, compensable under U.S. Const., amend. 5, will be found. Scarlett v. City of Atlanta, 306 F. Supp. 1049 (N.D. Ga. 1969).
- A liberty interest within the meaning of the Fifth Amendment can be lost when one's "good name, reputation, honor, and community standing" are falsely attacked. Painter v. FBI, 537 F. Supp. 232 (N.D. Ga.), aff'd, 694 F.2d 255 (11th Cir. 1982).
Assertion by plaintiff that "mere firing" has damaged the plaintiff's reputation and has foreclosed employment opportunities is not sufficient to establish a liberty interest triggering the requirements of due process. Painter v. FBI, 537 F. Supp. 232 (N.D. Ga.), aff'd, 694 F.2d 255 (11th Cir. 1982).
- Acquisition of title is not essential to taking, nor is total destruction of value essential. Impairment of value is sufficient. Cheves v. Whitehead, 1 F. Supp. 321 (S.D. Ga. 1932), rev'd on other grounds, 67 F.2d 316 (5th Cir.), cert. denied, 290 U.S. 704, 54 S. Ct. 371, 78 L. Ed. 605 (1933).
Denial of future profits does not amount to the permanent appropriation of a lessee's assets for the government's use. Resolution Trust Corp. v. Ford Motor Credit Corp., 30 F.3d 1384 (11th Cir. 1994).
- Where, after the Resolution Trust Corporation's repudiation of failed bank's equipment lease, lessee's leased property was returned to lessee the repudiation of the lease deprived lessee only of its future rents, any economic impact on lessee of limiting damages to accrued rent would not be of the nature protected by the takings clause. Resolution Trust Corp. v. Ford Motor Credit Corp., 30 F.3d 1384 (11th Cir. 1994).
- Where lessee could not reasonably have formed an expectation that it would be entitled to all future rent payments contemplated under the leases regardless of the fortunes of the lessor bank, which ultimately failed, no reasonable investment-backed expectation was affected by the Resolution Trust Corporation's repudiation of the leases upon taking over the bank. Resolution Trust Corp. v. Ford Motor Credit Corp., 30 F.3d 1384 (11th Cir. 1994).
Subsequent loss in property value may be an essential factor in determination of a taking. Scarlett v. City of Atlanta, 306 F. Supp. 1049 (N.D. Ga. 1969).
- In an action in which a taking by interference is asserted, the issue for decision is whether or not the interference with plaintiff's property is so substantial as to be a taking, and thus compensable under U.S. Const., amend. 5, or of such a lesser character as to make the interference only a consequential damage. Scarlett v. City of Atlanta, 306 F. Supp. 1049 (N.D. Ga. 1969).
In an action in which a taking by interference is asserted, a court will look to the evidence to see the extent of the interference, and if it is so great as to constitute a wholly unreasonable and substantially destructive interference with the property involved, a taking will be found. Scarlett v. City of Atlanta, 306 F. Supp. 1049 (N.D. Ga. 1969).
- Reconstruction of a highway which reduced visibility of landowner's billboard to traffic did not constitute an unconstitutional taking of property because the impairment was shared by the public in general and was not compensable. Moreton Rolleston, Jr. Living Trust v. DOT, 242 Ga. App. 835, 531 S.E.2d 719 (2000).
Trial court properly granted summary judgment to a city in a property owner's inverse condemnation claim under U.S. Const., amend. V, arising from the city's requirement that an outstanding bill for water service on the property be paid prior to providing further water service as the city did not force the owner to bear a public burden which should have been borne by the public as a whole. Solid Equities, Inc. v. City of Atlanta, 308 Ga. App. 895, 710 S.E.2d 165 (2011).
Destruction or loss of a business being operated upon the condemned property requires compensation where the land is shown to be unique. Hinson v. DOT, 135 Ga. App. 258, 217 S.E.2d 606 (1975).
Whether the land is unique and requires compensation under U.S. Const., amend. 5 is a jury question. Hinson v. DOT, 135 Ga. App. 258, 217 S.E.2d 606 (1975).
Condemnor taking a right of flowage acquires only an easement in the land flowed. Cheves v. Whitehead, 1 F. Supp. 321 (S.D. Ga. 1932), rev'd on other grounds, 67 F.2d 316 (5th Cir.), cert. denied, 290 U.S. 704, 54 S. Ct. 371, 78 L. Ed. 605 (1933).
Exercise of federal regulatory authority over lands below ordinary high water mark is not an invasion of compensable property rights, since the flow of a navigable stream is in no sense private property. Thus, there is "no taking" in such a case. United States v. Lewis, 355 F. Supp. 1132 (S.D. Ga. 1973).
Low altitude flights, under certain circumstances, may constitute a taking. Scarlett v. City of Atlanta, 306 F. Supp. 1049 (N.D. Ga. 1969).
The interference by low altitude flights with the use and enjoyment of the land must be direct, immediate, and substantial, not merely consequential, and this is a matter of degree. Scarlett v. City of Atlanta, 306 F. Supp. 1049 (N.D. Ga. 1969).
No property right that could be accorded protection under U.S. Const., amend. 5 exists in the maintenance of a certain school in a certain location. The location of public schools is a matter in which no citizen has a personal right any more than the citizen would in the location of any other public facility. Wallis v. Blue, 263 F. Supp. 965 (N.D. Ga. 1967).
Operation of a laundry and dry-cleaning service at reduced prices in an educational institution for the benefit of students and persons connected with the school, by the Board of Regents of the University System, does not constitute the taking, by the state, of private property without due process of law, in violation of Ga. Const. 1945, Art. I, Sec. I, Para. I (see Ga. Const. 1983, Art. I, Sec. II, Para. I) and U.S. Const., amend. 5. Villyard v. Regents of Univ. Sys., 204 Ga. 517, 50 S.E.2d 313 (1948).
Retroactive application of a federal statute that applied only to the Federal Deposit Insurance Corporation in its corporate capacity, and that was amended in 1989 to extend its applicability to "a receiver of any insured depository institution," did not constitute a taking prohibited by the Fifth Amendment, since the statute promotes the common good and the owner failed to safeguard the owner's interests. Muller v. Resolution Trust Corp., 148 Bankr. 650 (S.D. Ga. 1992), aff'd, 7 F.3d 241 (11th Cir. 1993).
Outdoor Advertising Control Act is a proper exercise of the police powers, as it provides for compensation for property rights in signs which were lawfully in existence on its effective date. DOT v. Shiflett, 251 Ga. 873, 310 S.E.2d 509 (1984).
- The issuance of a building permit by the county for land it either knew or should have known would not support a septic system may have given rise to an action under state law, but was not a "taking" under the Fifth Amendment, nor was it such an abuse of governmental power sufficient to raise the tort alleged to the stature of a substantive due process violation. Since the county could have been sued for this type of injury, a claim of denial of procedural due process was foreclosed. Rymer v. Douglas County, 764 F.2d 796 (11th Cir. 1985).
- Landowners' takings claims, which turned on their allegation that their property was diminished in value by the Department of Natural Resource's issuance of a license to their neighbors to build a private dock, failed because such a license was not a taking of the owners' property by the state for public use: the license was granted to a private party for the lawful construction of a private dock. Hitch v. Vasarhelyi, 302 Ga. App. 381, 691 S.E.2d 286 (2010).
- That Congress allows a court to prevent a creditor from taking advantage of a provision in a note allowing acceleration upon default does not create a "taking" within the meaning of the Fifth Amendment where, by a cure and reinstatement, the parties are returned to their original, predefault status and the provision remains part of the contract. In re Rainbow Forest Apts., 33 Bankr. 576 (Bankr. N.D. Ga. 1983).
- The state began proceedings to condemn certain property, pursuant to the provisions of the Georgia Racketeer Influenced and Corrupt Organizations (RICO) Act (O.C.G.A. § 16-14-7), but subsequently filed a release of its RICO lien. There was no cognizable claim under the theory that private property was taken or damaged for public purposes without just and adequate compensation being first paid. The state did not apply any of the property to public use during the period it was in the state's possession and, even assuming arguendo that the seizure resulted in a violation of state and/or federal constitutional rights, there was no basis upon which the state itself, as opposed to its officers, could be held liable for monetary damages on the basis of it. Kelleher v. State, 187 Ga. App. 64, 369 S.E.2d 341 (1988).
