(Code 1981, §24-6-608, enacted by Ga. L. 2011, p. 99, § 2/HB 24.)
Cross references.- A witness's character for truthfulness or untruthfulness, Fed. R. Evid. 608.
Law reviews.- For article, "The Need For a Special Exception to the Hearsay Rule in Child Sexual Abuse Cases," see 21 Ga. St. B.J. 50 (1984). For article, "An Analysis of Georgia's Proposed Rules of Evidence," see 26 Ga. St. B.J. 173 (1990).
JUDICIAL DECISIONSANALYSIS
General Consideration
Editor's notes.
- In light of the similarity of the statutory provisions, decisions under former Code 1873, §§ 3871, 3872, 3873, 3874, 3875, former Code 1882, §§ 3871, 3872, 3873, 3874, 3875, former Civil Code 1895, §§ 5292, 5293, former Penal Code 1895, §§ 1026, 1027, former Civil Code 1910, §§ 5881, 5882, former Penal Code 1910, §§ 1052, 1053, former Code 1933, §§ 38-1803, 38-1804, and former O.C.G.A. §§ 24-9-83 and24-9-84 are included in the annotations for this Code section.
In general.
- General character of a witness, when that character was put in issue, was a proper mode of ascertaining that weight that should be attached to the witness's testimony. Simpson v. State, 78 Ga. 91 (1886) (decided under former Code 1882, §§ 3871, 3873, 3874).
Any witness, other than an accused, could be discredited by evidence of bad character and by convictions involving moral turpitude. Beasley v. State, 168 Ga. App. 255, 308 S.E.2d 560 (1983) (decided under former O.C.G.A. § 24-9-84); Nelson v. State, 190 Ga. App. 142, 378 S.E.2d 186 (1989);(decided under former O.C.G.A. § 24-9-84).
Former statute specified the questions to be propounded and "impliedly excludes all others." Barnwell v. Hannegan, 105 Ga. 396, 31 S.E. 116 (1898) (decided under former Civil Code 1895, § 5293); Gordon v. Gilmer, 141 Ga. 347, 80 S.E. 1007 (1914); Rudolph v. State, 16 Ga. App. 353, 85 S.E. 365 (1915) (decided under former Civil Code 1910, § 5882); Taylor v. State, 17 Ga. App. 787, 88 S.E. 696 (1916); Cameron v. State, 66 Ga. App. 414, 18 S.E.2d 16 (1941) (decided under former Civil Code 1910, § 5882);(decided under former Civil Code 1910, § 5882);(decided under former Code 1933, § 38-1804).
Criminal defendant, when a witness, stands before the court as any other witness. Klug v. State, 77 Ga. 734 (1886) (decided under former Code 1882, §§ 3871, 3872, 3875); Coleman v. State, 141 Ga. 731, 82 S.E. 228 (1914);(decided under former Penal Code 1910, § 1052).
Prosecutor, when a witness, stands before the court as any other witness. Womack v. State, 72 Ga. 215 (1883) (decided under former Code 1882, §§ 3871, 3872, 3875).
Former O.C.G.A. § 24-9-84 prescribed a specific progression of questions to be asked when inquiring into the general reputation of a witness for impeachment purposes. Harper v. State, 157 Ga. App. 480, 278 S.E.2d 28 (1981) (decided under former Code 1933, § 38-1804).
Former O.C.G.A. § 24-9-84 required that the impeaching witness should be first asked as to the impeaching witness's knowledge of the general character of the witness, and next as to what that character was, and lastly the impeaching witness may be asked if, from that character, the impeaching witness would believe the witness on the witness's oath. Ailstock v. State, 159 Ga. App. 482, 283 S.E.2d 698 (1981) (decided under former Code 1933, § 38-1804).
Character means reputation.
- Person's character was not to be proved by asking a witness what kind of a man that person was but the person's "character," as used in legal parlance, was to be proved by asking about the person's "reputation." P.D. v. State, 151 Ga. App. 662, 261 S.E.2d 413 (1979) (decided under former Code 1933, § 38-1804).
Evidence as to character was irrelevant and inadmissible unless it was used to show the character of the witness for veracity or intended specifically to be used in the impeachment of witnesses for bad character, or equally to rebut an attempt at impeachment by a showing of good character. Edwards v. Simpson, 123 Ga. App. 44, 179 S.E.2d 266 (1970) (decided under former Code 1933, § 38-1804).
Contradictory statements as to reputation as affecting witness's credibility.
- When witness testified as to defendant's reputation in community, any subsequent contradiction simply went to the witness's credibility with the jury, and it was error for the court to strike such witness's testimony in toto. Hudson v. State, 163 Ga. App. 845, 295 S.E.2d 123 (1982) (decided under former O.C.G.A. § 24-9-84).
Limitation of question.
- Direct examination to prove the character of the accused must be limited to questions concerning the accused's general reputation in the community in which the accused lives. Overby v. State, 125 Ga. App. 759, 188 S.E.2d 910 (1972) (decided under former Code 1933, § 38-1804).
Fact that the witness's "neighborhood" was the penal institution in which the witness was incarcerated and which was composed of the witness's fellow inmates did not negate the fact that the penal institution was the place where people had the best opportunity to form a correct estimate of the witness's character. Martinez v. State, 189 Ga. App. 69, 375 S.E.2d 123 (1988) (decided under former Code 1933, § 38-1804).
Nothing in former O.C.G.A. § 24-9-84 indicated that the impeaching testimony is limited solely to the reputation of the challenged witness in a neighborhood composed of law abiding citizens. Martinez v. State, 189 Ga. App. 69, 375 S.E.2d 123 (1988) (decided under former Code 1933, § 38-1804).
Community was not community at large.
- "Classroom community" comprised of students who were removed from the general school population because of special educational needs may not be the "community at large" contemplated by former O.C.G.A. § 24-9-84. Clark v. State, 225 Ga. App. 851, 485 S.E.2d 543 (1997) (decided under former O.C.G.A. § 24-9-84).
Testimony based on personal opinion.
- If, under the entire testimony of a witness, it appeared that the witness's testimony as to the character and reputation of a party was based entirely on the witness's personal opinion, the trial judge could properly have excluded the witness's testimony. Gravitt v. State, 220 Ga. 781, 141 S.E.2d 893 (1965) (decided under former Code 1933, § 38-1804).
Admission for jury to consider conflicts in evidence.
- Expired decal authorizing defendant's use of the wrecker's emergency rotational lights was relevant as going to the likelihood of defendant's pre-collision activation of those lights, as claimed; thus, the evidence was admissible for whatever weight the jury wished to give it in resolving conflicts in the evidence. Crowe v. State, 259 Ga. App. 780, 578 S.E.2d 134 (2003) (decided under former O.C.G.A. § 24-9-84).
Character witness gave nonexpert opinion testimony and on cross-examination had the right of all such witnesses to give reasons for the witnesses's opinions. Banks v. State, 113 Ga. App. 661, 149 S.E.2d 415 (1966) (decided under former Code 1933, § 38-1804).
Admission of testimony that does not speak directly to eyewitness's truthfulness.
- On redirect, the trial court did not commit plain error by allowing the state to elicit testimony from an investigator, in which the investigator stated that the information that the investigator obtained from an eyewitness during the investigation was more consistent with other evidence collected than the information that the investigator obtained from the defendant, because the investigator's testimony did not speak directly to the eyewitness's truthfulness, but, rather, the testimony was elicited in direct response to questions raised about the manner in which the investigator conducted the investigation, and involved whether aspects of that investigation lined up with information provided by the eyewitness. Jones v. State, 299 Ga. 40, 785 S.E.2d 886 (2016).
