(Code 1981, §24-6-611, enacted by Ga. L. 2011, p. 99, § 2/HB 24.)
Cross references.- Cross-examination of defendant at pretrial proceedings, § 17-7-28.
Privilege against self-incrimination and testimony of an accused in a criminal case, § 24-5-506.
Mode and order of examining witnesses and presenting evidence, Fed. R. Evid. 611.
Law reviews.- For article, "The Right of Confrontation: Its History and Modern Dress," see 8 J. of Pub. L. 381 (1959). For article discussing cross-examination techniques, see 16 Ga. St. B.J. 117 (1980). For article, "An Analysis of Georgia's Proposed Rules of Evidence," see 26 Ga. St. B.J. 173 (1990). For annual survey on evidence, see 65 Mercer L. Rev. 125 (2013). For note, "Impeachment of One's Own Witness in Georgia," see 9 Ga. St. B.J. 355 (1973). For note discussing party's right to impeach own witness in light of Wilson v. State, 235 Ga. 470, 219 S.E.2d 756 (1975), see 28 Mercer L. Rev. 389 (1976). For comment on Frady v. State, 212 Ga. 84, 90 S.E.2d 664 (1955), holding that a defendant has the right to cross-examine all witnesses called against him in all material matters, including the past conduct of the prosecutrix in an action for rape, see 19 Ga. B.J. 95 (1956). For comment discussing the use of treatises in cross-examining an expert, in light of Hopkins v. Gromovsky, 198 Va. 389, 94 S.E.2d 190 (1956), see 20 Ga. B.J. 109 (1957). For comment on Bacon v. State, 222 Ga. 151, 149 S.E.2d 111 (1966), see 18 Mercer L. Rev. 506 (1967). For comment on Smith v. State, 225 Ga. 328, 168 S.E.2d 587 (1969) and the right to probe relationship of a witness to a party, see 21 Mercer L. Rev. 347 (1969). For comment on Mullis v. Chaika, 118 Ga. App. 11, 162 S.E.2d 448 (1968), see 5 Ga. St. B.J. 377 (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 Lynn v. State, 231 Ga. 559, 203 S.E.2d 221 (1974), appearing below, see 8 Ga. L. Rev. 973 (1974).
JUDICIAL DECISIONSANALYSIS
General Consideration
Editor's notes.
- In light of the similarity of the statutory provisions, decisions under Code 1873, §§ 3864, 3865, 3869, former Code 1882, §§ 3864, 3865, 3869, former Ga. L. 1890-91, p. 78, § 1, former Civil Code 1895, §§ 5281, 5282, 5283, 5290, former Penal Code 1895, §§ 1018, 1019, 1024, former Civil Code 1910, §§ 5870, 5871, 5872, 5879, former Penal Code 1910, §§ 1044, 1045, 1050, former Code 1933, §§ 38-1704, 38-1705, 38-1706, 38-1801, and former O.C.G.A. §§ 24-9-62,24-9-63,24-9-64,24-9-81 are included in the annotations for this Code section.
Balancing witness interest with right to cross examine.
- Right of a witness to be protected from improper questioning must be balanced against the right of parties to a thorough and sifting cross-examination. White v. Knapp, 31 Ga. App. 344, 120 S.E. 796 (1923) (decided under former Civil Code 1910, § 5870); Cohen v. Saffer, 43 Ga. App. 746, 160 S.E. 130 (1931); Loomis v. State, 78 Ga. App. 153, 51 S.E.2d 13 (1948) (decided under former Civil Code 1910, § 5870); Thomas v. State, 85 Ga. App. 868, 70 S.E.2d 131 (1952); Cochran v. Neely, 123 Ga. App. 500, 181 S.E.2d 511 (1971) (decided under former Code 1933, § 38-1704); Wanzer v. State, 232 Ga. 523, 207 S.E.2d 466 (1974); Crawford v. State, 144 Ga. App. 622, 241 S.E.2d 492 (1978) (decided under former Code 1933, § 38-1704); Stephens v. State, 245 Ga. 835, 268 S.E.2d 330 (1980);(decided under former Code 1933, § 38-1704);(decided under former Code 1933, § 38-1704);overruled on other grounds,(decided under former Code 1933, § 38-1704).
Witness's rights must be balanced with the party's right to a thorough and sifting cross-examination. Carco Supply Co. v. Clem, 194 Ga. App. 566, 391 S.E.2d 134 (1990) (decided under former O.C.G.A. §§ 24-9-62 and24-9-64); Palmer v. Taylor, 215 Ga. App. 546, 451 S.E.2d 486 (1994);(decided under former O.C.G.A. §§ 24-9-62 and24-9-64).
Failure to charge former statute was not error in absence of a timely written request. Wilson v. State, 235 Ga. 470, 219 S.E.2d 756 (1975) (decided under former Code 1933, § 38-1801).
Denial of grandparent's request to appear by telephone.
- In a grandparent visitation matter, the trial court did not abuse the court's discretion in connection with the court's denial of the grandmother's request to appear by telephone, pursuant to O.C.G.A. § 19-9-50(b), because the trial court properly determined that the grandmother was not indigent based on the information provided that the grandmother's monthly income was $4,669. Devlin v. Devlin, 339 Ga. App. 520, 791 S.E.2d 840 (2016).
Use of doll for demonstration.
- Trial court did not abuse the court's discretion in allowing the medical examiner to use a baby doll to demonstrate how some of the victim's injuries appeared to have been inflicted and the amount of force that would have been required to cause the victim's head and neck injuries. Smith v. State, 299 Ga. 424, 788 S.E.2d 433 (2016).
Cited in Lupoe v. State, 300 Ga. 233, 794 S.E.2d 67 (2016); Rickman v. State, 304 Ga. 61, 816 S.E.2d 4 (2018).