- The recent Supreme Court case of First Evangelical Lutheran Church v. County of Los Angeles, 482 U.S. 304, 107 S. Ct. 2378, 96 L. Ed. 2d 250 (1987), requires that the state recognize an inverse condemnation claim for money damages because a zoning regulation amounts to a taking First English Evangelical Lutheran Church v. County of Los Angeles, 482 U.S. 304, 107 S. Ct. 2378, 96 L. Ed. 2d 250 (1987). East-Bibb Twiggs Neighborhood Ass'n v. Macon-Bibb Planning & Zoning Comm'n, 662 F. Supp. 1465 (M.D. Ga. 1987), aff'd, 896 F.2d 1264 (11th Cir. 1989).
- Since property owner was not deprived of all use of property, the property owner did not suffer a compensable temporary taking under the Fifth Amendment to the United States Constitution. Powell v. City of Snellville, 275 Ga. 207, 563 S.E.2d 860 (2002).
- For the taking of property to come within U.S. Const., amend. 5, it must be the direct or indirect result of an actual appropriation of tangible property by the government for public use, in some way depriving the owner of a monetizable interest in the property. Joyner v. Golden Dome Inv. Co., 7 Bankr. 596 (Bankr. M.D. Ga. 1980).
- If less than the whole has been taken and paid for, such a right or interest will be deemed to pass as is necessary fairly to effectuate the purpose of the taking. Cheves v. Whitehead, 1 F. Supp. 321 (S.D. Ga. 1932), rev'd on other grounds, 67 F.2d 316 (5th Cir.), cert. denied, 290 U.S. 704, 54 S. Ct. 371, 78 L. Ed. 605 (1933).
Where the interest to be taken is not expressly stated, the condemnor is presumed to take no greater interest than an easement, where an easement is sufficient to satisfy the purposes of the taking. Cheves v. Whitehead, 1 F. Supp. 321 (S.D. Ga. 1932), rev'd on other grounds, 67 F.2d 316 (5th Cir.), cert. denied, 290 U.S. 704, 54 S. Ct. 371, 78 L. Ed. 605 (1933).
- The application of the Negotiated Rates Act of 1993, Pub.L. 103-180, does not take a property right of a trucking company in violation of the due process clause of U.S. Const., amend. 5. Unlike the case in which a regulation reduces the utility of property to such an extent that it is rendered valueless, the repeal of a regulation that imposed an artificial value does not violate this regulation. Allen v. National Enquirer, Inc. (In re TSC Express Co.), 187 Bankr. 29 (Bankr. N.D. Ga. 1995).
Regulatory taking of property without just compensation was not shown since the development associations, who made a facial challenge to the tree ordinance, failed to show that they were deprived of all economically viable use of their land. Greater Atlanta Homebuilders Ass'n v. DeKalb County, 277 Ga. 295, 588 S.E.2d 694 (2003).
- The just compensation provision is susceptible to no construction except that the condemnee is entitled to be compensated for all damages to the condemnee's property and expense caused by the condemnation proceedings. Such damages and expenses are separate and distinct items from the amount which the condemnee was entitled to recover as the actual value of the condemnee's building. Luther v. DeKalb County, 131 Ga. App. 25, 205 S.E.2d 70 (1974).
- Condemnee may not introduce evidence of expected damage to its business as part of its claim for consequential damages. Richmond County v. 0.153 Acres of Land, 208 Ga. App. 208, 430 S.E.2d 47 (1993).
- A lessee-operator of a business upon the condemned property may be entitled to an award for partial loss of business, separate from the award to the owner for consequential damage to the real property. Richmond County v. 0.153 Acres of Land, 208 Ga. App. 208, 430 S.E.2d 47 (1993).
- When private property is condemned for public use, the owner is entitled to receive just and adequate compensation as of the date of the taking, not as of the date of the announcement of the taking, and the value of the property should be fixed at the time of its taking. R.E. Adams Properties, Inc. v. City of Gainesville, 125 Ga. App. 800, 189 S.E.2d 114 (1972).
A jury is not free to determine on the evidence that some date prior to the initiation of condemnation proceedings, but after the announcement of the intent to condemn, is the date of taking for the purposes of just and adequate compensation. R.E. Adams Properties, Inc. v. City of Gainesville, 125 Ga. App. 800, 189 S.E.2d 114 (1972).
- If the property must be duplicated for the business to survive, and if there is no substantially comparable property within the area, then the loss of the forced seller is such that market value does not represent just and adequate compensation to him. Hinson v. DOT, 135 Ga. App. 258, 217 S.E.2d 606 (1975).
- Under the mandate of the Constitution, that private property cannot be taken or damaged for public use without first paying just and adequate compensation to the owner, the payment of the amount of a jury verdict in excess of the prior appraisal by assessors, or special master, is a condition precedent to a valid appeal from such verdict and the judgment based thereon. City of Gainesville v. Loggins, 224 Ga. 114, 160 S.E.2d 374 (1968).
Constitutional considerations which hedge in government's right of eminent domain do not apply to police power, and the citizen whose property is taken or destroyed is helpless before it. However, the authorization of government by its police power to take the property of its citizens without compensation can be invoked only in the face of compelling necessity, and it extends no further than the emergency which creates it. Horne v. City of Cordele, 140 Ga. App. 127, 230 S.E.2d 333 (1976).
- Laws enacted in pursuance of police power to benefit the health of the public, which may result in the destruction of private property, and which do not provide for any payment therefor to the owner, are not violative of the constitutional inhibition against taking private property for a public use without compensation. Irvin v. Woodliff, 125 Ga. App. 214, 186 S.E.2d 792 (1971).
Uncompensated destruction of property which exceeds the immediate necessity of the occasion is an unconstitutional exercise of police power. Horne v. City of Cordele, 140 Ga. App. 127, 230 S.E.2d 333 (1976).
- An ordinance that permits destruction of property within the boundaries of the municipality, without just compensation to the owner and without giving the owner an opportunity to repair it and thus bring it up to minimum standards, merely on the ground that its dilapidation makes it a health or safety hazard, is unconstitutional and void. Horne v. City of Cordele, 140 Ga. App. 127, 230 S.E.2d 333 (1976).
- Any ordinance which authorizes demolition of a structure within the city without compensation to the owner merely because the cost of repair exceeds the value of the structure or any percentage thereof, without first allowing opportunity to repair (and, if necessary, providing for discovery of the criteria which must be met to bring the structure up to a minimum standard) is unconstitutional and void. Horne v. City of Cordele, 140 Ga. App. 127, 230 S.E.2d 333 (1976).
Zoning is subject to the constitutional prohibition against taking private property without just compensation. Barrett v. Hamby, 235 Ga. 262, 219 S.E.2d 399 (1975).
It suffices to void the zoning that the damage to the owner is significant and is not justified by the benefit to the public. Barrett v. Hamby, 235 Ga. 262, 219 S.E.2d 399 (1975).
It is not necessary that the property be totally useless for the purposes classified in order for unlawful confiscation to occur, requiring that the zoning be voided. Barrett v. Hamby, 235 Ga. 262, 219 S.E.2d 399 (1975).
- As the individual's right to the unfettered use of one's property confronts the police power under which zoning is done, the balance the law strikes is that a zoning classification may only be justified if it bears a substantial relation to the public health, safety, morality or general welfare. Lacking such justification, the zoning may be set aside as arbitrary or unreasonable. As these critical interests are balanced, if the zoning regulation results in relatively little gain or benefit to the public while inflicting serious injury or loss on the owner, such regulation is confiscatory and void. Barrett v. Hamby, 235 Ga. 262, 219 S.E.2d 399 (1975).
- The police power of the state to zone property to prevent its use for certain purposes in the future, as distinguished from the taking or damaging in respect to a use already in existence, is not open to question, and does not require the payment of any compensation. National Adv. Co. v. State Hwy. Dep't, 230 Ga. 119, 195 S.E.2d 895 (1973).
Denial of an application to rezone a lot from residential use to commercial use is not an unconstitutional taking of property. Westbrook v. Board of Adjustment, 245 Ga. 15, 262 S.E.2d 785 (1980).
A county board's refusal to rezone property from residential to commercial use did not constitute a taking, where the plaintiff had no legitimate expectation that the property would be rezoned for office development as sought. Habersham at Northridge v. Fulton County, 632 F. Supp. 815 (N.D. Ga. 1985), aff'd, 791 F.2d 170 (11th Cir.), cert. dismissed, 478 U.S. 1044, 107 S. Ct. 17, 92 L. Ed. 2d 783 (1986).
Where landowner's property had been rezoned, the landowner did not suffer a taking that deprived the landowner of all use of the property when the board of commissioners refused to grant the landowner's application for rezoning, and the taking was not compensable. The landowner still had possession and use of the land where the landowner could have built in accordance with the existing zoning or applied for a different type of zoning. Cobb County v. McColister, 261 Ga. 876, 413 S.E.2d 441 (1992).