Jury may believe witness.
- Question of credibility is always for the jury, and though a witness swore falsely on the other trial, the witness's contention that it was under duress may cause the jury to believe the witness. Williams v. State, 69 Ga. 11 (1882) (decided under former Code 1873, §§ 3871, 3872, 3875).
Failure to impeach not grounds for reversal.
- Even assuming defense counsel's failure to impeach a prison rape victim with proof of general bad character as evinced by prior felony convictions fell below a presumed level of competence, the omission did not require reversal and a new trial. Scott v. State, 223 Ga. App. 479, 477 S.E.2d 901 (1996) (decided under former O.C.G.A. § 24-9-84).
Failure to show ineffective assistance of counsel.
- Trial counsel was not ineffective for failing to obtain and introduce evidence of the victim's mother's arrest for perjury, which charges were later dismissed, because the defendant did not call the mother to testify at the new trial hearing so there was no evidence as to what the testimony would have been regarding the arrest, thus, the defendant failed to make an affirmative showing that, had trial counsel attempted to cross-examine the mother regarding the arrest, the testimony would have been allowed. Gilmer v. State, 339 Ga. App. 593, 794 S.E.2d 653 (2016).
Trial court did not err by refusing to allow counsel to ask the victim whether the victim always told the truth or told the truth to figures of authority as those questions were so broadly phrased as to have no other effect than to prove a general character trait for untruthfulness; and the questions did not seek to investigate any specific act probative of untruthfulness; thus, counsel was not ineffective in failing to elicit testimony on that subject. Gonzales v. State, 345 Ga. App. 334, 812 S.E.2d 638 (2018), cert. denied, 2018 Ga. LEXIS 752 (Ga. 2018).
Alternate objection raised first on appeal.
- When defendant contended that the testimony exceeded the proper scope of good character evidence permissible under former O.C.G.A. § 24-9-84, but at trial the defendant objected to the testimony only on the ground that the testimony was irrelevant, the testimony was not excluded because an alternate objection may not be raised for the first time on appeal. Reed v. State, 248 Ga. App. 107, 545 S.E.2d 655 (2001) (decided under former O.C.G.A. § 24-9-84).
Investigator's testimony did not bolster.
- Trial court did not err in admitting testimony by the investigator because even though the state relied heavily on the co-defendant's testimony, the investigator's testimony did not give critical weight to that testimony and there was other evidence linking the defendant to the two burglaries. Silvey v. State, 335 Ga. App. 383, 780 S.E.2d 708 (2015).
Testimony on attempt to bribe witness to change testimony.
- Trial court erred in permitting the state to elicit testimony that the co-defendant's father attempted to influence the victim by bribing the victim into changing the victim's account of what took place as a means of rehabilitating the victim's credibility because, assuming without deciding that the so-called brutal cross-examination to which the victim was subjected opened the door to rehabilitation, the testimony at issue was not the type of rehabilitative evidence allowed, which included testimony by a different witness regarding opinion or reputation of the victim's truthfulness. Belcher v. State, 344 Ga. App. 729, 812 S.E.2d 51 (2018).
Cited in Lupoe v. State, 300 Ga. 233, 794 S.E.2d 67 (2016); Strong v. State, Ga. , 845 S.E.2d 653 (2020).
Proof of Bad Character
Bad character meant bad moral character.
- General bad character, as a ground of impeachment, referred to general bad moral character, the word "moral" being used in the word's broadest sense. Sparks v. Bedford, 4 Ga. App. 13, 60 S.E. 809 (1908) (decided under former Civil Code 1895, § 5293). Allred v. State, 126 Ga. 537, 55 S.E. 178 (1906) See also (decided under former Penal Code 1895, § 1027).
Bad character did not render a witness incompetent; but the witness's credibility was for the jury, who could find a verdict on the sole testimony of such witness, unless the Code expressly required corroboration. Stone v. State, 118 Ga. 705, 45 S.E. 630, 98 Am. St. R. 145 (1903) (decided under former Penal Code 1895, § 1027). Franklin v. State, 69 Ga. 36 (1882) See also (decided under former Code 1873, §§ 3871, 3872, 3875).
Bad character evidence properly excluded when witness had not yet testified.
- Trial court did not err in not allowing a defendant to impeach an inmate witness by showing the inmate's bad character for truthfulness when the inmate had not yet testified; furthermore, the jail shift supervisor through whom the defendant sought to introduce the impeachment testimony testified that the supervisor did not know about the inmate's general character or reputation within the jail community. Felder v. State, 286 Ga. App. 271, 648 S.E.2d 753 (2007) (decided under former O.C.G.A. § 24-9-84).
How state may prove bad character.
- When defendant, in the trial of a criminal case, puts defendant's character in issue, the state (a) may cross-examine the witnesses offered by the defendant in order to test the witness's knowledge of the defendant's character; (b) may also offer witnesses to prove defendant's general bad character; and (c) the state may, when the defendant has been previously convicted of a crime involving moral turpitude, introduce the record of such conviction in the manner provided by law. Ailstock v. State, 159 Ga. App. 482, 283 S.E.2d 698 (1981) (decided under former Code 1933, § 38-1804); Cunningham v. State, 182 Ga. App. 591, 356 S.E.2d 542 (1987);(decided under former O.C.G.A. § 24-9-84).
Conviction of an offense involving moral turpitude or a felony was a proper method of showing bad character and tended to impeach the credibility of that witness. McNeely v. Wal-Mart Stores, Inc., 246 Ga. App. 852, 542 S.E.2d 575 (2000) (decided under former O.C.G.A. § 24-9-84).
Specific acts may not be shown.
- General bad character of a witness could be shown for the purpose of impeachment, but specific acts cannot be shown for that purpose. Andrews v. State, 118 Ga. 1, 43 S.E. 852 (1903) (decided under former Penal Code 1895, § 1027); Haynes v. Phillips, 67 Ga. App. 574, 21 S.E.2d 261 (1942); Security Life Ins. Co. v. Newsome, 122 Ga. App. 137, 176 S.E.2d 463 (1970) (decided under former Code 1933, § 38-1804); McCarty v. State, 139 Ga. App. 101, 227 S.E.2d 898 (1976); Colvin v. State, 155 Ga. App. 736, 272 S.E.2d 516 (1980) (decided under former Code 1933, § 38-1804); Johnson v. State, 61 Ga. 305 (1878); Black v. State, 119 Ga. 746, 47 S.E. 370 (1904) (decided under former Code 1933, § 38-1804); Rudolph v. State, 16 Ga. App. 353, 85 S.E. 365 (1915); Taylor v. State, 17 Ga. App. 787, 88 S.E. 696 (1916) (decided under former Code 1933, § 38-1804). Ailstock v. State, 159 Ga. App. 482, 283 S.E.2d 698 (1981) See also Heaton v. State, 214 Ga. App. 460, 448 S.E.2d 49 (1994) (decided under former Code 1873, §§ 3871, 3873, 3874); Wetta v. State, 217 Ga. App. 128, 456 S.E.2d 696 (1995); Venson v. Georgia, 74 F.3d 1140 (11th Cir. 1996) (decided under former Penal Code 1895, § 1027); Jones v. State, 226 Ga. App. 420, 487 S.E.2d 56 (1997); Johnson v. State, 244 Ga. App. 128, 534 S.E.2d 480 (2000) (decided under former Penal Code 1910, § 1053);(decided under former Penal Code 1910, § 1053);(decided under former Code 1933, § 38-1804);(decided under former O.C.G.A. § 24-9-84);(decided under former O.C.G.A. § 24-9-84);(decided under former O.C.G.A. § 24-9-84);(decided under former O.C.G.A. § 24-9-84);(decided under former O.C.G.A. § 24-9-84).