Cross Examination
Purpose of cross-examination is to provide a searching test of the intelligence, memory, accuracy, and veracity of the witness, and it is better for cross-examination to be too free than too restricted. Carroll v. Hill, 80 Ga. App. 576, 56 S.E.2d 821 (1949) (decided under former Code 1933, § 38-1705); Russell v. Bass, 82 Ga. App. 659, 62 S.E.2d 456 (1950); Sammons v. Webb, 86 Ga. App. 382, 71 S.E.2d 832 (1952) (decided under former Code 1933, § 38-1705); Ledford v. State, 89 Ga. App. 683, 80 S.E.2d 828 (1954);(decided under former Code 1933, § 38-1705);(decided under former Code 1933, § 38-1705).
General rule favors freedom.
- As a general rule, it is better that cross-examination should be too free than too restricted. Cochran v. Neely, 123 Ga. App. 500, 181 S.E.2d 511 (1971) (decided under former Code 1933, § 38-1704).
Exposure of blundering witness.
- There must be allowed some degree of skill, if not sharpness, in conducting cross-examinations because a witness, however fair and honest and truthful, may not be careful enough; and it is to the interest of justice to expose the blundering of a witness, as well as the witness's willful departures from veracity. Loomis v. State, 78 Ga. App. 153, 51 S.E.2d 13 (1948) (decided under former Code 1933, § 38-1705).
Exposure of a witness's motivation in testifying is a proper and important function of the constitutionally protected right of cross-examination. Hines v. State, 249 Ga. 257, 290 S.E.2d 911 (1982) (decided under former O.C.G.A. § 24-9-64).
State's right to cross-examine.
- State, like any other party, has the right to conduct a thorough and sifting cross-examination of a witness. Gentry v. State, 226 Ga. App. 216, 485 S.E.2d 824 (1997) (decided under former O.C.G.A. § 24-9-64).
More than one party examining witness.
- Appellate court will not interfere with the action of the trial judge in allowing "double" or "multiple" cross-examination of witnesses, particularly in a situation involving more than two parties, absent a showing of manifest abuse of discretion. Smith v. Poteet, 127 Ga. App. 735, 195 S.E.2d 213 (1972) (decided under former Code 1933, § 38-1705).
Second sentence, applicable in cases when there is more than one party on one side, requires only that those parties have "distinct interests," not necessarily opposing interests. Lavender v. Wilkins, 237 Ga. 510, 228 S.E.2d 888 (1976) (decided under former Code 1933, § 38-1705).
Depositions.
- When a witness is examined by commission, the party cross-examining may withdraw the party's cross questions if the party chooses - the other party having the liberty to read them at that party's option. Williams v. C. & G.H. Kelsey & Halsted, 6 Ga. 365 (1849) (decided under former law).
Prior thorough cross-examination of a witness unavailable at a trial.
- When the preliminary hearing testimony of an unavailable witness is subject to extensive cross-examination, its admission at trial does not abridge the defendant's right of cross-examination. Moody v. State, 273 Ga. 24, 537 S.E.2d 666 (2000) (decided under former O.C.G.A. § 24-9-64).
Ex parte affidavits should not be allowed in evidence in any trial since the evidence is finally adjudicated because admission denies the privilege of cross-examination. Camp v. Camp, 213 Ga. 65, 97 S.E.2d 125 (1957) (decided under former Code 1933, § 38-1705); Hunsucker v. Balkcom, 220 Ga. 73, 137 S.E.2d 43 (1964); Hartley v. Caldwell, 233 Ga. 333, 155 S.E.2d 389 (1967) (decided under former Code 1933, § 38-1705);(decided under former Code 1933, § 38-1705).
Records in regular course of business.
- Trial courts of the state may not consider reports of the welfare departments of the counties in the trial of a case involving the custody of minors, and it is reversible error to consider such matter. Rather, the person or persons who made the investigation should be produced in court and submitted to cross-examination. Camp v. Camp, 213 Ga. 65, 97 S.E.2d 125 (1957) (decided under former Code 1933, § 38-1705).
Ga. L. 1952, p. 177, §§ 1-3 (see now O.C.G.A. § 24-8-803) did not authorize the admission of a written record without cross-examination of the author under former Code 1933, § 38-1705. Knudsen v. Duffee-Freeman, Inc., 95 Ga. App. 872, 99 S.E.2d 370 (1957) (decided under former Code 1933, § 38-1705).
Former statute set forth the right of every party to cross-examination, thorough and sifting, of the witnesses called against that party, and a trial court's consideration of an ex parte report submitted by a psychiatrist of the psychiatrist's evaluation of defendant denied the defendant of this right. Rudd v. State, 150 Ga. App. 255, 257 S.E.2d 348 (1979) (decided under former Code 1933, § 38-1705).
Interrogatory procedure wherein a plaintiff propounded interrogatories to be answered by the plaintiff, with both the defendant and defendant's counsel excluded, thus denying the defendant the right to cross-examination, is wholly void. Reynolds v. Reynolds, 217 Ga. 234, 123 S.E.2d 115 (1961), overruled on other grounds, Scherer v. Scherer, 249 Ga. 635, 292 S.E.2d 662 (1982) (decided under former Code 1933, § 38-1705).
Assignment of error.
