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In Georgia, sexual offense cases have some very unique procedures and rules of evidence that don’t apply in the defense of other types of criminal cases. Understanding how and when these rules apply is essential in order to properly defend a sex offense allegation.
Title 24 of the Georgia Code includes the rules of evidence. It determines what type of testimony and evidence can be admitted at trial. From the very beginning, we must be able to analyze the evidence in terms of what will be admitted versus what will be excluded in the event of a trial.
Under Georgia Code Section 24-8-820 (a), the prosecution may introduce statements made by any child under 16 years of age in which he or she describes “any act of sexual contact or physical abuse performed with or on the child by another or performed with or on another in the presence of the child.” These will be statements that the child purportedly made to other people regarding the alleged abuse.
Prior to trial, the prosecution is required to provide notice to the defendant that it intends to introduce these child hearsay statements and which witnesses it intends to call to elicit this testimony. In order to be able to introduce child hearsay evidence, the child must be called to testify by the State and must be available for cross-examination by the defense. Under the statute, the defense can waive this requirement. In most cases, this would not be advisable but it is possible that there may be some cases where it could potentially benefit the defense if the child does not testify in front of the jury.
At trial, the prosecution will usually introduce this evidence through the testimony of alleged outcry witnesses, family members, child forensic interviewers, doctors, sexual assault nurse examiners, police officers, and anyone else who may have had dealings with the child during the investigation.
The testimony of the forensic interviewers and nurses often becomes quite critical since the prosecution will typically tender them as experts. They will then be permitted to state that, in their expert opinion, the statements and demeanor of the child were consistent with a victim of sexual abuse. Therefore, the defense must be prepared to counter this with its own expert who can refute this testimony.
Georgia Code Section 24-4-412 provides that evidence concerning an alleged sexual abuse victim’s past sexual behavior is generally inadmissible. This may include “evidence of the complaining witness’ marital history, mode of dress, general reputation for promiscuity, nonchastity, or sexual mores contrary to the community standards.”
Subsection (b) provides several exceptions to this rule. Evidence of an alleged victim’s past behavior may be introduced if (1) it is offered to prove that someone other than the defendant was the source of semen, injury, or other physical evidence pertaining to the alleged incident; (2) it supports a defendant’s reasonable belief that the alleged victim consented to the sexual conduct; (3) the evidence is offered by the prosecution; or (4) excluding the evidence would violate the defendant’s constitutional rights.
This last exception is an important one – especially when the evidence is necessary to impeach the alleged victim’s credibility. As the Georgia Supreme Court held in Villafranco v. State “[t]here is no justification for letting the witness affirmatively resort to perjurious testimony in reliance on the defendant’s disability to challenge her credibility…The shield provided by this law should not be perverted into a license to use questionable or possibly perjurious testimony free from the risk of adverse confrontation.”
At least three days before trial, the party intending to introduce the evidence must file a written motion with the court and then a hearing outside the presence of the jury will be conducted to determine whether such evidence may be admitted.
The State’s ability to introduce evidence of other acts committed by the defendant is much more expansive in sex offense cases. Unlike the limitations imposed on this evidence by Rule 404(b), there are two additional rules that apply only in sex offense cases that allow the prosecution to introduce such evidence for almost any purpose.
Under Code Section 24-4-413, when a defendant is accused of an “offense of sexual assault” (which includes most sexual offenses), the State may introduce evidence of the defendant’s commission of another alleged offense involving “sexual assault” and the evidence may be considered by the jury “for its bearing on any matter to which it is relevant – including the defendant’s lustful disposition or propensity to commit the crime charged in the indictment.
Likewise, Code Section 24-4-414 provides that in cases where a defendant is accused of child molestation, evidence of other child molestation allegations may be introduced for a similar purpose.
These rules really open up the evidence at trial to anyone who comes forward with an allegation against the defendant. The key here is that these other alleged acts need not have ever resulted in an arrest or conviction. Many times, they were not even reported to law enforcement. Therefore, they weren’t subject to any sort of investigation, forensic interview, or other measures that would help determine the credibility of the allegation.
Unfortunately, these alleged other acts will often have the effect of turning an unreliable allegation into a relatively strong one. Therefore, we must identify these additional allegations early in the case and investigate them just as thoroughly as the allegations charged in the indictment. In order to secure an acquittal at trial, we will have to effectively disprove these other allegations as well.
The good news is that we will know prior to trial if the prosecution intends to use this type of evidence. The law requires the prosecution to give notice to the defense at least 10 days prior to trial as well as provide the substance of the anticipated witnesses’ statements. Fortunately, we usually obtain this evidence well before the 10-day period which gives us ample time to effectively investigate.
One helpful addition to the Georgia Evidence Code is Code Section 24-4-404 (a) which provides that evidence of a defendant’s “pertinent trait of character” is admissible as long as it is relevant to the offense for which he is charged.
Subsection (b) further states that when the “character or a trait of character of a person is an essential element of a charge, claim, or defense or when an accused testifies to his or her own character, proof may also be made of specific instances of that person’s conduct.”
This type of evidence is especially important in cases of alleged child molestation, rape, and in internet sting operations where the defendant’s sexual interests and behavior are central to the case. In Goggins v. State, the Georgia Court of Appeals permitted character witnesses to testify that the defendant was the Father of the Year, that the witnesses had no reservations about leaving their kids alone with him, and that they had personally observed him acting appropriately with children.
Moreover, in cases where the State is introducing evidence of other alleged acts to show the defendant’s lustful disposition or propensity, it is arguable that the defendant could introduce evidence in the form of expert testimony to show that he does not have such a propensity or lustful disposition.
When faced with the hardest experience of my life, Bernard Brody took the weight off my shoulders. He carefully reviewed every aspect of my case. Throughout the process, he was very well organized, on top of the schedule, and had relevant information at his fingertips. He instantly made me feel comfortable and I knew from the start that he was the best and right attorney to hire. Unfortunately, we now live in times where a person can be accused of anything, even when it is false. Bernard is the attorney who knows the law and what law enforcement can and cannot do. The results were outstanding!
Unlike the rules of evidence outlined above that typically tend to favor the prosecution, there are several discovery procedures in sex offense cases that benefit the defense. These procedures enable the defense to secure additional evidence outside the scope of the standard discovery rules.
In most child molestation cases, we are able to request that the court order the production of the alleged victim’s school and therapy records, as well as records from any DFCS investigations. These records will then be reviewed by the court in what’s referred to as an in camera inspection. If the court finds that the records contain evidence that may be relevant at trial, they can then be turned over to the defense.
It is critical that the proper motions are filed for the production of these records since this is information that is typically privileged and confidential. The only mechanism to override the privilege is a court order. Many times, these records provide a wealth of information that the defense could never have learned without the filing of these motions.
Georgia Code Section 24-13-130 (a)(2) provides that whenever a defendant has been charged with an offense of child molestation, or any physical or sexual abuse of a child, the court can order the taking of the deposition of any doctor whose testimony is relevant to the case.
This will typically involve deposing the doctor who either conducted or supervised the physical examination of the child. These depositions can prove to be critical to the defense but this is a procedure that is all too often overlooked by attorneys in these cases. In a case involving a Gwinnett County teacher, our deposition of the physician was instrumental in proving the false allegation.
We have had a great deal of success using the particularized rules of evidence and pretrial discovery procedures to fight for the rights of individuals accused of sex offenses in Georgia. This has led to numerous acquittals and dismissals, as well as many clients who have been able to avoid formal charges completely.
We invite you to read our results page to learn more about how we’ve used the rules of evidence and discovery to successfully defend clients accused of sex crimes in Georgia.