In response to defendant's claim of self-defense, although evidence of one victim's prior violent acts were excluded because the victim was not the aggressor, the other victim's general reputation for violence was admitted in accordance with former O.C.G.A. § 24-9-84. Quillian v. State, 279 Ga. 698, 620 S.E.2d 376 (2005) (decided under former O.C.G.A. § 24-9-84).
In a child molestation case, the trial court erred in denying the defendant's motion for new trial because it was an abuse of discretion to allow the prosecution to question the victim's mother listing the defendant's prior arrests for four offenses after the mother had already testified that the mother was aware of the defendant's prior arrests and that the arrests did not change the mother's opinion of the defendant's character; further, the admission of specific instances of conduct was not harmless as the victim's description of the defendant's improper conduct varied over time, and the appellate court could not say that the defendant's prior arrests did not enter into the jury's evaluation of the defendant's testimony and credibility. Gaskin v. State, 334 Ga. App. 758, 780 S.E.2d 426 (2015).
Trial court correctly excluded cross-examination about a detective's involvement with a website, "Uncle Wiggy's Secret Guide to Dealing With the Police;" statements as to the untruthfulness of police in the Guide were not untrue because, within limits, police could lie to or trick a suspect to obtain admissions; further, the Guide was not probative of the detective's own truthfulness or the detective's character for truthfulness as required for cross-examination under O.C.G.A. § 24-6-608(b)(1). Williams v. State, 332 Ga. App. 546, 774 S.E.2d 126 (2015).
Trial court did not err in limiting the defendant's cross-examination of the co-defendant as to images of child pornography found on the co-defendant's phone because the trial court permitted the defendant's counsel to question the co-defendant as to whether the co-defendant was testifying against the defendant in an attempt to curry favor with the state immediately after the defendant asked the co-defendant about the images. Johnson v. State, 348 Ga. App. 667, 824 S.E.2d 561 (2019).
Personnel reports of law enforcement.
- Trial court did not err by not disclosing a disciplinary report in a police officer's personnel file as: (1) no attempt was made to impeach the officer by disproving the facts testified to by the officer under former O.C.G.A. § 24-9-82 (see now O.C.G.A. § 24-6-621); (2) there was no showing that any of the documents disallowed contained any contradictory statements previously made by the officer as to matters relevant to the officer's testimony and the case under former O.C.G.A. § 24-9-83; (3) there was no contention that the officer had been convicted of a crime involving moral turpitude; and (4) the evidence was, at best, related solely to specific bad acts and not to the general bad character of the officer, which was not admissible as impeachment material under former O.C.G.A. § 24-9-84. Lopez v. State, 267 Ga. App. 178, 598 S.E.2d 898 (2004) (decided under former O.C.G.A. § 24-9-84).
Questioning on prior drug offense.
- Trial court did not commit reversible error under former O.C.G.A. § 24-9-84 in prohibiting defense counsel from asking the state's witness specifically about a prior drug offense when the witness testified that the witness had not previously been in trouble; generally, questioning a witness about a crime unrelated to the case was impermissible, and the defendant was afforded ample avenues for portraying the witness as biased and motivated to lie. Curtis v. State, 282 Ga. App. 322, 638 S.E.2d 773 (2006), cert. denied, No. S07C0427, 2007 Ga. LEXIS 203 (Ga. 2007) (decided under former O.C.G.A. § 24-9-84).
Failure of other jury to return guilty verdict.
- Former Code 1933, § 38-1803 did not allow the impeachment of a witness by the mere showing that a jury which had previously heard the same testimony in another context in another trial failed to return a verdict of guilty. An acquittal merely exempts a defendant from punishment and from another prosecution. It did not necessarily show that defendant was innocent and that, therefore, the state's witnesses did not testify truthfully. Jones v. State, 159 Ga. App. 634, 284 S.E.2d 651 (1981) (decided under former Code 1933, § 38-1803).
Testimony of sheriff's department investigator admitted.
- Sheriff's department investigator's explanation of the nature of the interview was highly relevant to whether the statement defendant gave was voluntary. Therefore, the trial court did not abuse the court's discretion in admitting the waiver certificate, even if the admission incidentally placed the defendant's character in issue under former O.C.G.A. § 24-9-83. Bynum v. State, 300 Ga. App. 163, 684 S.E.2d 330 (2009), cert. denied, No. S10C0225, 2010 Ga. LEXIS 300 (Ga. 2010) (decided under former O.C.G.A. § 24-9-83).
Use of term "bad guys."
- Defendant's motion for a mistrial was properly denied as a witness's use of the term "bad guys" in explaining undercover operations did not improperly inject defendant's character into evidence; even assuming the comment was improper, the error was harmless in light of the overwhelming evidence of defendant's guilt. Salgado v. State, 268 Ga. App. 18, 601 S.E.2d 417 (2004) (decided under former O.C.G.A. § 24-9-83).
Evidence of gang membership admissible.
- Because evidence of defendant's gang membership was admissible both as part of the res gestae of the crime and to show motive, the trial court properly denied defendant's motions in limine and for a new trial, even though the evidence implicated defendant's character. Garibay v. State, 275 Ga. App. 170, 620 S.E.2d 424 (2005) (decided under former O.C.G.A. § 24-9-83).
Foundation.
- References to the impeaching witness's "personal knowledge" of or "association" with the witness that was being impeached serve only to develop a foundation upon which to base the witness's statement as to reputation. Such a foundational line of questioning was not only permitted, but was mandated by statute. Ballenger Corp. v. Dresco Mechanical Contractors, 156 Ga. App. 425, 274 S.E.2d 786 (1980) (decided under former Code 1933, § 38-1804).
Knowledge of impeaching witness.
- It was error to exclude testimony of a witness introduced for the purpose of impeaching another witness when the impeaching witness testifies that the impeaching witness knew that the witness's general reputation, and that that reputation was not good, and, from the impeaching witness's knowledge of the witness's reputation, the impeaching witness would not believe the witness upon the witness's oath. Dent v. State, 14 Ga. App. 269, 80 S.E. 548 (1914) (decided under former Penal Code 1910, § 1053).
Opinion based on personal observation inadmissible.
- Witness's opinion of a party's character which is based solely upon the witness's personal observation of the party is not an approved mode of character evidence and is subject to being struck. Gresham v. State, 169 Ga. App. 525, 314 S.E.2d 111 (1984) (decided under former O.C.G.A. § 24-9-84).
Trial court properly excluded testimony of probation officer's personal opinion as to the victim's reputation for general character based upon personal observation coupled with unspecified reports received from unidentified law enforcement officials rendered under undisclosed circumstances. Bogan v. State, 206 Ga. App. 696, 426 S.E.2d 392 (1992) (decided under former O.C.G.A. § 24-9-84).
Opinion of single individuals not sufficient.
- Person's general bad character and reputation cannot be proved on the opinions of single individuals. Haynes v. Phillips, 67 Ga. App. 574, 21 S.E.2d 261 (1942) (decided under former Code 1933, § 38-1804).