- Rule that a party who complains of the rejection of oral testimony must show that the court was informed as to what the witness would answer does not apply to cross-examination. Macon Union Coop. Ass'n v. Chance, 31 Ga. App. 636, 122 S.E. 66 (1924) (decided under former Civil Code 1910, § 5871); City of La Grange v. Pound, 50 Ga. App. 219, 177 S.E. 762 (1934); McKoy v. Enterkin, 181 Ga. 447, 182 S.E. 518 (1935) (decided under former Code 1933, § 38-1705); Harrison v. Regents of Univ. Sys., 99 Ga. App. 762, 109 S.E.2d 854 (1959); Cambron v. Canal Ins. Co., 246 Ga. 147, 269 S.E.2d 426 (1980), overruled on other grounds, Wright v. Young, 297 Ga. 683, 777 S.E.2d 475 (2015) (decided under former Code 1933, § 38-1705);(decided under former Code 1933, § 38-1705);(decided under former Code 1933, § 38-1705).
State's cross-examination of defendant's spouse does not put the defendant's character in evidence. There is no prejudice to the defendant arising from such cross-examination; thus, no rebuke of the district attorney, instruction of the jury, or mistrial is required. Beasley v. State, 168 Ga. App. 255, 308 S.E.2d 560 (1983) (decided under former O.C.G.A. § 24-9-64).
Allowing witness not within purview of former statute to be called for purposes of cross-examination was harmful error. Mullis v. Chaika, 118 Ga. App. 11, 162 S.E.2d 448 (1968) (decided under former Code 1933, § 38-1801); Jackson v. State, 124 Ga. App. 488, 184 S.E.2d 185 (1971);(decided under former Code 1933, § 38-1801).
Limitation on cross examination of witness regarding victim's criminal past.- The transcript showed that, given the questions posed by the defendant, the jury had sufficient information to make a discriminating appraisal of the witness's credibility and the basis for the witness's opinion of the victim's character trait for peacefulness; the trial court did not abuse the court's discretion when the court disallowed the defendant's cross-examination concerning the victim's 1992 conviction for robbery by intimidation. Griffin v. State, Ga. , S.E.2d (Sept. 28, 2020).
Right of Cross-Examination
In general.
- Right of cross-examination is a substantial right, the preservation of which is essential to a proper administration of justice, and extends to all matters within the knowledge of the witness, the disclosure of which is material to the controversy; and being a substantial right, it should never be abridged or denied by the court. Lunday v. Thomas, 26 Ga. 537 (1858) (decided under former law); News Publishing Co. v. Butler, 95 Ga. 559, 22 S.E. 282 (1895); Barnwell v. Hannegan, 105 Ga. 396, 31 S.E. 116 (1898) (decided under former Code 1882, § 3864); Huff v. State, 106 Ga. 432, 32 S.E. 348 (1899); Atlanta & B. Air-Line Ry. v. McManus, 1 Ga. App. 302, 58 S.E. 258 (1907) (decided under former Civil Code 1895, § 5282); Becker v. Donalson, 133 Ga. 864, 67 S.E. 92 (1910); Brundage v. State, 14 Ga. App. 460, 81 S.E. 384 (1914) (decided under former Penal Code 1895, § 1018); Faulk v. State, 47 Ga. App. 804, 171 S.E. 570 (1933); Herndon v. State, 178 Ga. 832, 174 S.E. 597 (1934) (decided under former Civil Code 1895, § 5282); 295 U.S. 441, 55 S. Ct. 794, 79 L. Ed. 1530 (1935); McGinty v. State, 59 Ga. App. 675, 2 S.E.2d 134 (1939) (decided under former Civil Code 1910, § 5871); Owens v. Shugart, 61 Ga. App. 177, 6 S.E.2d 121 (1939); Smith v. Davis, 76 Ga. App. 154, 45 S.E.2d 237 (1947) (decided under former Penal Code 1910, § 1044); Frady v. State, 212 Ga. 84, 90 S.E.2d 664 (1955); Pittman v. West, 95 Ga. App. 149, 97 S.E.2d 387 (1957) (decided under former Penal Code 1910, § 1044); Reynolds v. Reynolds, 217 Ga. 234, 123 S.E.2d 115 (1961); Salisbury v. State, 222 Ga. 549, 150 S.E.2d 819 (1966), appeal dismissed, Gunnells v. Cotton States Mut. Ins. Co., 117 Ga. App. 123, 159 S.E.2d 730 (1968) (decided under former Code 1933, § 38-1705); Miller v. Smith, 302 F. Supp. 385 (N.D. Ga. 1968); Boyles v. State, 120 Ga. App. 852, 172 S.E.2d 637 (1969) (decided under former Code 1933, § 38-1705); Georgia Power Co. v. Sinclair, 122 Ga. App. 305, 176 S.E.2d 639 (1970); Metts v. Easters, 229 Ga. 754, 194 S.E.2d 450 (1972) (decided under former Code 1933, § 38-1705); Smith v. Poteet, 127 Ga. App. 735, 195 S.E.2d 213 (1972); Geiger v. State, 129 Ga. App. 488, 199 S.E.2d 861 (1973) (decided under former Code 1933, § 38-1705); Gordon v. Gordon, 133 Ga. App. 520, 211 S.E.2d 374 (1974); Jones v. State, 135 Ga. App. 893, 219 S.E.2d 585 (1975) (decided under former Code 1933, § 38-1705); Johnson v. State, 137 Ga. App. 308, 223 S.E.2d 500 (1976); Hudson v. State, 137 Ga. App. 439, 224 S.E.2d 48 (1976) (decided under former Code 1933, § 38-1705); Hornsby v. State, 139 Ga. App. 254, 228 S.E.2d 152 (1976); Fair v. State, 140 Ga. App. 281, 231 S.E.2d 1 (1976) (decided under former Code 1933, § 38-1705); Birge v. State, 143 Ga. App. 632, 239 S.E.2d 395 (1977); Bramblett v. State, 139 Ga. App. 745, 229 S.E.2d 484 (1976) (decided under former Code 1933, § 38-1705); 239 Ga. 336, 236 S.E.2d 580 (1977); 434 U.S. 1013, 98 S. Ct. 728, 54 L. Ed. 2d 757 (1978) (decided under former Code 1933, § 38-1705); Crawford v. State, 144 Ga. App. 622, 241 S.E.2d 492 (1978); Goldgar v. Galbraith, 155 Ga. App. 429, 270 S.E.2d 833 (1980) (decided under former Code 1933, § 38-1705); Miller v. State, 155 Ga. App. 587, 271 S.E.2d 719 (1980);(decided under former Code 1933, § 38-1705);(decided under former Code 1933, § 38-1705);(decided under former Code 1933, § 38-1705);(decided under former Code 1933, § 38-1705);(decided under former Code 1933, § 38-1705);(decided under former Code 1933, § 38-1705);(decided under former Code 1933, § 38-1705);(decided under former Code 1933, § 38-1705);(decided under former Code 1933, § 38-1705);(decided under former Code 1933, § 38-1705);(decided under former Code 1933, § 38-1705);(decided under former Code 1933, § 38-1705);aff'd,cert. denied,(decided under former Code 1933, § 38-1705);(decided under former Code 1933, § 38-1705);(decided under former Code 1933, § 38-1705);(decided under former Code 1933, § 38-1705).