- A zoning ordinance does not exceed the police power simply because it restricts the use of property, diminishes the value of property, or imposes costs in connection with the property. Parking Ass'n v. City of Atlanta, 264 Ga. 764, 450 S.E.2d 200 (1994), cert. denied, 515 U.S. 1116, 115 S. Ct. 2268, 132 L. Ed. 2d 273 (1995).
A zoning ordinance requiring curbs, landscaping, and trees in surface parking lots did not constitute a per se taking by another, but merely regulated the use of the property. Parking Ass'n v. City of Atlanta, 264 Ga. 764, 450 S.E.2d 200 (1994), cert. denied, 515 U.S. 1116, 115 S. Ct. 2268, 132 L. Ed. 2d 273 (1995).
- When a landowner alleged having a vested right in the manner in which the owner's property had been zoned, which would have allowed the owner to build the owner's proposed project, the owner was obligated to bring that claim before the local zoning authority before a trial court had jurisdiction to consider it. Since the owner had not brought that claim before the zoning authority, the owner's petition for a writ of mandamus to compel that authority to issue the owner the permit desired was properly dismissed. Cooper v. Unified Gov't of Athens-Clarke County, 277 Ga. 360, 589 S.E.2d 105 (2003).
- The plaintiff has the burden of showing that the zoning under attack is so detrimental to the plaintiff, and so insubstantially related to the public health, safety, morality and welfare, as to amount to an unconstitutional taking, that is, an arbitrary confiscation of the property without compensation by the governing authority. Hubert Realty Co. v. Cobb County Bd. of Comm'rs, 245 Ga. 236, 264 S.E.2d 179 (1980); City of Atlanta Bd. of Zoning Adjustment v. Midtown N., Ltd., 257 Ga. 496, 360 S.E.2d 569 (1987); Jones v. City of Atlanta, 257 Ga. 727, 363 S.E.2d 254 (1988).
- A claim that a zoning regulation effects a taking of property is not ripe until the government entity charged with implementing the regulation has reached a final decision regarding the application of the regulation to the property at issue. Calibre Spring Hill, Ltd. v. Cobb County, 715 F. Supp. 1577 (N.D. Ga. 1989).
- Requiring applicants for driver's license or identification card to submit fingerprints does not violate constitutional rights. 1997 Op. Att'y Gen. No. U97-7.
- An accused arrested for separate non-included offenses arising out of a single transaction, which violate municipal ordinances and state law respectively, may be prosecuted first in the recorder's court for the municipal ordinance violations, and then transferred to the superior court to be prosecuted for the separate state violations, without violating statutory or constitutional double jeopardy prohibitions. 1986 Op. Att'y Gen. No. U86-32.
- Depreciation of property by the erection of a hospital by a municipality as a "taking" or "damaging" within the constitutional provision, 4 A.L.R. 1012.
Occurrences during a view as warranting the jury's discharge without letting in plea of former jeopardy upon subsequent trial, 4 A.L.R. 1266.
Constitutionality and applicability of curative provisions of taxing statutes where sale is irregular, 5 A.L.R. 164.
Constitutionality of statute or ordinance providing for destruction of animals, 8 A.L.R. 67.
Constitutionality of statute requiring railroad to construct and maintain private crossing, 12 A.L.R. 227.
Plea of former jeopardy or of former conviction or acquittal where jury was not sworn, 12 A.L.R. 1006.
Right to recover property held by public authorities as evidence for use in a criminal trial, 13 A.L.R. 1168.
Constitutional immunity against giving incriminating testimony as affecting contractual stipulation to submit to examination, 18 A.L.R. 749.
Conviction or acquittal of larceny as bar to prosecution for burglary, 19 A.L.R. 626.
Pendency in one county of charge of larceny as bar to subsequent charge in another county of offense which involves both felonious breaking and felonious taking of same property, 19 A.L.R. 636.
Exercise of eminent domain to control the use or improvement of property not taken, 23 A.L.R. 876.
Constitutionality of statute for cumulative penalty for delay in paying claim, 26 A.L.R. 1200.
Constitutionality of statute regulating the time of payment of wages, 26 A.L.R. 1396.
Substitution of juror after completion of panel as sustaining plea of double jeopardy, 28 A.L.R. 849; 33 A.L.R. 142.
Right to interest in condemnation proceedings during owner's retention of possession, 32 A.L.R. 98.
Constitutionality of statutes relating to insurance contracts made and to be performed out of state, upon property or life within state, 32 A.L.R. 636.
Substitution of juror after completion of panel as sustaining plea of former jeopardy, 33 A.L.R. 142.
Forgery of names of several individuals to the same instrument as more than one offense, 33 A.L.R. 562.
Damage to property from proximity of cemetery as "damage" within constitutional provision against taking or damaging property without compensation, 36 A.L.R. 527.
Inclusion in assessment for public improvement of amount to cover delinquencies as contrary to constitutional guaranties, 40 A.L.R. 1352; 42 A.L.R. 1185.
Plea of privilege by the woman concerned in violation of White Slave Act, 48 A.L.R. 991.
Constitutionality of statutes or ordinances making one fact presumptive or prima facie evidence of another, 51 A.L.R. 1139; 86 A.L.R. 179; 162 A.L.R. 495.
Power to impose tax on estate in respect to property transferred in contemplation of death or by a conveyance intended to take effect in possession or enjoyment at death, 52 A.L.R. 1091.
Validity of statute or ordinance in relation to doors, 53 A.L.R. 920.
Constitutionality of provisions of workmen's compensation law applicable to public officers or employees, 53 A.L.R. 1290.
Constitutionality of statute fixing minimum rate of speed at which carrier may transport special kinds of freight, 55 A.L.R. 1296.
Necessity that hearing be allowed before imposition of punishment for contempt, 57 A.L.R. 545.
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.
Extraterritorial effect of confiscation of property and nationalization of corporations, 65 A.L.R. 1494; 139 A.L.R. 1209.
Admissibility of secondary evidence of incriminating document in possession of defendant, 67 A.L.R. 77.
Right to and measure of compensation for animals or trees destroyed to prevent spread of disease or infection, 67 A.L.R. 208.
Tax on automobile, or on its use, for cost of road or street construction, improvement, or maintenance, 68 A.L.R. 200.
Constitutionality of statute which permits consideration of enhanced value of lands not taken, in fixing compensation for property taken or damaged in exercise of eminent domain, 68 A.L.R. 784.
What amounts to violation of statute forbidding comment by prosecuting attorney on failure of accused to testify, 68 A.L.R. 1108.
Constitutional provision against self-incrimination as applicable to questions asked or testimony given in proceeding before nonjudicial officer or body, 68 A.L.R. 1503.
Constitutionality of provisions as to tribunal which shall fix the amount of compensation for taking of property in eminent domain, otherwise than objections that a trial by jury is necessary, 74 A.L.R. 569.
Plea of double jeopardy where jury was discharged because of inability of the prosecution to present testimony, 74 A.L.R. 803.
Constitutionality, construction, and applicability of statutes relating to service of process on unincorporated association, 79 A.L.R. 305.
Rights and responsibilities, civil or criminal, of police officers in respect of examination of persons under arrest ("third degree"), 79 A.L.R. 457.
Necessity in indictment charging violation of statute regarding wages, or hours, of naming particular employees, 81 A.L.R. 76.
Conviction or acquittal under charge of assault with intent to rob as bar to prosecution for assault with intent to kill based on the same transaction or on closely connected transactions, 81 A.L.R. 701.
Power to condemn, or authorize the condemnation of, capital stock of a public utility, 81 A.L.R. 1071.
Constitutionality and construction of statute enhancing penalty for second or subsequent offense, 82 A.L.R. 345; 116 A.L.R. 209; 132 A.L.R. 91; 139 A.L.R. 673.
Constitutionality of statute relating to taxation of state banks or stock therein as affected by inapplicability of statute to national banks or national bank stock, 82 A.L.R. 874; 83 A.L.R. 1441.
Privilege against self-incrimination as extending to danger of prosecution in another jurisdiction, 82 A.L.R. 1380.
Constitutionality, construction, and effect of statute relating specifically to rights, remedies, and obligations of parties to sale of farm machinery, 87 A.L.R. 290.
Constitutionality, construction, application, and effect of statute requiring judicial approval before issuance or sale of municipal or county bonds or obligations, 87 A.L.R. 706; 102 A.L.R. 90.