Trial court did not err in striking the testimony of a character witness in an assistant professor's action against the Board of Regents (BOR) of the University System of Georgia for breach of an employment contract because there was no abuse of discretion in determining that the testimony that the witness did not know whether the witness would believe the professor under oath did not meet the requirements of former O.C.G.A. § 24-9-84; the BOR's counsel acquiesced in the trial court's final ruling on the matter. Bd. of Regents of the Univ. Sys. of Ga. v. Ambati, 299 Ga. App. 804, 685 S.E.2d 719 (2009), cert. denied, No. S10C0086, 2010 Ga. LEXIS 34 (Ga. 2010) (decided under former O.C.G.A. § 24-9-84).
Dying declaration not used to show violent character.
- While dying declaration of the person slain may be subject to impeachment, where under the facts of the case the evidence that deceased "brought" a witness some liquor on the day of the killing was not relevant for that purpose; nor was it admissible to show the violent character of the deceased. Green v. State, 195 Ga. 759, 25 S.E.2d 502 (1943) (decided under former Code 1933, § 38-1803).
Ill feeling will not impeach.
- Witness can be impeached only by proof of general bad character, such as would cause the impeaching witness to disbelieve the witness on oath. A witness cannot be impeached on the ground that the impeaching witness had an ill feeling toward the witness it sought to impeach because the latter owed the former money and would not pay the impeaching witness. Haynes v. Phillips, 67 Ga. App. 574, 21 S.E.2d 261 (1942) (decided under former Code 1933, § 38-1804).
Reputation at place of employment.
- When it was sought to impeach a witness by proof of bad character by means of the statutory questions as set forth in the former statute, a witness who was familiar with the witness's reputation in the place where the witness pursued the witness's regular daily vocation or work may testify as to the witness's reputation in such place, although not familiar with the community in which the witness lived. Pethel v. State, 89 Ga. App. 8, 78 S.E.2d 428 (1953) (decided under former Code 1933, § 38-1804); Bennett v. George, 105 Ga. App. 527, 125 S.E.2d 122 (1962);(decided under former Code 1933, § 38-1804).
Even though a rebuttal witness had stopped working at the General Motors plant ten years before the trial took place, the trial court did not abuse the court's discretion in allowing the witness to testify regarding a party's reputation at that plant because the witness worked there for 42 years, and kept in touch with the General Motors community since the witness retired by continuing to attend union meetings. MacGibbon v. Akins, 245 Ga. App. 871, 538 S.E.2d 793 (2000) (decided under former O.C.G.A. § 24-9-84).
Testimony on why victim left job properly excluded.
- Trial court properly refused to allow the defendant to use extrinsic evidence of the prior statement to attack the victim's character for truthfulness because further inquiry into why the victim left the victim's job was not mandated. Daniels v. State, 349 Ga. App. 681, 824 S.E.2d 754 (2019), cert. denied, 2019 Ga. LEXIS 909 (Ga. 2019).
Doctor's false note in patient chart.
- In a medical malpractice case arising out of a mother's premature delivery of her baby, the trial court did not err in admitting the doctor's note on the mother's chart that the doctor had examined her, which was later marked through with a note "patient not seen, out of room," was probative of the doctor's untruthfulness under O.C.G.A. § 24-6-608(b)(1), given that the mother had not left her room that day. The note was not unduly prejudicial under O.C.G.A. § 24-6-403. Cent. Ga. Women's Health Ctr., LLC v. Dean, 342 Ga. App. 127, 800 S.E.2d 594 (2017).
No evidence of bad character.
- When there was no evidence before the court which attacked the witness for the defendant either for bad character or for contradictory statements, it was not error for the court to refuse to allow the defendant's witness to testify as to the witness's own character for veracity. P.D. v. State, 151 Ga. App. 662, 261 S.E.2d 413 (1979) (decided under former Code 1933, § 38-1804).
Admission of first offender record.
- In both civil and criminal cases, unless there was an adjudication of guilt, a witness could not be impeached on general credibility grounds by evidence of a first offender record. Matthews v. State, 268 Ga. 798, 493 S.E.2d 136 (1997) (decided under former O.C.G.A. § 24-9-84).
Copy of record of conviction must be introduced.
- Witness cannot be discredited even by the witness's own testimony that the witness was convicted of a crime involving moral turpitude, rather, it was necessary that a copy of the record of conviction be introduced; accordingly, the testimony of a witness that the witness did some act that the law made a crime was not a legal method of impeachment. Richards v. State, 157 Ga. App. 601, 278 S.E.2d 63 (1981) (decided under former Code 1933, § 38-1804).
Because admission of booking photograph did not suggest guilt of prior crime or enflame jury, the admission did not place defendant's character into evidence or deprive defendant of a fair trial. Hunter v. State, 273 Ga. App. 52, 614 S.E.2d 179 (2005) (decided under former O.C.G.A. § 24-9-83).
Testimony by investigating officer.
- When the defendant placed the defendant's character in issue, the investigating police officer, though not a member of the defendant's community, could be an impeaching witness since the officer testified that the officer possessed personal knowledge of the defendant's character and reputation in the community. Catchings v. State, 256 Ga. 241, 347 S.E.2d 572 (1986) (decided under former O.C.G.A. § 24-9-84).
Conviction could be introduced even though appeal pending.
- Prior conviction of a witness for a crime involving moral turpitude was admissible for impeachment purposes when, at the time of the proffer thereof, the judgment of conviction was the subject of a pending appeal. James v. State, 160 Ga. App. 185, 286 S.E.2d 506 (1981) (decided under former Code 1933, § 38-1804).
Defendant's testimony regarding never being in trouble.
- It was not error to admit evidence of defendant's prior assault conviction because the conviction was offered as impeachment evidence rather than evidence of bad character since defendant testified, and defendant's counsel emphasized, that defendant had "never been in trouble." Walker v. State, 260 Ga. App. 241, 581 S.E.2d 295 (2003) (decided under former O.C.G.A. § 24-9-84).
Victim's false accusation of sexual abuse improperly barred.
- Georgia Supreme Court overruled Smith v. State, 259 Ga. 135 (1989) and similar holdings, which held that Georgia's Rape Shield statute (now O.C.G.A. § 24-4-412), as it then existed, did not prohibit testimony of previous false allegations by the victim as the court held that although Smith's bright-line test was not unworkable, neither was the alternative of applying familiar and usual rules of evidence, which trial courts routinely do every day. State v. Burns, 306 Ga. 117, 829 S.E.2d 367 (2019).
Lower appellate court properly reversed the ruling excluding the victim's admittedly false statement of sex because the false allegation plainly described the event involving someone else at a separate time; thus, there was no basis for confusion and, as such, O.C.G.A. § 24-4-403 did not pose a bar to the jury learning about the victim's false statement. State v. Burns, 306 Ga. 117, 829 S.E.2d 367 (2019).
Conviction of misdemeanor.
- Proof of conviction of a misdemeanor, if it was a crime of moral turpitude, was a proper method of showing "bad character." Ailstock v. State, 159 Ga. App. 482, 283 S.E.2d 698 (1981) (decided under former Code 1933, § 38-1804).
Misdemeanor crime not involving moral turpitude.
- Witnesses could not be impeached by proof of convictions for simple battery and for misdemeanor possession of marijuana which were not crimes involving moral turpitude. Ely v. State, 272 Ga. 418, 529 S.E.2d 886 (2000) (decided under former O.C.G.A. § 24-9-84).
Misdemeanor issuance of bad checks was crime of moral turpitude as a matter of law. Carruth v. Brown, 202 Ga. App. 656, 415 S.E.2d 470 (1992) (decided under former O.C.G.A. § 24-9-84).