When a witness is sworn by one party, the other party has the right to cross-examine the witness at large. Lunday v. Thomas, 26 Ga. 537 (1858) (decided under former law); Brown v. State, 28 Ga. 199 (1859); McRae v. Boykin, 50 Ga. App. 866, 179 S.E. 535 (1935) (decided under former law); 182 Ga. 252, 185 S.E. 246 (1936);rev'd on other grounds,(decided under former Code 1933, § 38-1705).
Although the defendant's plea had been stricken, and although the defendant had no right to introduce any evidence, yet when the plaintiff, in order to make out plaintiff's case and secure a verdict, found it necessary to impanel a jury and to introduce witnesses to testify to facts not appearing on the face of the notes sued upon, the defendant, through defense counsel, had a right to cross-examine the witnesses. Daniel v. Georgia R.R. Bank, 44 Ga. App. 787, 163 S.E. 311 (1932) (decided under former Civil Code 1910, § 5871).
Although the scope of the cross-examination is not unlimited, every party has a right to a thorough and sifting cross-examination of opposing witnesses, the scope of which examination rests largely within the discretion of the trial judge. Jackson v. State, 157 Ga. App. 604, 278 S.E.2d 5 (1981) (decided under former Code 1933, § 38-1705).
Party has the right to a thorough and sifting cross-examination of the witnesses called against the party and, usually, to conduct that examination by use of leading questions. Castell v. State, 250 Ga. 776, 301 S.E.2d 234 (1983), aff'd, 252 Ga. 418, 314 S.E.2d 210, cert. denied, 469 U.S. 873, 105 S. Ct. 230, 83 L. Ed. 2d 159 (1984) (decided under former O.C.G.A. § 24-9-64).
Witness's rights under former O.C.G.A. § 24-9-62 (see now O.C.G.A. §§ 24-6-611 and24-6-623) must be balanced with the party's right under former O.C.G.A. § 24-9-64 to a thorough and sifting cross-examination. Carco Supply Co. v. Clem, 194 Ga. App. 566, 391 S.E.2d 134 (1990) (decided under former O.C.G.A. § 24-9-64); Palmer v. Taylor, 215 Ga. App. 546, 451 S.E.2d 486 (1994);(decided under former O.C.G.A. § 24-9-64).
Child witness's unresponsiveness to a number of questions as put by defendant did not constitute a deprivation of defendant's constitutional confrontation right so as to require that the witness's out-of-court statements be stricken since the defendant was not denied the right to a thorough and sifting cross-examination of a witness who appeared to answer as well as the witness was capable of answering. Bright v. State, 197 Ga. App. 784, 400 S.E.2d 18 (1990) (decided under former O.C.G.A. § 24-9-64).
Trial court committed plain error by improperly bolstering the victims' credibility when the judge asked a witness specific questions regarding the victims, in violation of O.C.G.A. § 17-8-57, and the error was compounded when the trial court denied defendant the right to cross-examine the witness, pursuant to former O.C.G.A. § 24-9-64, in an attempt to rebut the bolstering of the victims' credibility that was performed by the trial court. Craft v. State, 274 Ga. App. 410, 618 S.E.2d 104 (2005) (decided under former O.C.G.A. § 24-9-64).
Employer entitled to cross-examine in workers' compensation case.
- In a worker's compensation case, the administrative law judge erred in preventing the employer from pursuing the employer's right to a thorough and sifting cross-examination of the claimant because, as a defense, evidence tending to show a motive for malingering was relevant. David Jordan Logging Co. v. Sales, 203 Ga. App. 410, 416 S.E.2d 803, cert. denied, 203 Ga. App. 905, 416 S.E.2d 803 (1992) (decided under former O.C.G.A. § 24-9-64).
Right does not apply to irrelevant information.
- Judgment in favor of the plaintiffs in a medical malpractice action was affirmed; trial court did not prevent defendants from cross-examining plaintiffs' expert as to plaintiff's expert's mental illnesses in violation of former O.C.G.A. § 24-9-64, but only from cross-examining the expert as to a prior suit for disability benefits which was irrelevant. Fredericks v. Hall, 275 Ga. App. 412, 620 S.E.2d 638 (2005) (decided under former O.C.G.A. § 24-9-64).
Reliance of expert on report.