Waiver of immunity from testifying and constitutional provision against self-incrimination, by accomplice testifying for prosecution, 87 A.L.R. 882.
Comment by court suggesting that jury may take into consideration failure of accused person to testify, 94 A.L.R. 701.
Discharge on habeas corpus after conviction as affecting claim or plea of former jeopardy, 97 A.L.R. 160.
Constitutionality of statute changing rights of withdrawing members of building and loan association, 98 A.L.R. 82; 133 A.L.R. 1493.
Constitutionality of statutes providing for refund of taxes illegally or erroneously exacted, 98 A.L.R. 284.
Constitutionality of statutes and validity of regulations relating to optometry, 98 A.L.R. 905; 22 A.L.R.2d 939.
Validity of statute or ordinance regulating barbers, 98 A.L.R. 1088.
Power to remove public officer without notice and hearing, 99 A.L.R. 336.
Power of state to extend its taxing power by its definition of residence or its declared policy of domesticating foreign corporations, 100 A.L.R. 1216.
Burden of proof as to outlawry by limitation or otherwise of criminal prosecution when relied upon to defeat claim of privilege against self-incrimination, 101 A.L.R. 389.
Constitutionality, construction, and effect of statutes in relation to conduct of driver of automobile after happening of accident, 101 A.L.R. 911.
Effect of unauthorized amendment of criminal information or indictment, 101 A.L.R. 1254.
Calling upon accused in the presence of jury to produce document in his possession as violation of privilege against self-incrimination, 110 A.L.R. 101.
Validity of license statute or ordinance which discriminates against nonresidents, 112 A.L.R. 63.
Identity, as regards former jeopardy, of offenses charged in different indictments or informations for conspiracy, 112 A.L.R. 983.
Conviction or acquittal upon charge of murder of, or assault upon, one person as bar to prosecution for like offenses against other person at the same time, 113 A.L.R. 222.
Constitutionality of statute permitting appeal by state in criminal case, 113 A.L.R. 636; 157 A.L.R. 1065.
Constitutionality of crop insurance statutes, 113 A.L.R. 739.
Constitutionality of statutory provisions relating to current taxes on tax delinquent property, 113 A.L.R. 1092.
Plea of former jeopardy as affected by declaration of mistrial after impaneling and swearing of jury on original trial because of errors, or supposed errors, regarding examination or challenging of jurors, 113 A.L.R. 1428.
Admissibility of inculpatory statements made in presence of accused and not denied or contradicted by him, 115 A.L.R. 1510.
Constitutionality and construction of statute enhancing penalty for second or subsequent offense, 116 A.L.R. 209; 132 A.L.R. 91; 139 A.L.R. 673.
Former jeopardy as regards successive prosecutions for perjury charged to have been committed in the same action or proceeding, 120 A.L.R. 1171.
Taxation in same state of real property and debt secured by mortgage or other lien thereon as double taxation, 122 A.L.R. 742.
Plea of former jeopardy where jury is discharged because of illness or insanity of juror, 125 A.L.R. 694.
Obstruction or diversion of, or other interference with, flow of surface water as taking or damaging property within constitutional provision against taking or damaging without compensation, 128 A.L.R. 1195.
Constitutionality, construction, and application of statutes or governmental projects for improvement of housing conditions (slum clearance), 130 A.L.R. 1069; 172 A.L.R. 966.
Constitutionality, construction and application of statute authorizing condemnation of property by cross action, 130 A.L.R. 1226.
Substituted service, service by publication, or service out of state in action in personam against resident or domestic corporation, as contrary due to process of law, 132 A.L.R. 1361.
Constitutionality, construction, and application of statutes designed to prevent or limit control of retail liquor dealers by manufacturers, wholesalers, or importers, 136 A.L.R. 1238.
Right of privacy, 138 A.L.R. 22; 57 A.L.R.3d 16.
Extraterritorial effect of confiscation of property and nationalization of corporations, 139 A.L.R. 1209.
Disclosure by witness of fact or transaction as waiver of his privilege against self-incrimination in respect of details and particulars which will elucidate it, 147 A.L.R. 255.
Constitutionality of provisions of workmen's compensation acts which are limited to residents of state, 147 A.L.R. 925.
Power of juvenile court to require children to testify, 151 A.L.R. 1229.
Retrospective statute subjecting interests of trust beneficiaries to claims of creditors, 151 A.L.R. 1417.
Privilege against self-incrimination as available to member or officer of unincorporated association as regards its books or papers, 152 A.L.R. 1208.
Validity of provision of statute or ordinance that requires vacation of premises which do not comply with building or sanitary regulations, upon notice to that effect, without judicial proceeding, 153 A.L.R. 849.
Constitutionality, construction, and application of statute or contract regarding deduction from, or adjustment of, wages in respect of defective workmanship, 153 A.L.R. 866.
Testimony of incriminating character which witness was compelled to give, by virtue of immunity statute or otherwise, a admissible in a prosecution of the witness for an offense subsequently committed, 157 A.L.R. 428.
Double jeopardy where jury is discharged before termination of trial because of illness of accused, 159 A.L.R. 750.
Competency of juror as affected by his participation in a case of similar character, but not involving the party making the objection, 160 A.L.R. 753.
Right to cross-examine accused as to previous prosecution for, or conviction of, crime, for purpose of affecting his credibility, 161 A.L.R. 233.
Validity of commercial rent control legislation as applied to pre-existing leases, 162 A.L.R. 202.
Applicability (constitutional or otherwise) to interstate passengers of statute requiring segregation of passengers according to race or color, 165 A.L.R. 589.
Validity of zoning law as affected by limitation of area zoned (partial or "piece-meal" zoning), 165 A.L.R. 823.
Effect of, and remedies for, exclusion of eligible class of persons from jury list in civil case, 166 A.L.R. 1422.
Condemnation of materials for highway or other public or quasi-public works, 172 A.L.R. 131.
Condemnation of land by public authority, to provide hunting and fishing, 172 A.L.R. 174.
Acquittal or conviction of one offense in connection with operation of automobile as bar to prosecution for another, 172 A.L.R. 1053.
Condemnation of public utility property for public utility purposes, 173 A.L.R. 1362.
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.
Damage to private property caused by negligence of governmental agents as "taking," "damage," or "use" for public purposes, in constitutional sense, 2 A.L.R.2d 677.
Use in subsequent prosecution of self-incriminating testimony given without invoking privilege, 5 A.L.R.2d 1404.
Former jeopardy as ground for habeas corpus, 8 A.L.R.2d 285.
Federal Housing and Rent Act of 1947 and amendments, 10 A.L.R.2d 249.
Constitutionality, construction, and application of statute respecting sale, assignment, or transfer of retail installment contracts, 10 A.L.R.2d 447.
Power of prosecuting attorney to extend immunity from prosecution to witness claiming privilege against self-incrimination, 13 A.L.R.2d 1438.
Admissibility in condemnation proceedings of opinion evidence as to probable profits derivable from land condemned if devoted to particular agricultural purposes, 16 A.L.R.2d 1113.
Absence of accused during making of tests or experiments as affecting admissibility of testimony concerning them, 17 A.L.R.2d 1078.
Pretrial requirement that suspect or accused wear or try on particular apparel as violating constitutional rights, 18 A.L.R.2d 796.
Right of witness to refuse to answer, on the ground of self-incrimination, as to membership in or connection with party, society, or similar organization or group, 19 A.L.R.2d 388.
Inferences arising from refusal of witness other than accused to answer question on the ground that answer would tend to incriminate him, 24 A.L.R.2d 895.
Requiring submission to physical examination or test as violation of constitutional rights, 25 A.L.R.2d 1407.
What amounts to habitual intemperance, drunkenness, and the like within statute relating to substantive grounds for divorce, 29 A.L.R.2d 925.
Right of witness to claim privilege against self-incrimination on subsequent criminal trial after testifying to same matter before grand jury, 36 A.L.R.2d 1403.
Acquittal on homicide charge as bar to subsequent prosecution for assault and battery, or vice versa, 37 A.L.R.2d 1068.
Privilege against self-incrimination as to testimony before grand jury, 38 A.L.R.2d 225.
Prejudicial effect of trial court's denial, or equivalent, of counsel's right to argue case, 38 A.L.R.2d 1396.
Validity of minimum wage statutes relating to private employment, 39 A.L.R.2d 740.
Conviction or acquittal in criminal prosecution as bar to action for statutory damages or penalty, 42 A.L.R.2d 634.
Assertion of immunity as ground for removing or discharging public officer or employee, 44 A.L.R.2d 789.