Offense of simple assault was not a crime involving moral turpitude. Polk v. State, 202 Ga. App. 738, 415 S.E.2d 506 (1992) (decided under former O.C.G.A. § 24-9-84).
Conviction for giving false name admissible to negate good character.
- Certified copy of an accusation which showed that the defendant pled guilty to having given a false name to a law enforcement officer was admissible as impeachment evidence against the defendant when the defendant placed the defendant's character in issue by presentation of evidence of good character. Hicks v. State, 169 Ga. App. 542, 314 S.E.2d 113 (1984) (decided under former O.C.G.A. § 24-9-84).
Crime of moral turpitude.
- Misdemeanor of issuing a bad check in violation of O.C.G.A. § 16-9-20(a) was a crime of moral turpitude and the jury may consider evidence of a witness's guilty plea to such a crime as proof of general bad moral character which tends to impeach the credibility of that witness within the meaning of former O.C.G.A. § 24-9-84. Paradise v. State, 212 Ga. App. 166, 441 S.E.2d 497 (1994) (decided under former O.C.G.A. § 24-9-84).
When a codefendant was not a witness in the case, the codefendant was not subject to impeachment, and the trial court did not err in refusing to permit another codefendant to impeach the codefendant by a previous conviction of a crime involving moral turpitude. Moss v. State, 275 Ga. 96, 561 S.E.2d 382 (2002) (decided under former O.C.G.A. § 24-9-84).
Prior interest in drug trafficking admissible.
- When a defendant was charged with marijuana trafficking, testimony that, two years prior to the subject sale of marijuana, the defendant expressed an interest in trafficking in illegal drugs logically tended to disprove the defendant's defense, and thus was clearly relevant as rebuttal, even though the testimony did not allege participation in the crime at bar and was inadmissible as impeachment testimony. Kraus v. State, 169 Ga. App. 54, 311 S.E.2d 493 (1983) (decided under former O.C.G.A. § 24-9-84).
Defendant's status as "drunk".
- Victim advocate's testimony that a domestic abuse victim had told the advocate that the defendant was drunk when the defendant hit the victim was hearsay and not admissible as a prior inconsistent statement of the victim, because the victim did not testify as to whether or not the defendant was drunk. However, counsel's failure to object was not ineffective assistance because there was no showing of a reasonable probability that the result would have been different if the jury thought defendant was drunk or not at the time of the incident. Miller v. State, 300 Ga. App. 652, 686 S.E.2d 302 (2009) (decided under former O.C.G.A. § 24-9-83).
Juvenile arrest records were not admissible to show general bad character, but could be used to impeach defendant's testimony that the defendant had never been in trouble before. Williams v. State, 171 Ga. App. 927, 321 S.E.2d 423 (1984) (decided under former O.C.G.A. § 24-9-84).
Whether victim was a "bad" person was irrelevant because it was as unlawful to commit a crime against a "bad" person as against a "good" one. Ailstock v. State, 159 Ga. App. 482, 283 S.E.2d 698 (1981) (decided under former Code 1933, § 38-1804).
In a prosecution for aggravated assault, to the extent that the defendant sought to attack the victim's character through testimony about the victim's use of alcohol during pregnancy, whether the victim hid the defendant from the police, and the victim's alleged jealousy over the defendant's new relationship, the trial court did not abuse the court's discretion in limiting the scope of cross-examination to the issues directly related to the incidents. Massey v. State, 278 Ga. App. 303, 628 S.E.2d 706 (2006) (decided under former O.C.G.A. § 24-9-84).
Impeachment of the victim.
- Jury instruction on impeachment of the victim by evidence of bad character was properly refused under former O.C.G.A. § 24-9-84 because there was no testimony as to the victim's general reputation for truthfulness in the community or whether the witness would believe the victim under oath, so the victim's credibility was not impeached. Callahan v. State, 256 Ga. App. 482, 568 S.E.2d 780 (2002) (decided under former O.C.G.A. § 24-9-84).
Trial court properly denied defendant's motion to introduce evidence of the victim's reputation for violence; defendant failed to make a prima facie showing that shooting the victim, defendant's supervisor, was justified or in self-defense; the evidence revealed that the initial altercation had been over for at least ten minutes before defendant initiated the chase which ended with the victim's shooting. Bryant v. State, 283 Ga. App. 295, 641 S.E.2d 277 (2007) (decided under former O.C.G.A. § 24-9-84).
Defense counsel's failure to redact bad character evidence from a defense exhibit was deficient performance and based on the evidence against the defendant, as well as the prejudice caused by the unredacted defense exhibit, there was a reasonable probability that the outcome of the defendant's trial would have been different but for counsel's deficiency, and therefore the conviction was reversed. Whitaker v. State, 276 Ga. App. 226, 622 S.E.2d 916 (2005) (decided under former O.C.G.A. § 24-9-84).
Sexual offenses.
- Impeachment evidence of prior bad acts of victims in a child abuse prosecution was properly excluded. Duncan v. State, 232 Ga. App. 157, 500 S.E.2d 603 (1998) (decided under former O.C.G.A. § 24-9-84).
Letters indicating lack of enjoyment of sexual activities.
- Letters defendant wrote to other inmates were improperly admitted as impeachment evidence because the state claimed that the letters were admissible to impeach defendant's testimony that defendant did not have an extramarital affair and that because the husband had raped defendant, defendant did not enjoy sexual intercourse; the letters did not contain any statements regarding the alleged affair or rape, were not inconsistent with defendant's testimony, and did not address issues in the trial. Sammons v. State, 279 Ga. 386, 612 S.E.2d 785 (2005) (decided under former O.C.G.A. § 24-9-83).
Victim need not be shown to be assailant before victim can be impeached.
- Former O.C.G.A. § 24-9-84 did not require that before a victim-witness in a battery case may be impeached by evidence of the victim's bad character there must be a prima-facie showing that the victim was the assailant. Ailstock v. State, 159 Ga. App. 482, 283 S.E.2d 698 (1981) (decided under former Code 1933, § 38-1804).
In an appeal from the defendant's convictions for aggravated sexual battery and child molestation, the defendant's trial counsel was ineffective for failing to ask the victim's mother the mother's opinion about the victim's truthfulness because trial counsel was mistaken about being unable to question the mother about the victim's untruthfulness as it was admissible, regardless of whether the victim testified about the victim's own truthfulness; and there was a reasonable probability that the outcome would have been different absent trial counsel error as the victim's credibility was a critical point as to all of the counts, and the evidence was not overwhelming. Gonzales v. State, 345 Ga. App. 334, 812 S.E.2d 638 (2018), cert. denied, 2018 Ga. LEXIS 752 (Ga. 2018).
Cross-examination scope limited.
- Witness who was impeached by the introduction of a certified copy of a previous felony conviction, but who had not attempted to rehabilitate the witness's character by explaining the circumstances of the conviction, could not be cross-examined concerning the facts surrounding the conviction. Vincent v. State, 264 Ga. 234, 442 S.E.2d 748 (1994) (decided under former O.C.G.A. § 24-9-84).
State was properly held not to be entitled to question an expert witness about matters that bore no relation to the scientific issues about which the witness testified at trial in order to show that the witness's professional credentials were in jeopardy. King v. State, 273 Ga. 258, 539 S.E.2d 783 (2000), cert. denied, 536 U.S. 957, 122 S. Ct. 2659, 153 L. Ed. 2d 834 (2002) (decided under former O.C.G.A. § 24-9-84).
Cross-examination concerning specific facts.