- By giving a report written by the defendant and sent to plaintiff's counsel for "informational purposes" to plaintiff's expert, the defendant violated the agreement between the parties not to use it in the litigation, and reliance on the report by defendant's expert required allowing the plaintiff to cross-examine that expert using the report. Lewis v. Emory Univ., 235 Ga. App. 811, 509 S.E.2d 635 (1998) (decided under former O.C.G.A. § 24-9-64).
No cross-examination when no direct examination.
- Trial court did not err in preventing the defendant from cross-examining the investigating officer about an incriminating statement made by the defendant after the state introduced evidence concerning the statement. former O.C.G.A. § 24-3-38 (see now O.C.G.A. § 24-8-822) ("When an admission is given in evidence by one party, it shall be the right of the other party to have the whole admission and all the conversation connected therewith admitted into evidence") and former O.C.G.A. § 24-9-64 were inapplicable because there had been no direct examination relating to any part of the statement by the state. Davis v. State, 261 Ga. 382, 405 S.E.2d 648 (1991) (decided under former O.C.G.A. § 24-9-64).
Designation of witness as hostile.
- It was not error for trial judge to refuse to permit the defendant to have a police officer designated a hostile witness so that the officer could be called as a witness for cross-examination, when it was not shown that the witness was hostile; and when it appeared from the record that counsel was allowed to ask leading questions substantially identical to the question counsel complained was not permitted. Williams v. State, 164 Ga. App. 562, 298 S.E.2d 282 (1982) (decided under former O.C.G.A. § 24-9-64).
Limiting cross-examination of victim was abuse of discretion.
- By cutting off inquiry of the victim with respect to the victim's gang membership (or lack thereof) or whether a facial tattoo reflected such membership, the trial court prevented the defendant from exposing to the jury the facts from which jurors, as the sole triers of fact and credibility, could appropriately draw inferences relating to the reliability of the victim and, thus, the trial court abused the court's discretion in limiting the defendant's cross-examination of the victim. Williams v. State, Ga. App. , 846 S.E.2d 190 (2020).
New trial for denial of right.
- Substantial denial of the right of cross-examination is good cause for the grant of a new trial. Hall v. State, 117 Ga. 263, 43 S.E. 718 (1903) (decided under former Penal Code 1895, § 1018); Becker v. Donalson, 133 Ga. 864, 67 S.E. 92 (1910); McRae v. Boykin, 50 Ga. App. 866, 179 S.E. 535 (1935) (decided under former Civil Code 1910, § 5871); 182 Ga. 252, 185 S.E. 246 (1936); Thompson v. State, 181 Ga. 620, 183 S.E. 566 (1936), rev'd on other grounds, Clifton v. State, 187 Ga. 502, 2 S.E.2d 102 (1939) (decided under former Code 1933, § 38-1705); Corley v. State, 64 Ga. App. 841, 14 S.E.2d 121 (1941); Cameron v. State, 66 Ga. App. 414, 18 S.E.2d 16 (1941) (decided under former Code 1933, § 38-1705); Pulliam v. State, 196 Ga. 782, 28 S.E.2d 139 (1943); Hyde v. State, 70 Ga. App. 823, 29 S.E.2d 820 (1944) (decided under former Code 1933, § 38-1705); Smith v. Davis, 76 Ga. App. 154, 45 S.E.2d 237 (1947); Loomis v. State, 78 Ga. App. 153, 51 S.E.2d 13 (1948) (decided under former Code 1933, § 38-1705); Western & Atl. R.R. v. Burnett, 79 Ga. App. 530, 54 S.E.2d 357 (1949); Russell v. Bass, 82 Ga. App. 659, 62 S.E.2d 456 (1950) (decided under former Code 1933, § 38-1705); Griffin v. State, 85 Ga. App. 602, 69 S.E.2d 665 (1952); Chambers v. State, 88 Ga. App. 57, 76 S.E.2d 84 (1953) (decided under former Code 1933, § 38-1705); Harrison v. Regents of Univ. Sys., 99 Ga. App. 762, 109 S.E.2d 854 (1959); Sutton v. State Hwy. Dep't, 103 Ga. App. 29, 118 S.E.2d 285 (1961) (decided under former Code 1933, § 38-1705); Morris v. State, 150 Ga. App. 94, 256 S.E.2d 674 (1979);(decided under former Code 1933, § 38-1705);(decided under former Code 1933, § 38-1705);(decided under former Code 1933, § 38-1705);(decided under former Code 1933, § 38-1705);(decided under former Code 1933, § 38-1705);(decided under former Code 1933, § 38-1705);(decided under former Code 1933, § 38-1705);(decided under former Code 1933, § 38-1705);(decided under former Code 1933, § 38-1705).
Motion for new trial was not granted when defendant learned after the trial that a witness who testified at trial but was not cross-examined had information of value to defendant's case. Hall v. State, 117 Ga. 263, 43 S.E. 718 (1903) (decided under former Penal Code 1895, § 1018).
Curing refusal to allow cross-examination.
- Error in refusing to allow defendant to cross-examine a witness is not cured because the witness is subsequently introduced by defendant and examined as to the facts. White v. Dinkins, 19 Ga. 285 (1856) (decided under former law).
Personal examination by defendant.
- Prisoner's rights are not violated if the prisoner is refused the privilege of personally cross-examining a hostile witness after the prisoner has stood by approvingly while the prisoner's counsel has conducted a thorough cross-examination. Roberts v. State, 14 Ga. 8, 58 Am. Dec. 528 (1853) (decided under former law).
Codefendant's cross-examination of witness.
- Trial court's sustaining of an objection by defendant's codefendant to the former's cross-examination of a police officer regarding a prior consistent statement made to the officer did not violate defendant's right to cross-examination since the court indicated that if the defendant testified the defendant could then cross-examine the officer on the statement. Wilson v. State, 227 Ga. App. 59, 488 S.E.2d 121 (1997) (decided under former O.C.G.A. § 24-9-64).