Sufficiency of witness' claim of privilege against self-incrimination, 51 A.L.R.2d 1178.
Adequacy of immunity offered as condition of denial of privilege against self-incrimination, 53 A.L.R.2d 1030.
Municipal power to condemn land for cemetery, 54 A.L.R.2d 1322.
Right to waive indictment, information, or other formal accusation, 56 A.L.R.2d 837.
Validity of statute or ordinance providing for destruction of dogs, 56 A.L.R.2d 1024.
Conviction of lesser offense as bar to prosecution for greater on new trial, 61 A.L.R.2d 1141.
Conviction from which appeal is pending as bar to another prosecution for same offense, 61 A.L.R.2d 1224.
What constitutes accused's consent to court's discharge of jury or to grant of state's motion for mistrial which will constitute waiver of former jeopardy plea, 63 A.L.R.2d 782.
Cost to property owner of moving personal property as element of damages or compensation in eminent domain proceedings, 69 A.L.R.2d 1453.
Right of state in criminal contempt case to obtain data from defendant by interrogatories or pretrial discovery as permitted in civil actions, 72 A.L.R.2d 431.
Testifying in civil proceeding as waiver of privilege against self-incrimination, 72 A.L.R.2d 830.
Plea of guilty as basis of claim of double jeopardy in attempted subsequent prosecution for same offense, 75 A.L.R.2d 683.
Right of accused to have his witnesses free from handcuffs, manacles, shackles, or the like, 75 A.L.R.2d 762.
Admissibility of inculpatory statements made in presence of accused to which he refuses to reply on advice of counsel, 77 A.L.R.2d 463.
Duty of court to inform accused who is not represented by counsel of his right not to testify, 79 A.L.R.2d 643.
Criminal trial of deaf, mute, or blind person, 80 A.L.R.2d 1084.
Conviction of criminal offense without evidence as denial of due process of law, 80 A.L.R.2d 1362.
Propriety of criminal trial of one under influence of drugs or intoxicants at time of trial, 83 A.L.R.2d 1067.
Constitutionality and construction of statute or court rule relating to alternate or additional jurors or substitution of jurors during trial, 84 A.L.R.2d 1288; 15 A.L.R.4th 1127; 88 A.L.R.4th 711; 10 A.L.R. Fed. 185; 115 A.L.R. Fed. 381; 119 A.L.R. Fed. 589.
Propriety, and effect as double jeopardy, of court's grant of new trial on own motion in criminal case, 85 A.L.R.2d 486.
Propriety and prejudicial effect of showing, in criminal case, withdrawn guilty plea, 86 A.L.R.2d 326.
Right to file briefs in trial court, 86 A.L.R.2d 1233.
Right to counsel in insanity or incompetency adjudication proceedings, 87 A.L.R.2d 950.
Admissibility, in contempt proceeding against witness, of evidence of incriminating nature of question as to which he invoked privilege against self-incrimination, 88 A.L.R.2d 463.
Validity and construction of statute or ordinance requiring or prohibiting posting or other publication of price of commodity or services, 89 A.L.R.2d 901; 80 A.L.R.3d 740.
Admissibility of confession, admission, or incriminatory statement of accused as affected by fact that it was made after indictment and in the absence of counsel, 90 A.L.R.2d 732.
Right, without judicial proceeding, to arrest and detain one who is, or is suspected of being, mentally deranged, 92 A.L.R.2d 570.
Former jeopardy as ground for prohibition, 94 A.L.R.2d 1048.
Conviction or acquittal in previous criminal case as bar to revocation or suspension of driver's license on same factual charges, 96 A.L.R.2d 612.
Right of prosecution to pretrial discovery, inspection, and disclosure, 96 A.L.R.2d 1224.
Court's duty to advise or admonish accused as to consequences of plea of guilty, or to determine that he is advised thereof, 97 A.L.R.2d 549.
Admissibility of confession as affected by its inducement through artifice, deception, trickery, or fraud, 99 A.L.R.2d 772.
Comment on accused's failure to testify, by counsel for codefendant, 1 A.L.R.3d 989.
Procedural due process requirements in proceedings involving applications for admission to bar, 2 A.L.R.3d 1266.
Dismissing action or striking testimony where party to civil action asserts privilege against self-incrimination as to pertinent question, 4 A.L.R.3d 545.
Conviction or acquittal of one offense, in court having no jurisdiction to try offense arising out of same set of facts, later charged in another court, as putting accused in jeopardy of latter offense, 4 A.L.R.3d 874.
Eminent domain: Restrictive covenant or right to enforcement thereof as compensable property right, 4 A.L.R.3d 1137.
Depreciation in value, from project for which land is condemned, as a factor in fixing compensation, 5 A.L.R.3d 901.
Validity of procedures designed to protect the public against obscenity, 5 A.L.R.3d 1214; 93 A.L.R.3d 297.
Subsequent trial, after stopping former trial to try accused for greater offense, as constituting double jeopardy, 6 A.L.R.3d 905.
Modern status of doctrine of res judicata in criminal cases, 9 A.L.R.3d 203.
Attorney representing foreign corporation in litigation as its agent for service of process in unconnected actions or proceedings, 9 A.L.R.3d 738.
Validity of consent to search given by one in custody of officers, 9 A.L.R.3d 858.
Plea of guilty or conviction as resulting in loss of privilege against self-incrimination as to crime in question, 9 A.L.R.3d 990.
Power of courts or other public agencies, in the absence of statutory authority, to order compulsory medical care for adult, 9 A.L.R.3d 1391.
Necessity of informing suspect of rights under privilege against self-incrimination, prior to police interrogation, 10 A.L.R.3d 1054.
Propriety of increased punishment on new trial for same offense, 12 A.L.R.3d 978.
Admissibility as evidence in civil cases of admissions by infants, 12 A.L.R.3d 1051.
Vagueness as invalidating statutes or ordinances dealing with disorderly persons or conduct, 12 A.L.R.3d 1448.
Comment or argument by court or counsel that prosecution evidence is uncontradicted as amounting to improper reference to accused's failure to testify, 14 A.L.R.3d 723.
Power of court to make or permit amendment of indictment with respect to allegations as to property, objects, or instruments, other than money, 15 A.L.R.3d 1357.
Power of court to make or permit amendment of indictment, 17 A.L.R.3d 1181.
Power of court to make or permit amendment of indictment with respect to allegations as to prior convictions, 17 A.L.R.3d 1265.
Power of court to make or permit amendment of indictment with respect to allegations as to nature of activity, happening, or circumstances, 17 A.L.R.3d 1285.
Propriety under Griffin v. California and prejudicial effect of unrequested instruction that no inferences against accused should be drawn from his failure to testify, 18 A.L.R.3d 1335.
Accused's right to inspection of minutes of state grand jury, 20 A.L.R.3d 7.
Constitutionality of statute imposing liability upon estate or relatives of insane person for his support in asylum, 20 A.L.R.3d 363.
Substitute condemnation: power to condemn property or interest therein to replace other property taken for public use, 20 A.L.R.3d 862.
Eminent domain: charging landowner with rent or use value of land where he remains in possession after condemnation, 20 A.L.R.3d 1164.
Right of attorney appointed by court for indigent accused to, and court's power to award, compensation by public, in absence of statute or court rule, 21 A.L.R.3d 819.
Violation of federal constitutional rule (Griffin v. California) prohibiting adverse comment by prosecutor or court upon accused's failure to testify, as constituting reversible or harmless error, 24 A.L.R.3d 1093; 32 A.L.R.4th 774.
Requiring suspect or defendant in criminal case to demonstrate voice for purposes of identification, 24 A.L.R.3d 1261.
Absence of judge from courtroom during trial of civil case, 25 A.L.R.3d 637.
Right of motorist stopped by police officers for traffic offense to be informed at that time of his federal constitutional rights under Miranda v. Arizona, 25 A.L.R.3d 1076.
Construction and application, as to isolated acts or transactions, of state statutes or rules of court predicating in personam jurisdiction over nonresidents or foreign corporations upon the doing of an act, or upon doing or transacting business or "any" business, within the state, 27 A.L.R.3d 397.
Validity and construction of gun control laws, 28 A.L.R.3d 845.
Right to assistance by counsel in administrative proceedings, 33 A.L.R.3d 229.
Applicability, in proceedings under statutes relating to sexual psychopaths, of constitutional provisions for the protection of a person accused of crime, 34 A.L.R.3d 652.
Free exercise of religion as defense to prosecution for narcotic or psychedelic drug offense, 35 A.L.R.3d 939.