- It was not permissible to prove specific facts, except on cross-examination for the purposes of testing the knowledge of the witness and of impeaching knowingly false statements. Mimbs v. State, 189 Ga. 189, 5 S.E.2d 770 (1939) (decided under former Code 1933, § 38-1804); Haynes v. Phillips, 67 Ga. App. 574, 21 S.E.2d 261 (1942); Mills v. State, 71 Ga. App. 353, 30 S.E.2d 824 (1944) (decided under former Code 1933, § 38-1804);(decided under former Code 1933, § 38-1804).
In the defendant's trial for child molestation arising out of viewing a pornographic video with the defendant's four-year-old daughter, the trial court did not err in refusing to allow the defendant to cross-examine the child's mother pursuant to O.C.G.A. § 24-6-608 regarding her own accusations of molestation against her stepfather, who had been acquitted, because the charges were not shown to be false. Further, any error was harmless. Douglas v. State, 340 Ga. App. 168, 796 S.E.2d 893 (2017).
Cross-examination as to agreement between witness and state.
- When defendant failed to prove either that there had been a deal or that the witness had any expectation of a deal, the trial court did not impermissibly abridge the defendant's Sixth Amendment rights by limiting defendant's crossexamination concerning charges against the witness. Wright v. State, 266 Ga. 887, 471 S.E.2d 883 (1996) (decided under former O.C.G.A. § 24-9-84).
Redirect examination.
- When on cross-examination the impeaching witness was questioned as to the impeaching witness's feeling toward the witness it sought to impeach and testified that the impeaching witness entertained ill feelings toward the witness, the impeaching witness could be questioned on redirect examination as to why the impeaching witness entertains such feeling toward the other witness. Haynes v. Phillips, 67 Ga. App. 574, 21 S.E.2d 261 (1942) (decided under former Code 1933, § 38-1804).
Indictment against witness.
- After a witness testified, an indictment charging the witness with embezzlement was inadmissible in evidence for the purpose of impeaching the witness. Gardner v. State, 81 Ga. 144, 7 S.E. 144 (1888) (decided under former Code 1882, §§ 3871, 3873, 3874); McCray v. State, 134 Ga. 416, 68 S.E. 62, 20 Ann. Cas. 101 (1910); Beach v. State, 138 Ga. 265, 75 S.E. 139 (1912) (decided under former Penal Code 1895, § 1027); Wilson v. State, 235 Ga. 470, 219 S.E.2d 756 (1975);overruled on other grounds,(decided under former Penal Code 1910, § 1053).
While a witness may be discredited by proof of general bad character or conviction of a crime involving moral turpitude, it was not competent to discredit the witness by showing that the witness had committed, been arrested for, confined for, or even indicted for such an offense, and neither may general bad character be proved by individual acts. Richards v. State, 157 Ga. App. 601, 278 S.E.2d 63 (1981) (decided under former Code 1933, § 38-1804).
Error to consider testimony of witness as to conviction of crime in sentencing defendant.
- Although it was harmless error to admit, erroneously, a witness's own testimony that the witness was convicted of a crime involving moral turpitude, it was error for the trial court to consider such testimony in determining an appropriate sentence for the defendant. Richards v. State, 157 Ga. App. 601, 278 S.E.2d 63 (1981) (decided under former Code 1933, § 38-1804).
Secondary evidence admitted without objection.
- When two witnesses testified that the witnesses pled guilty to the larceny for which the defendant was on trial, and while, over proper objection, this would not have been sufficient proof of bad character of itself to impeach the witnesses since there was no objection on the ground that the record of conviction would be the highest and best evidence of this fact, the secondary evidence admitted without objection could be considered by the jury, which would, under the circumstances, have a right to disbelieve that part of the testimony tending to exonerate the defendant from complicity in the theft. Roach v. State, 90 Ga. App. 44, 81 S.E.2d 886 (1954) (decided under former Code 1933, § 38-1804).
Failure to object to prior conviction waived.
- Defendant's failure to object to proof of a prior conviction introduced by defendant's testimony in response to a prosecutorial cross-examination waived any "best evidence rule" objections to this testimony on appeal. Howard v. State, 206 Ga. App. 610, 426 S.E.2d 181 (1992) (decided under former O.C.G.A. § 24-9-84).
Attacked witness may be believed.
- Witness who was attacked for general bad character may be believed by the jury regardless of whether there was any evidence to sustain the witness's good character or any corroborating evidence. Rowe v. State, 68 Ga. App. 161, 22 S.E.2d 210 (1942) (decided under former Code 1933, § 38-1804).
Questioning of witness about nolle prossed crime.
- Trial court did not commit reversible error under former O.C.G.A. § 24-9-84 in declining to allow defense counsel to question the state's witness about the specific crime that was nolle prossed in exchange for the witness's testimony against the defendant; defense counsel was permitted to bring out that a charge against the witness had been dismissed and that the witness had faced 10 years in prison on the charge. Curtis v. State, 282 Ga. App. 322, 638 S.E.2d 773 (2006), cert. denied, No. S07C0427, 2007 Ga. LEXIS 203 (Ga. 2007) (decided under former O.C.G.A. § 24-9-84).
Proof of witness's reputation for violence was not a proper method of impeachment. Peters v. State, 55 Ga. App. 870, 192 S.E. 84 (1937) (decided under former Code 1933, § 38-1804).
Character evidence inadmissible in the following cases: Long v. State, 22 Ga. 40 (1857) (gambling) (decided under former law); Smithwick v. Evans, 24 Ga. 461 (1858) (prostitution) (decided under former law); McDowell v. Preston, 26 Ga. 528 (1858) (drug addiction) (decided under former law); Weathers v. Barksdale, 30 Ga. 888 (1860) (bastardy) (decided under former law); Pulliam v. Cantrell, 77 Ga. 563, 3 S.E. 280 (1886) (embezzlement) (decided under former Code 1882, §§ 3871, 3873, 3874); Gordon v. Gilmer, 141 Ga. 347, 80 S.E. 1007 (1914) (character as to truthfulness) (decided under former Civil Code 1910, § 5882).
Proof of Good Character
Evidence of good character admissible when the general character of a witness is impeached. Stamper v. Griffin, 12 Ga. 450 (1853) (decided under former law).
Evidence of good character inadmissible.
- When not impeached otherwise than by disproving the truth of the witness's evidence, or by testimony tending to disprove the evidence, the witness cannot be supported by proof of the witness's general good character. Miller v. Western & Atl. R.R., 93 Ga. 480, 21 S.E. 52 (1893) (decided under former Code 1882, §§ 3871, 3873, 3874).
When evidence of good character admissible.
- When it was sought to impeach a witness by proof of contradictory statements, this rendered admissible in the witness's favor testimony as to the witness's general good character. Bell Bros. v. Aiken, 1 Ga. App. 36, 57 S.E. 1001 (1907) (decided under former Civil Code 1895, § 5292); Georgia Life Ins. Co. v. McCranie, 12 Ga. App. 855, 78 S.E. 1115 (1913); Ricks v. State, 70 Ga. App. 395, 28 S.E.2d 303 (1943) (decided under former Civil Code 1910, § 5881);(decided under former Code 1933, § 38-1803).
Reputation for truth and veracity.
- When evidence of contradictory statements by a witness is offered by way of impeaching the witness's veracity, general evidence that the witness is a man of truth and veracity may be admitted, controverted, and denied. Stamper v. Griffin, 12 Ga. 450 (1853) (decided under former law).
Proof of good character.