Court's interjection did not violate right.- Defendant's claim that the trial court's interjections interfered with the defendant's Sixth Amendment right to confrontation and the defendant's statutory right to a thorough and sifting cross-examination failed because the interjections did not hinder the defendant's attempts to test a witness's credibility and, thus, did not amount to an abuse of discretion. Barton-Smith v. State, Ga. , S.E.2d (Sept. 8, 2020).
Right to subpoena crime lab work product.
- Broad right of cross-examination afforded by former O.C.G.A. § 24-9-64 allowed a defendant the right to subpoena data relied upon by the state crime lab chemist, including graphs generated from gas chromatography. Price v. State, 269 Ga. 222, 498 S.E.2d 262 (1998), recons. denied; overruled on other grounds by State v. Turnquest, 305 Ga. 758, 827 S.E.2d 865 (2019) (decided under former O.C.G.A. § 24-9-64).
Calling witnesses.
- It does not abridge the defendant's right of confrontation and cross-examination for the court to refuse to require the state to summon a witness not relied on by the state to make out its case before the jury as a witness. Bonds v. State, 232 Ga. 694, 208 S.E.2d 561 (1974) (decided under former Code 1933, § 38-1705).
Witness not called to testify.
- Trial court did not err in refusing to allow the defendant to cross-examine an officer who was present when the defendant made defendant's incriminating statement since this witness was not called to testify and did not present any direct testimony against the defendant. Billings v. State, 212 Ga. App. 125, 441 S.E.2d 262 (1994) (decided under former O.C.G.A. § 24-9-64).
Opposite party.
- Defendant in a criminal case may be cross-examined with defendant's consent, but if defendant offers oneself for cross-examination there is no obligation upon the prosecution to conduct it. Roberson v. State, 12 Ga. App. 102, 76 S.E. 752 (1912) (decided under former Penal Code 1910, § 1044); Jones v. State, 18 Ga. App. 285, 89 S.E. 303 (1916);(decided under former Penal Code 1910, § 1044).
When counsel for the plaintiff calls defendant as a witness against oneself in order to prove only one point, the law permits the counsel for defendant to cross-examine the client. National Land & Coal Co. v. Zugar, 171 Ga. 228, 155 S.E. 7 (1930) (decided under former Civil Code 1910, § 5871).
When a party to a suit calls the opposing party to the stand as a witness, it is within the discretion of the judge to refuse to prohibit the counsel for the opposing party from asking leading questions on cross-examination, and the fact that the court allowed the cross-questions complained of does not show such abuse of discretion as to authorize the grant of a new trial. Akridge v. Atlanta Journal Co., 56 Ga. App. 812, 194 S.E. 590 (1937) (decided under former Code 1933, § 38-1705).
Right of cross-examination of the opposite party does not include the right to require that party's presence in court, and such party may not be compelled to attend court except in the manner as other witnesses are required to attend court by subpoena. Johnston v. Dollar, 89 Ga. App. 876, 81 S.E.2d 502 (1954) (decided under former Code 1933, § 38-1705).
Right to cross examine guardian ad litem.
- Trial court erred in depriving one parent and grandparent of the opportunity to question the guardian ad litem regarding the results of an investigation as the burden was theirs to establish that the child would be harmed if returned to the other parent and that it was in the best interest of the child to remain with the grandparent. Thus, the trial court's order deprived them of the opportunity to establish facts in support of their position that the child should remain in the grandparent's custody. Simmons v. Williams, 290 Ga. App. 644, 660 S.E.2d 435 (2008) (decided under former O.C.G.A. § 24-9-64).
Pro se defendant not prohibited from cross examining victim.
- Trial court abused the court's discretion in a family violence protective order proceeding by prohibiting the defendant from cross-examining the victim because O.C.G.A. § 15-19-51 did not prohibit an individual proceeding pro se from representing themselves and employing their right to a thorough and sifting cross-examination of a witness called against them. Jha v. Menkee, 352 Ga. App. 81, 833 S.E.2d 759 (2019).
Admission of hearsay evidence violates right to cross-examination.
- When officer testified that witness told the officer that the defendant had sold the witness drugs, this hearsay evidence was improperly admitted and deprived defendant of the right to cross-examination. Welch v. State, 231 Ga. App. 74, 498 S.E.2d 555 (1998) (decided under former O.C.G.A. § 24-9-64).
Hearsay evidence.
- Excluding testimony that was purely hearsay did not deny the right of a thorough and sifting cross-examination. Bell v. State, 71 Ga. App. 430, 31 S.E.2d 109 (1944) (decided under former Code 1933, § 38-1705).
Scope of Cross-Examination
1. In General
Thorough and sifting cross-examination.