Funds in hands of his attorney as subject of attachment or garnishment by client's creditor, 35 A.L.R.3d 1094.
Power of eminent domain as between state and subdivision or agency thereof, or as between different subdivisions or agencies themselves, 35 A.L.R.3d 1293.
Validity and construction of statutes or ordinances regulating telephone answering services, 35 A.L.R.3d 1430.
Legality of voluntary nontherapeutic sterilization, 35 A.L.R.3d 1444.
Grand jury: admission of hearsay evidence incompetent at trial as affecting, in absence of statutory regulation, validity of indictment or conviction, 37 A.L.R.3d 612.
Rights between landlord and tenant as affected by zoning regulations restricting contemplated use of premises, 37 A.L.R.3d 1018.
Privilege against self-incrimination as ground for refusal to produce noncorporate documents in possession of person asserting privilege, but owned by another, 37 A.L.R.3d 1373.
Discrimination on basis of illegitimacy as denial of constitutional rights, 38 A.L.R.3d 613.
Admissibility of evidence of lineup identification as affected by allegedly suggestive lineup procedures, 39 A.L.R.3d 487.
Admissibility of evidence of showup identification as affected by allegedly suggestive showup procedures, 39 A.L.R.3d 791.
Admissibility of evidence of photographic identification as affected by allegedly suggestive identification procedures, 39 A.L.R.3d 1000.
Eminent domain: cost of substitute facilities as measure of compensation paid to state or municipality for condemnation of public property, 40 A.L.R.3d 143.
Measure of damages for condemnation of cemetery lands, 42 A.L.R.3d 1314.
"Fruit of the poisonous tree" doctrine excluding evidence derived from information gained in illegal search, 43 A.L.R.3d 385.
Propriety of requiring accused to give handwriting exemplar, 43 A.L.R.3d 653.
Validity and construction of statute or ordinance requiring land developer to dedicate portion of land for recreational purposes, or make payment in lieu thereof, 43 A.L.R.3d 862.
Witness' refusal to testify on ground of self-incrimination as justifying reception of evidence of prior statements or admissions, 43 A.L.R.3d 1413.
Right of exonerated arrestee to have fingerprints, photographs, or other criminal identification or arrest records expunged or restricted, 46 A.L.R.3d 900.
Censorship of convicted prisoners' "legal" mail, 47 A.L.R.3d 1150.
Censorship of convicted prisoners' "nonlegal" mail, 47 A.L.R.3d 1192.
Validity of municipal ordinance imposing income tax or license upon nonresident in taxing jurisdiction (commuter tax), 48 A.L.R.3d 343.
Exclusionary zoning, 48 A.L.R.3d 1210.
Plotting or planning in anticipation of improvement as taking or damaging of property affected, 49 A.L.R.3d 127.
Residential swimming pool as nuisance, 49 A.L.R.3d 545.
When does jeopardy attach in a nonjury trial?, 49 A.L.R.3d 1039.
Validity of statutory provision for commitment to mental institution of one acquitted of crime on ground of insanity without formal determination of mental condition at time of acquittal, 50 A.L.R.3d 144.
Relief to owner of motor vehicle subject to state forfeiture for use in violation of narcotics laws, 50 A.L.R.3d 172.
Validity and construction of statute or ordinance forbidding unauthorized persons to enter upon or remain in school building or premises, 50 A.L.R.3d 340.
Prosecution for robbery of one person as bar to subsequent prosecution for robbery of another person committed at the same time, 51 A.L.R.3d 693.
Censorship and evidentiary use of unconvicted prisoners' mail, 52 A.L.R.3d 548.
Right of member, officer, agent, or director of private corporation or unincorporated association to assert personal privilege against self-incrimination with respect to production of corporate books or records, 52 A.L.R.3d 636.
Necessity of alleging in indictment or information limitation-tolling facts, 52 A.L.R.3d 922.
Validity of statute establishing or authorizing minimum price schedules for barbers, 54 A.L.R.3d 916.
Zoning: Right to resume nonconforming use of premises after involuntary break in the continuity of nonconforming use caused by difficulties unrelated to governmental activity, 56 A.L.R.3d 14.
Zoning: Right to resume nonconforming use of premises after involuntary break in the continuity of nonconforming use caused by governmental activity, 56 A.L.R.3d 138.
Validity and application of provisions governing determination of residency for purpose of fixing fee differential for out-of-state students in public college, 56 A.L.R.3d 641.
Conviction of possession of illicit drugs found in premises of which defendant was in nonexclusive possession, 56 A.L.R.3d 948.
Validity of regulations restricting size of free standing advertising signs, 56 A.L.R.3d 1207.
Waiver or loss of right of privacy, 57 A.L.R.3d 16.
Zoning, right to repair or reconstruct building operating as nonconforming use, after damage or destruction by fire or other casualty, 57 A.L.R.3d 419.
Good will or "going concern" value as element of lessee's compensation for taking leasehold in eminent domain, 58 A.L.R.3d 566.
Loss of liquor license as compensable in condemnation proceeding, 58 A.L.R.3d 581.
Validity and construction of curfew statute, ordinance, or proclamation, 59 A.L.R.3d 321.
Right, in child custody proceedings, to cross-examine investigating officer whose report is used by court in its decision, 59 A.L.R.3d 1337.
Admissibility of videotape film in evidence in criminal trial, 60 A.L.R.3d 333.
Necessity of notice and hearing before revocation or suspension of motor vehicle driver's license, 60 A.L.R.3d 361.
Sufficiency of notice and hearing before revocation or suspension of motor vehicle driver's license, 60 A.L.R.3d 427.
Validity and construction of statute creating presumption or inference of intent to sell from possession of specified quantity of illegal drugs, 60 A.L.R.3d 1128.
Use in disbarment proceeding of testimony given by attorney in criminal proceeding under grant of immunity, 62 A.L.R.3d 1145.
Garageman's lien: Modern view as to validity of statute permitting sale of vehicle without hearing, 64 A.L.R.3d 814.
Court's presentence inquiry as to, or consideration of, accused's intention to appeal, as error, 64 A.L.R.3d 1226.
Salting for snow removal as taking or damaging abutting property for eminent domain purposes, 64 A.L.R.3d 1239.
Right to withdraw guilty plea in state criminal proceeding where court refuses to grant concession contemplated by plea bargain, 66 A.L.R.3d 902.
Construction and effect of tenure provisions of contract or statute governing employment of college or university faculty member, 66 A.L.R.3d 1018.
Refusal to answer questions before state grand jury as direct contempt of court, 69 A.L.R.3d 501.
Constitutional restrictions on nonattorney acting as judge in criminal proceeding, 71 A.L.R.3d 562.
Admissibility in criminal case of blood alcohol test where blood was taken from unconscious driver, 72 A.L.R.3d 325.
Disqualification of judge, justice of the peace, or similar judicial officer for pecuniary interest in fines, forfeitures, or fees payable by litigants, 72 A.L.R.3d 375.
Drug addiction or related mental state as defense to criminal charge, 73 A.L.R.3d 16.
Power of court to impose standard of personal appearance or attire, 73 A.L.R.3d 353.
Validity and construction of statutory provision relating to jurisdiction of court for purpose of divorce for servicemen, 73 A.L.R.3d 431.
Validity of statute allowing attorney's fee to successful claimant but not to defendant, or vice-versa, 73 A.L.R.3d 515.
Withdrawal, discharge, or substitution of counsel in criminal case as ground for continuance, 73 A.L.R.3d 725.
Validity and construction of statute or ordinance requiring return deposits on soft drink or similar containers, 73 A.L.R.3d 1105.
Eminent domain: Determination of just compensation for condemnation of billboards or other advertising signs, 73 A.L.R.3d 1122.
Pretrial preventive detention by state court, 75 A.L.R.3d 956.
Acquittal in criminal proceeding as precluding revocation of probation on same charge, 76 A.L.R.3d 564.
Acquittal in criminal proceeding as precluding revocation of parole on same charge, 76 A.L.R.3d 578.
Admissibility, in state probation revocation proceedings, of incriminating statement obtained in violation of Miranda rule, 77 A.L.R.3d 669.
Propriety and prejudicial effect of trial court's inquiry as to numerical division of jury, 77 A.L.R.3d 769.
Former jeopardy: Propriety of trial court's declaration of mistrial or discharge of jury, without accused's consent, on ground of prosecution's disclosure of prejudicial matter to, or making prejudicial remarks in presence of, jury, 77 A.L.R.3d 1143.
Good will as element of damages for condemnation of property on which private business is conducted, 81 A.L.R.3d 198.