- See Price v. State, 72 Ga. 441 (1884) (decided under former Code 1882, §§ 3871, 3873, 3874); Clark v. State, 117 Ga. 254, 43 S.E. 853 (1903); Gordon v. State, 10 Ga. App. 35, 72 S.E. 544 (1911) (decided under former Penal Code 1895, § 1026); Haywood v. State, 12 Ga. App. 240, 76 S.E. 1077 (1913);(decided under former Penal Code 1910, § 1052);(decided under former Penal Code 1910, § 1052).
Testimony under oath from witness who accepted plea bargain.
- With regard to defendant's conviction for trafficking in methamphetamine, the trial court properly denied defendant's motion for a new trial, and did not err by allowing the testimony of a defense witness taken under oath when that witness entered into a plea agreement as, although the trial court initially determined that some of the defense witness's statements were inadmissible, the statements regarding prior drug dealings between the defense witness and defendant became admissible for impeachment purposes since the defense witness personally contradicted the witness's own testimony. Corn v. State, 290 Ga. App. 792, 660 S.E.2d 782 (2008) (decided under former O.C.G.A. § 24-9-83).
Rebuttal by proof of good character.
- When, in order to discredit a witness, the witness's reputation was assailed, the party by whom the witness was introduced had the right to introduce rebutting evidence to show that the witness's character and reputation were good, even though the attempt to discredit was made on examination of the witness personally. Gazaway v. State, 15 Ga. App. 467, 83 S.E. 857 (1914) (decided under former Penal Code 1910, § 1053). Suddeth v. State, 112 Ga. 407, 37 S.E. 747 (1900) See also (decided under former Penal Code 1895, § 1027).
Character for veracity irrelevant.
- When the statutory questions were asked to sustain the character of a witness sought to be impeached by evidence of general bad character, other questions, such as the character of the witness for veracity, may not be asked. Edwards v. Simpson, 123 Ga. App. 44, 179 S.E.2d 266 (1970) (decided under former Code 1933, § 38-1804).
Evidence of veracity when credibility not attacked.
- Until the adverse party attacked the credibility of a witness, either for bad character or because of contradictory statements, the party calling the witness cannot introduce evidence in support of the witness's character for veracity. P.D. v. State, 151 Ga. App. 662, 261 S.E.2d 413 (1979) (decided under former Code 1933, § 38-1803).
Direct and cross-examination.
- Witness, in testifying as to the defendant's good character, must categorically answer the questions impliedly included in the former statute and no others. On cross-examination, the solicitor (now district attorney) may bring out specific facts for the purpose of testing the witness's knowledge, and may ask as a hypothetical question whether, if the witness knew certain facts, the witness's opinion would still be that the defendant's character was good. Banks v. State, 113 Ga. App. 661, 149 S.E.2d 415 (1966) (decided under former Code 1933, § 38-1804).
Cross-examination of defendant's character witness in a child molestation case, that consisted of questions inquiring whether witness was aware defendant pled guilty to practicing law without a license, was admissible for the purpose of testing the witness's familiarity with the defendant. Davidson v. State, 231 Ga. App. 605, 499 S.E.2d 697 (1998) (decided under former O.C.G.A. § 24-9-84).
Trial court did not err by allowing the state to cross-examine the defendant's biological daughter about having previously worked as a stripper and having abused drugs because the evidence was offered by the state in rebuttal to the daughter's testimony after the defendant intentionally elicited the testimony as to the defendant's and the daughter's own good character; since the only conceivable purpose of the questions defense counsel asked the daughter was to elicit testimony concerning the character of the defendant and the daughter, the trial court did not err when the court held that the state could introduce rebuttal evidence on the same subject. Arnold v. State, 305 Ga. App. 45, 699 S.E.2d 77 (2010) (decided under former O.C.G.A. § 24-9-84).
Evidence not in compliance with former statute.
- When the only evidence in any way tending to sustain a witness was the testimony of another witness that the impeaching witness knew the witness to be honest, industrious, and well-liked by the customers of the latter witness, such evidence was not a compliance with the requirement that an impeached witness may be sustained by proof of general good character. Jackson v. Middlebrooks, 86 Ga. App. 259, 71 S.E.2d 462 (1952) (decided under former Code 1933, § 38-1804).
Evidence in mitigation of capital punishment.
- Constitution required that evidence which would be inadmissible under an evidentiary rule must not automatically be excluded if tendered in a capital case in mitigation of punishment, rather, the potentially mitigating influence of the testimony must be weighed against the harm resulting from the violation of the evidentiary rule, and in close cases the doubt should be resolved in favor of admissibility. Collier v. State, 244 Ga. 553, 261 S.E.2d 364 (1979), overruled on other grounds, Satterfield v. State, 248 Ga. 538, 285 S.E.2d 3 (1981) (decided under former Code 1933, § 38-1804) Thompson v. State, 263 Ga. 23, 426 S.E.2d 895 (1993); McClellan v. State, 274 Ga. 819, 561 S.E.2d 82 (2002), overruled on other grounds,(decided under former O.C.G.A. § 24-9-84).
Failure to charge concerning character.
- Proper instruction should be given in every case when the accused puts the accused's character in issue; but, in the absence of a timely request, an omission to give a specific charge on the subject would not require a new trial. It was only in exceptional cases where the court failed to charge relative to the good character of the accused that a new trial should be granted. Taylor v. State, 83 Ga. App. 735, 64 S.E.2d 598 (1951) (decided under former Code 1933, § 38-1804).
Character witnesses excluded.
- Trial court did not err by refusing to allow two of defendant's character witnesses to explain their answers since the transcript showed that the testimony sought exceeded the permissible scope of former O.C.G.A. § 24-9-84. Collar v. State, 206 Ga. App. 448, 426 S.E.2d 43 (1992) (decided under former O.C.G.A. § 24-9-84).
Pastor testifying to truthfulness of parties.
- Trial court erred by admitting the testimony of a pastor regarding the reputation for truthfulness of a husband and a wife and that the pastor would believe the husband and the wife under oath because the character for truthfulness of the husband and wife had not been attacked since the pastor testified during the case-in-chief of the husband and wife, before any defense witnesses had testified; the error was not harmless because the jury's verdict was based in large part upon the jury's determinations regarding the parties' credibility. Barnett v. Farmer, 308 Ga. App. 358, 707 S.E.2d 570 (2011) (decided under former O.C.G.A. § 24-9-84).
Instructions
No evidence of good character.
- Charge could omit the part of the former statute which related to sustaining the witness by proof of general good character since there was no such evidence of general good character of a witness thus attacked. Reeves v. State, 22 Ga. App. 628, 97 S.E. 115 (1918) (decided under former Penal Code 1910, § 1052); Geer v. State, 184 Ga. 805, 193 S.E. 776 (1937); Jones v. State, 193 Ga. 449, 18 S.E.2d 844 (1942) (decided under former Code 1933, § 38-1803); Knight v. State, 92 Ga. App. 785, 90 S.E.2d 46 (1955);(decided under former Code 1933, § 38-1803);(decided under former Code 1933, § 38-1803).
No evidence of bad character.
- In charging upon the law of impeachment of witnesses, when the court charged as to impeachment by disproving facts testified to, and by contradictory statements, it was not error, but was proper, to omit to charge the law of impeachment by proof of general bad character, since there was no evidence seeking to impeach any witness upon that ground. Smithwick v. State, 199 Ga. 292, 34 S.E.2d 28 (1945), overruled on other grounds, Milton v. State, 245 Ga. 20, 262 S.E.2d 789 (1980) (decided under former Code 1933, § 38-1803).