- Right of thorough and sifting cross-examination extends to all matters within the knowledge of the witness, the disclosure of which is material to the controversy. Huff v. State, 106 Ga. 432, 32 S.E. 348 (1899) (decided under former Penal Code 1895, § 1018); White v. State, 121 Ga. 191, 48 S.E. 941 (1904); Hagood v. State, 5 Ga. App. 80, 62 S.E. 641 (1908) (decided under former Penal Code 1895, § 1018); Hart v. State, 14 Ga. App. 364, 80 S.E. 909 (1913); Richards v. Harpe, 42 Ga. App. 123, 155 S.E. 85 (1930) (decided under former Penal Code 1895, § 1018); Faulk v. State, 47 Ga. App. 804, 171 S.E. 570 (1933); Williamson, Inman & Co. v. Thompson, 50 Ga. App. 564, 179 S.E. 289 (1935) (decided under former Penal Code 1910, § 1044); McRae v. Boykin, 50 Ga. App. 866, 179 S.E. 535 (1935); 182 Ga. 252, 185 S.E. 246 (1936) (decided under former Civil Code 1910, § 5871); McGinty v. State, 59 Ga. App. 675, 2 S.E.2d 134 (1939); Mickle v. Moore, 188 Ga. 444, 4 S.E.2d 217 (1939) (decided under former Code 1933, § 38-1705); Owens v. Shugart, 61 Ga. App. 177, 6 S.E.2d 121 (1939); Pulliam v. State, 196 Ga. 782, 28 S.E.2d 139 (1943) (decided under former Code 1933, § 38-1705); First Nat'l Bank v. Carmichael, 198 Ga. 309, 31 S.E.2d 811 (1944); Smith v. Davis, 76 Ga. App. 154, 45 S.E.2d 237 (1947), rev'd on other grounds, Griffin v. State, 85 Ga. App. 602, 69 S.E.2d 665 (1952) (decided under former Code 1933, § 38-1705); Thomas v. State, 85 Ga. App. 868, 70 S.E.2d 131 (1952); Evans v. State, 210 Ga. 375, 80 S.E.2d 157 (1954) (decided under former Code 1933, § 38-1705); Ledford v. State, 89 Ga. App. 683, 80 S.E.2d 828 (1954); Morgan v. State, 211 Ga. 172, 84 S.E.2d 365 (1954) (decided under former Code 1933, § 38-1705); Rooker v. State, 211 Ga. 361, 86 S.E.2d 307 (1955); Frady v. State, 212 Ga. 84, 90 S.E.2d 664 (1955) (decided under former Code 1933, § 38-1705); Faircloth v. State, 95 Ga. App. 265, 97 S.E.2d 641 (1957); Bass v. Bass, 222 Ga. 378, 149 S.E.2d 818 (1966) (decided under former Code 1933, § 38-1705); Sullivan v. State, 222 Ga. 691, 152 S.E.2d 382 (1966); Millhollan v. Watkins Motor Lines, 116 Ga. App. 452, 157 S.E.2d 901 (1967) (decided under former Code 1933, § 38-1705); Miller v. Smith, 302 F. Supp. 385 (N.D. Ga. 1968); State Hwy. Dep't v. Owens, 120 Ga. App. 647, 171 S.E.2d 770 (1969) (decided under former Code 1933, § 38-1705); Boyles v. State, 120 Ga. App. 852, 172 S.E.2d 637 (1969); Georgia Power Co. v. Sinclair, 122 Ga. App. 305, 176 S.E.2d 639 (1970) (decided under former Code 1933, § 38-1705); Locke v. State, 229 Ga. 110, 189 S.E.2d 410 (1972); Saks Fifth Ave. v. Edwards, 128 Ga. App. 380, 196 S.E.2d 879 (1973) (decided under former Code 1933, § 38-1705); Geiger v. State, 129 Ga. App. 488, 199 S.E.2d 861 (1973); Casey v. State, 133 Ga. App. 161, 210 S.E.2d 375 (1974) (decided under former Code 1933, § 38-1705); Gordon v. Gordon, 133 Ga. App. 520, 211 S.E.2d 374 (1974); Luke v. McGuire Ins. Agency of Ga., Inc., 133 Ga. App. 948, 212 S.E.2d 889 (1975) (decided under former Code 1933, § 38-1705); Hobbs v. State, 134 Ga. App. 850, 216 S.E.2d 674 (1975); Jones v. State, 135 Ga. App. 893, 219 S.E.2d 585 (1975) (decided under former Code 1933, § 38-1705); Hudson v. State, 137 Ga. App. 439, 224 S.E.2d 48 (1976); Hornsby v. State, 139 Ga. App. 254, 228 S.E.2d 152 (1976) (decided under former Code 1933, § 38-1705); Fair v. State, 140 Ga. App. 281, 231 S.E.2d 1 (1976); Southwire Co. v. Department of Transp., 147 Ga. App. 606, 249 S.E.2d 650 (1978) (decided under former Code 1933, § 38-1705); Canady v. State, 147 Ga. App. 640, 249 S.E.2d 690 (1978); Williams v. Ricks, 152 Ga. App. 555, 263 S.E.2d 457 (1979) (decided under former Code 1933, § 38-1705); Henderson v. State, 153 Ga. App. 801, 266 S.E.2d 522 (1980); Crawford v. State, 154 Ga. App. 362, 268 S.E.2d 414 (1980) (decided under former Code 1933, § 38-1705); Goldgar v. Galbraith, 155 Ga. App. 429, 270 S.E.2d 833 (1980); Plemons v. State, 155 Ga. App. 447, 270 S.E.2d 836 (1980) (decided under former Code 1933, § 38-1705); Cofield v. State, 247 Ga. 98, 274 S.E.2d 530 (1981); McDaniel v. DOT, 200 Ga. App. 674, 409 S.E.2d 552 (1991) (decided under former Code 1933, § 38-1705); Sawyers v. State, 211 Ga. App. 668, 440 S.E.2d 256 (1994); Kier v. State, 247 Ga. App. 431, 543 S.E.2d 801 (2000) (decided under former Code 1933, § 38-1705);(decided under former Code 1933, § 38-1705);(decided under former Code 1933, § 38-1705);(decided under former Code 1933, § 38-1705);(decided under former Code 1933, § 38-1705);(decided under former Code 1933, § 38-1705);(decided under former Code 1933, § 38-1705);(decided under former Code 1933, § 38-1705);(decided under former Code 1933, § 38-1705);(decided under former Code 1933, § 38-1705);(decided under former Code 1933, § 38-1705);(decided under former Code 1933, § 38-1705);(decided under former Code 1933, § 38-1705);(decided under former Code 1933, § 38-1705);(decided under former Code 1933, § 38-1705);(decided under former Code 1933, § 38-1705);(decided under former Code 1933, § 38-1705);(decided under former Code 1933, § 38-1705);(decided under former Code 1933, § 38-1705);(decided under former Code 1933, § 38-1705);(decided under former Code 1933, § 38-1705);(decided under former Code 1933, § 38-1705);(decided under former Code 1933, § 38-1705);(decided under former O.C.G.A. § 24-9-64);(decided under former O.C.G.A. § 24-9-64);(decided under former O.C.G.A. § 24-9-64).