Validity and construction of state or local regulation prohibiting off-premises advertising structures, 81 A.L.R.3d 486.
Validity and construction of state or local regulation prohibiting the erection or maintenance of advertising structures within a specified distance of street or highway, 81 A.L.R.3d 564.
Validity of state or local regulation dealing with resale of tickets to theatrical or sporting events, 81 A.L.R.3d 655.
Mandatory retirement of public officer or employee based on age, 81 A.L.R.3d 811.
Validity, construction, and application of statutes making it a criminal offense to mistreat or wrongfully dispose of dead body, 81 A.L.R.3d 1071.
Multiple instances of forcible intercourse involving same defendant and same victim as constituting multiple crimes of rape, 81 A.L.R.3d 1228.
Validity of state statutory provision permitting administrative agency to impose monetary penalties for violation of environmental pollution statute, 81 A.L.R.3d 1258.
Antagonistic defenses as ground for separate trials of codefendants in criminal case, 82 A.L.R.3d 245.
Modern status: Right of peace officer to use deadly force in attempting to arrest fleeing felon, 83 A.L.R.3d 174.
Accused's right to discovery or inspection of records of prior complaints against, or similar personnel records of, peace officer involved in the case, 86 A.L.R.3d 1170.
Nonverbal reaction to accusation, other than silence alone, as constituting adoptive admission under hearsay rule, 87 A.L.R.3d 706.
Modern status: Instruction allowing presumption or inference of guilt from possession of recently stolen property as violation of defendant's privilege against self-incrimination, 88 A.L.R.3d 1178.
Admissibility in evidence of confession made by accused in anticipation of, during, or following polygraph examination, 89 A.L.R.3d 230.
Zoning: Building in course of construction as establishing valid nonconforming use or vested right to complete construction for intended use, 89 A.L.R.3d 1051.
Acquittal as bar to prosecution of accused for perjury committed at trial, 89 A.L.R.3d 1098.
Admissibility of hypnotic evidence at criminal trial, 92 A.L.R.3d 442; 77 A.L.R.4th 927.
Use of abbreviation in indictment or information, 92 A.L.R.3d 494.
Necessity of trial or proceeding, separate from main condemnation trial or proceeding, to determine divided interest in state condemnation award, 94 A.L.R.3d 696.
Constitutionality of state legislation imposing criminal penalties for personal possession or use of marijuana, 96 A.L.R.3d 225.
Prohibition, under state civil rights laws, of racial discrimination in rental of privately owned residential property, 96 A.L.R.3d 497.
Zoning regulations in relation to cemeteries, 96 A.L.R.3d 921.
Unsightliness of powerline or other wire, or related structure, as element of damages in easement condemnation proceeding, 97 A.L.R.3d 587.
Request before submitting to chemical sobriety test to communicate with counsel as refusal to take test, 97 A.L.R.3d 852.
Validity of statutory classifications based on population - Zoning, building, and land use statutes, 98 A.L.R.3d 679.
Double jeopardy as bar to retrial after grant of defendant's motion for mistrial, 98 A.L.R.3d 997.
Zoning regulations prohibiting or limiting fences, hedges, or walls, 1 A.L.R.4th 373.
Propriety of requiring criminal defendant to exhibit self, or perform physical act, or participate in demonstration, during trial and in presence of jury, 3 A.L.R.4th 374.
Applicability of double jeopardy to juvenile court proceedings, 5 A.L.R.4th 234.
Conviction or acquittal in federal court as bar to prosecution in state court for state offense based on same facts - Modern view, 6 A.L.R.4th 802.
Conviction by court-martial as proper subject to cross-examination for impeachment purposes, 7 A.L.R.4th 468.
Mental subnormality of accused as affecting voluntariness or admissibility of confession, 8 A.L.R.4th 16.
Construction of new building or structure on premises devoted to nonconforming use as violation of zoning ordinance, 10 A.L.R.4th 1122.
Adequacy of defense counsel's representation of criminal client regarding prior convictions, 14 A.L.R.4th 227.
Retrial on greater offense following reversal of plea-based conviction of lesser offense, 14 A.L.R.4th 970.
What constitutes "manifest necessity" for state prosecutor's dismissal of action, allowing subsequent trial despite jeopardy's having attached, 14 A.L.R.4th 1014.
Presence of alternate juror in jury room as ground for reversal of state criminal conviction, 15 A.L.R.4th 1127.
Zoning regulations limiting use of property near airport as taking of property, 18 A.L.R.4th 542.
Propriety and prejudicial effect of prosecution's calling as witness, to extract claim of self-incrimination privilege, one involved in offense charged against accused, 19 A.L.R.4th 368.
Validity and construction of orders and enactments requiring public officers and employees or candidates for office, to disclose financial condition, interests, or relationships, 22 A.L.R.4th 237.
Airport operations or flight of aircraft as constituting taking or damaging of property, 22 A.L.R.4th 863.
Failure to swear or irregularity in swearing witnesses appearing before grand jury as ground for dismissal of indictment, 23 A.L.R.4th 154.
Sufficiency of court's statement, before accepting plea of guilty, as to waiver of right to jury trial being a consequence of such plea, 23 A.L.R.4th 251.
Fear of powerline, gas or oil pipeline, or related structure as element of damages in easement condemnation proceeding, 23 A.L.R.4th 631.
Damages resulting from temporary conditions incident to public improvements or repairs as compensable taking, 23 A.L.R.4th 674.
Right of accused to be present at suppression hearing or at other hearing or conference between court and attorneys concerning evidentiary questions, 23 A.L.R.4th 955.
Individual's right to present complaint or evidence of criminal offense to grand jury, 24 A.L.R.4th 316.
Eminent domain: compensability of loss of view from owner's property - state cases, 25 A.L.R.4th 671.
Power of state court, during same term, to increase severity of lawful sentence - modern status, 26 A.L.R.4th 905.
Admissibility in criminal case of evidence that accused refused to take test of intoxication, 26 A.L.R.4th 1112.
Extent and determination of attorney's right or privilege against self-incrimination in disbarment or other disciplinary proceedings - post-Spevack cases, 30 A.L.R.4th 243.
State or municipal towing, impounding, or destruction of motor vehicles parked or abandoned on streets or highways, 32 A.L.R.4th 728.
Failure to object to improper questions or comments as to defendant's pretrial silence or failure to testify as constituting waiver of right to complain of error - modern cases, 32 A.L.R.4th 774.
Enforceability of agreement by law enforcement officials not to prosecute if accused would help in criminal investigation or would become witness against others, 32 A.L.R.4th 990.
Impeachment of defendant in criminal case by showing defendant's prearrest silence - state cases, 35 A.L.R.4th 731.
Former jeopardy as bar to retrial of criminal defendant after original trial court's sua sponte declaration of a mistrial - state cases, 40 A.L.R.4th 741.
Admissibility of visual recording of event or matter giving rise to litigation or prosecution, 41 A.L.R.4th 812.
Admissibility of visual recording of event or matter other than that giving rise to litigation or prosecution, 41 A.L.R.4th 877.
Limitations on state prosecuting attorney's discretion to initiate prosecution by indictment or by information, 44 A.L.R.4th 401.
Admissibility, at criminal prosecution, of expert testimony on reliability of eyewitness testimony, 46 A.L.R.4th 1047.
Judicial power to order discontinuance of life-sustaining treatment, 48 A.L.R.4th 67.
Automobiles: validity and construction of legislation authorizing revocation or suspension of operator's license for "habitual," "persistent," or "frequent" violations of traffic regulations, 48 A.L.R.4th 367.
Voluntariness of confession as affected by police statements that suspect's relatives will benefit by the confession, 51 A.L.R.4th 495.
Sufficiency of notice of intention to discharge or not to rehire teacher, under statutes requiring such notice, 52 A.L.R.4th 301.
Statute prohibiting reckless driving: definiteness and certainty, 52 A.L.R.4th 1161.
Change in area or location of nonconforming use as violation of zoning ordinance, 56 A.L.R.4th 769.
False light invasion of privacy - accusation or innuendo as to criminal acts, 58 A.L.R.4th 902.
Addition of another activity to existing nonconforming use as violation of zoning ordinance, 61 A.L.R.4th 724.
Change in volume, intensity, or means of performing nonconforming use as violation of zoning ordinance, 61 A.L.R.4th 806.
Change in type of activity of nonconforming use as violation of zoning ordinance, 61 A.L.R.4th 902.
Civil action for damages under state Racketeer Influenced and Corrupt Organizations Acts (RICO) for losses from racketeering activity, 62 A.L.R.4th 654.