Charge on impeachment by bad character.
- When plaintiff introduced evidence as to the bad character of a witness for the defendant to show the witness unworthy of belief and when the court charged the jury that a witness could be impeached by bad character, it was error for the court to fail to charge without request that a witness could be sustained by proof of good character, there being evidence of the witness's good character. Haynes v. Phillips, 69 Ga. App. 524, 26 S.E.2d 186 (1943) (decided under former Code 1933, § 38-1804).
If a defendant wished to have the jury charged that the defendant would not be subject to impeachment pursuant to former O.C.G.A. § 24-9-84, the defendant should request such a charge. Absent such a request, the appellate court need not decide whether the defendant was entitled to a jury charge on that issue. King v. State, 195 Ga. App. 865, 395 S.E.2d 1 (1990) (decided under former O.C.G.A. § 24-9-84).
Trial court did not err in refusing to instruct the jury regarding impeachment by general bad character pursuant to former O.C.G.A. § 24-9-84 since neither side relied on that method of impeachment at defendant's trial. Kirkland v. State, 67 Ga. App. 256, 19 S.E.2d 787 (1942) (decided under former O.C.G.A. § 24-9-84).
Charge when no evidence of bad character.
- In charging upon the law of impeachment of witnesses, when the court charges as to impeachment by disproving facts testified to, and by contradictory statements, it was not error, but was proper, to omit to charge the law of impeachment by proof of general bad character since there was no evidence seeking to impeach any witness upon that ground. Smithwick v. State, 199 Ga. 292, 34 S.E.2d 28 (1945), overruled on other grounds, Milton v. State, 245 Ga. 20, 262 S.E.2d 789 (1980) (decided under former Code 1933, § 38-1804).
Charge in connection with conviction of crime.
- Charge of the trial court was not error requiring reversal because of the use of the term "general bad character" in connection with the charge of impeachment of certain witnesses because of convictions of crimes involving moral turpitude. Tyler v. State, 91 Ga. App. 87, 84 S.E.2d 843 (1954) (decided under former Code 1933, § 38-1804).
Failure to charge statute.
- It was not reversible error to fail to charge the law of credibility of witnesses without a written request. Ailstock v. State, 159 Ga. App. 482, 283 S.E.2d 698 (1981) (decided under former Code 1933, § 38-1804).
Court's reference to offense involving moral turpitude.
- Trial court's inclusion in the court's general charge on the various methods of impeachment of a reference to impeachment by proof of a witness's conviction of an offense involving moral turpitude was erroneous since the defendant had not put the defendant's own character in issue; however, the charge was harmless when, immediately following the reference to impeachment pursuant to former O.C.G.A. § 24-9-84, the jury was given extensive instructions as to impeachment by other methods. Francis v. State, 266 Ga. 69, 463 S.E.2d 859 (1995) (decided under former O.C.G.A. § 24-9-84).
Curative instruction.
- Trial court properly denied the defendant's motion for a mistrial based on a claim that a friend's testimony improperly interjected character evidence as a curative instruction given by the trial court was an adequate remedy. Reid v. State, 281 Ga. App. 640, 637 S.E.2d 62 (2006) (decided under former O.C.G.A. § 24-9-83).
Trial court erred in denying the defendant's motion for a mistrial after a state's witness impermissibly interjected the defendant's character into evidence by referring to the defendant's prior arrest record. Although the trial court gave the jury a curative instruction informing the jury that the testimony regarding the defendant's prior arrest history was improper, could not be considered in determining guilt or innocence in the case, and was required to be disregarded; the trial court further polled the jury to determine whether the jury could abide by the curative instructions and render a verdict based upon the competent evidence duly admitted, and all of the jurors indicated that the jurors could follow the curative instructions. Kohler v. State, 300 Ga. App. 692, 686 S.E.2d 328 (2009) (decided under former O.C.G.A. § 24-9-83).
Curative instruction advising not to consider improper character evidence.
- Trial court erred in admitting evidence of a prior conviction and defendant's involvement in other drug deals because the defendant offered no evidence in support of the entrapment defense and the state had no basis on which to admit the character evidence; however, the denial of the defendant's motion for mistrial was not an abuse of discretion in light of the overwhelming evidence of the defendant's guilt and a detailed curative instruction advising the jury not to consider the improperly-admitted evidence. Nettles v. State, 276 Ga. App. 259, 623 S.E.2d 140 (2005) (decided under former O.C.G.A. § 24-9-83).
Lack of convictions insufficient for charge.
- Merely having no convictions or a clean record was insufficient for the defendant to invoke good character; consequently, the trial court did not err by refusing to give the defendant's requested charge. Godsey v. State, 271 Ga. App. 663, 610 S.E.2d 634 (2005) (decided under former O.C.G.A. § 24-9-83).
RESEARCH REFERENCES
Am. Jur. 2d.
- 29 Am. Jur. 2d, Evidence, §§ 362, 365 et seq., 663. 81 Am. Jur. 2d, Witnesses, §§ 215 et seq., 272 et seq., 286 et seq., 406 et seq., 423 et seq., 458 et seq., 487, 501, 505.
ALR.
- Right to impeach accused as a witness by proof of general bad moral character or reputation, 90 A.L.R. 870.
Instruction regarding good or bad character of witnesses as affecting their credibility, 120 A.L.R. 1442.
Cross-examination of character witness for accused with reference to particular acts or crimes, 47 A.L.R.2d 1258.
Impeachment of witness with respect to intoxication, 8 A.L.R.3d 749.
Propriety of cross-examining witness as to illicit relations with defendant in criminal case, 25 A.L.R.3d 537.
Admissibility of testimony as to general reputation at place of employment, 82 A.L.R.3d 525.
Modern status of admissibility, in forcible rape prosecution, of complainant's general reputation for unchastity, 95 A.L.R.3d 1181.
Admissibility, in incest prosecution, of evidence of alleged victim's prior sexual acts with persons other than the accused, 97 A.L.R.3d 967.
Admissibility of evidence of character of or reputation of party to civil action for sexual assault on issues other than impeachment, 100 A.L.R.3d 569.
Conviction by court-martial as proper subject of cross-examination for impeachment purposes, 7 A.L.R.4th 468.
Cross-examination of character witness for accused with reference to particular acts or crimes--modern state rules, 13 A.L.R.4th 796.
Use or admissibility of prior inconsistent statements of witness as substantive evidence of facts to which they relate in criminal case - modern state cases, 30 A.L.R.4th 414.
Admissibility of impeached witness's prior consistent statement - modern state criminal cases, 58 A.L.R.4th 985; 59 A.L.R.4th 1000.
Use of plea bargain or grant of immunity as improper vouching for credibility of witness - state cases, 58 A.L.R.4th 1229.
Propriety of using prior conviction for drug dealing to impeach witness in criminal trial, 37 A.L.R.5th 319.
What constitutes crime involving "dishonesty or false statement" under Rule 609(a)(2) of the Uniform Rules of Evidence, 83 A.L.R.5th 277.
What constitutes crime involving "dishonesty or false statement" under Rule 609(a)(2) of the Uniform Rules of Evidence or similar state rule-nonviolent crimes, 84 A.L.R.5th 487.
Admissibility of evidence of other crimes, wrongs, or acts under Rule 404(b) of the Federal Rules of Evidence, in civil cases, 171 A.L.R. Fed. 483.
Impeachment of federal trial witness with respect to intoxication, 106 A.L.R. Fed. 371.
Propriety and prejudicial effect of witness testifying while in prison attire, 1 A.L.R.7th 5.