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Univ. of South Carolina School of Law

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Monday, June 7, 2010

Continuation Rule: Supreme Court Of Georgia Finds Admission Of Eyewitness ID Forms Doesn't Violate Continuing Witness Rule

Apparently, Georgia has an objection which is known as the continuing witness objection:

In Georgia, the continuing witness objection is based on the notion that written testimony is heard by the jury when read from the witness stand just as oral testimony is heard when given from the witness stand. But, it is unfair and places undue emphasis on written testimony for the writing to go out with the jury to be read again during deliberations, while oral testimony is received but once....The types of documents that have been held subject to the rule include affidavits, depositions, written confessions, statements, and dying declarations. Davis v. State, 676 S.E.2d 215, 219 (Ga. 2009).

According to the recent opinion of the Supreme Court of Georgia in Dockery v. State, 2010 WL 2243249 (Ga. 2010), however, eyewitness identification forms are not subject to the rule. Although I don't know much about the continuing witness objection, I find this odd.

In Dockery, Jeremy Dockery was convicted of murder and related charges. Dockery was convicted in large part based upon eyewitness testimony by four eyewitnesses. During jury deliberations, jurors were given, inter alia, four 

pre-printed forms filled out by each of the four eyewitnesses who testified to having identified [Dockery] as the shooter from a pretrial photo lineup. The forms contain the following, limited information: the witness' name and signature, the number of the photograph the witness selected from the lineup, the date and time of the selection, and the name of the detective who conducted the lineup.

After he was convicted, Dockery appealed, claiming, inter alia, that "the trial court erred by allowing [these four] exhibits to go out with the jury during deliberations in violation of the continuing witness rule." The Supreme Court of Georgia disagreed, finding that

Unlike the documents in cases such as Flournoy v. State, 266 Ga. 618, 619-620 (469 S.E.2d 195) (1996) (photo lineup statement reflected that the witness "'positively identified photo # 5 as being the person who committed the offense of murder'" with additional handwritten note stating "'90% as shooter'") and Parks v. State, 199 Ga.App. 736, 738(2) (406 S.E.2d 229) (1991) (finding harmless the submission to the jury of photo identification sheet containing comment that "'(i)t has to be # 2 because the mustache and lips matched the robber'"), no additional information was added to the challenged documents in this case.

Instead, the Georgia Supremes found that each "'photographic lineup file was not a testimonial account of the [witness'] identification of the appellant but was documentary evidence of the event itself.'"

My question is: How were the photographic lineup files not testimonial? Essentially, they were accounts of how each of the eyewitnesses identified the defendant as the perpetrator of the subject crime. In my mind, they were the equivalent of each eyewitness taking the witness stand and pointing to the defendant when asked if the person who committed the crime was in the courtroom. And, if we are looking at it in terms of the Confrontation Clause, the IDs were testimonial because each of these eyewitnesses would reasonably have expected that their IDs would have been available for use at a later trial. I simply don't see the distinction drawn by the court.

-CM

http://lawprofessors.typepad.com/evidenceprof/2010/06/continuing-witness-rule--dockery-v-state----se2d------2010-wl-2243249ga2010.html

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