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Editor: Colin Miller
Univ. of South Carolina School of Law

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Monday, July 12, 2010

Georgia (Im)peach(ment): Supreme Court Of Georgia Rejects Due Process Challenge To Felony Impeachment Rule

Federal Rule of Evidence 609(a)(1) provides that

For the purpose of attacking the character for truthfulness of a witness,

(1) evidence that a witness other than an accused has been convicted of a crime shall be admitted, subject to Rule 403, if the crime was punishable by death or imprisonment in excess of one year under the law under which the witness was convicted, and evidence that an accused has been convicted of such a crime shall be admitted if the court determines that the probative value of admitting this evidence outweighs its prejudicial effect to the accused (emphasis added).

Meanwhile, OGCA Section 24-9--84.1(a)(2) provides that

For the purpose of attacking the credibility of a witness, or of the defendant, if the defendant testifies:

(2) Evidence that the defendant has been convicted of a crime shall be admitted if the crime was punishable by death or imprisonment of one year or more under the law under which the defendant was convicted if the court determines that the probative value of admitting the evidence substantially outweighs its prejudicial effect to the defendant (emphasis added).

And, as the recent opinion of the Supreme Court of Georgia in Childs v. State, 2010 WL 2680587 (Ga. 2010), makes clear, courts have found that both of these rules do not violate defendants' due process rights.

In Childs, Isaiah Childs was convicted of one count of the sale of cocaine. At trial, Childs neither testified nor presented any evidence, with defense counsel stating that Childs would not testify because OGCA Section 24-9--84.1(a)(2) would then allow the State to impeach him with evidence of his prior felony convictions for the possession of cocaine, the possession of marijuana, and burglary.

After he was convicted, Childs appealed, claiming, inter alia, that the statute was unconstitutional on the ground it unconstitutionally burdened his right to testify and therefore violated his due process rights. The Supreme Court of Georgia disagreed, noting that the United States Supreme Court rejected a similar challenge to Federal Rule of Evidence 609(a)(1) in Ohler v. United States, 529 U.S. 753 (2000), finding that

"It has long been held that a defendant who takes the stand in his own behalf cannot then claim the privilege against cross-examination on matters reasonably related to the subject matter of his direct examination....It is not thought overly harsh in such situations to require that the determination whether to waive the privilege take into account the matters which may be brought out on cross-examination. It is also generally recognized that a defendant who takes the stand in his own behalf may be impeached by proof of prior convictions or the like....Again, it is not thought inconsistent with the enlightened administration of criminal justice to require the defendant to weigh such pros and cons in deciding whether to testify."

The Georgia Supremes then noted that "[o]ther courts to consider the issue have likewise held that due process is not violated by permitting the impeachment of a testifying defendant with prior convictions." The court "agree[d] with this apparently unanimous authority and also note[d] that, in Georgia, defendants are actually subject to more limited impeachment than all other witnesses who have prior felony convictions." 

(If you look at the language of Federal Rule of Evidence 609(a)(1), you will see that federal law also makes defendants subject to more limited impeachment than all other witnesses who have prior felony convictions. And if you compare Federal Rule of Evidence 609(a)(1) to OGCA Section 24-9--84.1(a)(2), you will see that defendants are subject to more limited impeachment under the latter rule than under the former rule.).

-CM

http://lawprofessors.typepad.com/evidenceprof/2010/07/609--childs-v-state----se2d------2010-wl-2680587ga2010.html

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