Alteration, extension, reconstruction, or repair of nonconforming structure or structure devoted to nonconforming use as violation of zoning ordinance, 63 A.L.R.4th 275.
Alcohol-related vehicular homicide: nature and elements of offense, 64 A.L.R.4th 166.
Double jeopardy: various acts of weapons violations as separate or continuing offense, 80 A.L.R.4th 631.
What constitutes assertion of right to counsel following Miranda warnings - state cases, 83 A.L.R.4th 443.
Validity, construction, and effect of juvenile curfew regulations, 83 A.L.R.4th 1056.
Right of indigent defendant in state criminal case to assistance of psychiatrist or psychologist, 85 A.L.R.4th 19.
Validity of state gun control legislation under state constitutional provisions securing the right to bear arms, 86 A.L.R.4th 931.
Necessity that waiver of accused's right to testify in own behalf be on the record, 90 A.L.R.4th 586.
Determination that state failed to prove charges relied upon for revocation of probation as barring subsequent criminal action based on same underlying charges, 2 A.L.R.5th 262.
Threats of violence against juror in criminal trial as ground for mistrial or dismissal of juror, 3 A.L.R.5th 963.
Propriety of telephone testimony or hearings in prison proceedings, 9 A.L.R.5th 451.
Validity, construction, and application of state laws imposing tax or license fee on possession, sale, or the like, of illegal narcotics, 12 A.L.R.5th 89.
Validity, construction, and application of state statute requiring inmate to reimburse government for expense of incarceration, 13 A.L.R.5th 872.
Abutting owner's right to damages for limitation of access caused by traffic regulation, 15 A.L.R.5th 821.
Requirement under property insurance policy that insured submit to examination under oath as to loss, 16 A.L.R.5th 412.
Actions by state official involving defendant as constituting "outrageous" conduct violating due process guaranties, 18 A.L.R.5th 1.
Use of peremptory challenge to exclude from jury persons belonging to a race or class, 20 A.L.R.5th 398; 47 A.L.R.5th 259.
Right to compensation for real property damaged by law enforcement personnel in course of apprehending suspect, 23 A.L.R.5th 834.
What persons or entities may assert or waive corporation's attorney-client privilege - modern cases, 28 A.L.R.5th 1.
Propriety, under state constitutional provisions, of granting use or transactional immunity for compelled incriminating testimony - post-Kastigar cases, 29 A.L.R.5th 1.
Measure of damages or compensation in eminent domain as affected by premises being restricted to particular educational, religious, charitable, or noncommercial use, 29 A.L.R.5th 36.
Use of peremptory challenges to exclude Caucasian persons, as a racial group, from criminal jury - post-Batson state cases, 47 A.L.R.5th 259.
Duty of prosecutor to present exculpatory evidence to state grand jury, 49 A.L.R.5th 639.
Admissibility of evidence of voice identification of defendant as affected by allegedly suggestive voice lineup procedures, 55 A.L.R.5th 423.
Failure of state prosecutor to disclose exculpatory photographic evidence as violating due process, 93 A.L.R.5th 527.
Failure of state prosecutor to disclose exculpatory ballistic evidence as violating due process, 95 A.L.R.5th 611.
Sufficiency of showing that voluntariness of confession or admission was affected by alcohol or other drugs - Drugs or narcotics administered as part of medical treatment and drugs or intoxicants administered by the police, 96 A.L.R.5th 523.
Conviction or acquittal in federal court as bar to prosecution in state court for state offense based on same facts - Modern view, 97 A.L.R.5th 201.
Failure of state prosecutor to disclose exculpatory medical reports and tests as violating due process, 101 A.L.R.5th 187.
Failure of state prosecutor to disclose pretrial statement made by crime victim as violating due process, 102 A.L.R.5th 327.
Application of Apprendi v. New Jersey, 530 U.S. 466, 120 S. Ct. 2348, 147 L. Ed. 2d 435 (2000) and Ring v. Arizona, 536 U.S. 584, 122 S. Ct. 2428, 153 L. Ed. 2d 556 (2002) to state death penalty proceedings, 110 A.L.R.5th 1.
Failure of state prosecutor to disclose existence of plea bargain or other deals with witness as violating due process, 12 A.L.R.6th 267.
Adoption and application of "tainted" approach or "dual motivation" analysis in determining whether existence of single discriminatory reason for peremptory strike results in automatic Batson violation when neutral reasons also have been articulated, 15 A.L.R.6th 319.
Federal constitutional right to bear arms, 37 A.L.R. Fed. 696.
Availability of sole shareholder's Fifth Amendment privilege against self-incrimination to resist production of corporation's books and records - modern status, 87 A.L.R. Fed. 177.
Discovery of, or compelled access to, records of foreign bank accounts, in federal criminal proceeding or investigation, 87 A.L.R. Fed. 676.
Effect of federal prosecutor's failure to warn grand jury witness of status as target or subject of grand jury investigation upon subsequent prosecution of witness for perjury based on testimony before grand jury, 89 A.L.R. Fed. 498.
Necessity and sufficiency, in federal prosecution, of hearing and proof with respect to accused's violation of plea bargain permitting prosecution on bargained charges, 89 A.L.R. Fed. 753.
Validity, construction, and effect of domestic currency transaction reporting requirement based upon 31 U.S.C.S. § 5313(a), 89 A.L.R. Fed. 770.
Adequacy of counsel's representation of alien in exclusion proceedings, 92 A.L.R. Fed. 656.
Artist's speech and due process rights in artistic production which has been sold to another, 93 A.L.R. Fed. 912.
Application, to drug or narcotic records maintained by druggist or physician, of "required records" exception to privilege against self-incrimination, 96 A.L.R. Fed. 868.
What conduct of federal law enforcement authorities in inducing or co-operating in criminal offense raises due process defense distinct from entrapment, 97 A.L.R. Fed. 273.
Validity, construction, and application of § 504 of Labor-Management Reporting and Disclosure Act (29 USCS § 504), precluding certain convicted persons from serving in union office for specified period, 98 A.L.R. Fed. 481.
Liability of Federal Government or government officials for action taken under Federal Witness Protection Program (18 USCS §§ 3521-3528 Supp. IV 1986), 98 A.L.R. Fed. 545.
Waiver of minor's right to counsel in deportation proceedings, 98 A.L.R. Fed. 879.
Validity, construction, and application of 18 USCS § 2251, penalizing sexual exploitation of children, 99 A.L.R. Fed. 643.
Immunity of federal tax agent from suit based upon agent's effort to enforce or collect tax, 99 A.L.R. Fed. 700.
Use of peremptory challenges to exclude ethnic and racial groups, other than black americans, from criminal jury - post-Batson federal cases, 110 A.L.R. Fed. 690.
Seeking of variance as prerequisite for ripeness of challenge to zoning ordinance under due process clause of federal constitution's fifth and fourteenth amendments - post-Williamson cases, 111 A.L.R. Fed. 483.
Validity and construction of provision of Cable Communications Policy Act (47 USC § 541(a)(2)) allowing cable companies access to utility easements on private property, 113 A.L.R. Fed. 523.
Substitution, under Rule 24c of Federal Rules of Criminal Procedure, of alternate juror for regular juror before jury retires to consider verdict in federal criminal case, 115 A.L.R. Fed. 381.
Construction and application of 18 USCS § 922(e), prohibiting delivery of firearms to common carrier, 125 A.L.R. Fed. 613.
Stranger's alleged communication with juror, other than threat of violence, as prejudicial in federal criminal prosecution, 131 A.L.R. Fed. 465.
Double jeopardy considerations in federal criminal cases - Supreme Court cases, 162 A.L.R. Fed. 415.
What constitutes taking of property requiring compensation under takings clause of Fifth Amendment to United States Constitution - Supreme Court cases, 10 A.L.R. Fed. 2d 231.
Construction and application of "public use" restriction in Fifth Amendment's Takings Clause - United States Supreme Court Cases, 10 A.L.R. Fed. 2d 407.
When does use of taser constitute violation of constitutional rights, 45 A.L.R.6th 1.
Fifth Amendment privilege against self-incrimination as applied to compelled disclosure of password or production of otherwise encrypted electronically stored data, 84 A.L.R.6th 251.
Class-of-one equal protection claims based upon law enforcement actions, 86 A.L.R.6th 173.
What constitutes accused's consent to court's discharge of jury or to grant of motion for mistrial which will constitute waiver of former jeopardy plea - silence or failure to object or protest, 103 A.L.R.6th 137.