When one side calls and examines a witness, though only on a single point, the other has the right to cross-examine the witness on every point. Dawson v. Callaway, 18 Ga. 573 (1855) (decided under former law); Aiken v. Cato, 23 Ga. 154 (1857); News Publishing Co. v. Butler, 95 Ga. 559, 22 S.E. 282 (1895) (decided under former law); National Land & Coal Co. v. Zugar, 171 Ga. 228, 155 S.E. 7 (1930); McRae v. Boykin, 50 Ga. App. 866, 179 S.E. 535 (1935) (decided under former Code 1882, § 3864); 182 Ga. 252, 185 S.E. 246 (1936);(decided under former Civil Code 1910, § 5871);rev'd on other grounds,(decided under former Code 1933, § 38-1705).
Right of cross examination is a substantial right, the preservation of which is essential to the proper administration of justice and extends to all matters within the knowledge of the witness, the disclosure of which is material to the controversy; this right should not be abridged. James v. State, 260 Ga. App. 536, 580 S.E.2d 334 (2003) (decided under former O.C.G.A. § 24-9-64).
Right not unlimited.
- Although it is true that the right to a thorough and sifting cross-examination may not be abridged, that right is not unlimited. Anderson v. State, 165 Ga. App. 885, 303 S.E.2d 57 (1983), rev'd on other grounds, 252 Ga. 103, 312 S.E.2d 113 (1984) (decided under former O.C.G.A. § 24-9-64).
Court did not improperly restrict defendant's right of cross-examination of a state's witness since the testimony sought to be elicited would have been cumulative of other testimony. Gaither v. State, 259 Ga. 200, 378 S.E.2d 464 (1989) (decided under former O.C.G.A. § 24-9-64).
Victim's probation status improperly examined.
- Trial court did not abuse the court's discretion in limiting the scope of defendant's cross-examination of the alleged crime victim to exclude questioning the victim as to the victim's probation status. Bogan v. State, 206 Ga. App. 696, 426 S.E.2d 392 (1992) (decided under former O.C.G.A. § 24-9-64).
Inquiry into domestic dispute disallowed in kidnapping case.
- Trial court properly restricted defendant's cross-examination of wife's alleged affair as the cause of the couple's separation was not relevant to the issues before the jury. Williams v. State, 207 Ga. App. 371, 427 S.E.2d 846 (1993) (decided under former O.C.G.A. § 24-9-64).
Limiting examination to relevant matters by proper questioning.
- Right of cross-examination is not abridged when examination is limited by trial court to relevant matters by proper questioning. Johnson v. State, 158 Ga. App. 333, 280 S.E.2d 379 (1981) (decided under former Code 1933, § 38-1705); Palmer v. State, 186 Ga. App. 892, 369 S.E.2d 38; 186 Ga. App. 918, 369 S.E.2d 38 (1988), cert. denied, Mitchell v. State, 200 Ga. App. 146, 407 S.E.2d 115 (1991) (decided under former O.C.G.A. § 24-9-64);(decided under former O.C.G.A. § 24-9-64).
Cross-examination covers relevant subjects and not just matters elicited on direct examination.
- Right of cross-examination in Georgia includes questioning a witness about subjects relevant to any of the issues in the case, not simply those matters elicited on direct examination. James v. State, 260 Ga. App. 536, 580 S.E.2d 334 (2003) (decided under former O.C.G.A. § 24-9-64).
Privilege.
- Right of cross-examination must be tempered and restricted so as not to infringe on privileged areas. Hornsby v. State, 139 Ga. App. 254, 228 S.E.2d 152 (1976) (decided under former Code 1933, § 38-1705).
Redirect examination.
- Whether or not new matter is introduced on redirect and even though no reason shown why, through inadvertence or mistake, certain questions have been omitted, it is entirely within the discretion of the trial judge to permit further examination by either side. King v. Thompson, 59 Ga. 380 (1877) (decided under former Code 1873, § 3864); Faulk v. State, 47 Ga. App. 804, 171 S.E. 570 (1933);(decided under former Penal Code 1910, § 1044).
Redirect examination and recross are, strictly speaking, not for the purpose of introducing new matter, but the judge in the judge's discretion may permit the questioner to inquire about something which the judge should have asked about during an earlier step but which was overlooked. Goodrum v. State, 158 Ga. App. 602, 281 S.E.2d 254 (1981) (decided under former Code 1933, § 38-1705).
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).
Documents.
- When the relevancy of documents which may be used as evidence appears, it is error to unduly restrict the cross-examination relating to such documents. Ledford v. State, 89 Ga. App. 683, 80 S.E.2d 828 (1954) (decided under former Code 1933, § 38-1705); Snelling v. State, 215 Ga. App. 263, 450 S.E.2d 299 (1994);(decided under former O.C.G.A. § 24-9-64).
Prior drug sales.
- Trial court did not err in permitting cross-examination of the defendant regarding prior drug sales held admissible to prove identity. Nuckles v. State, 207 Ga. App. 63, 427 S.E.2d 54 (1993) (decided under former O.C.G.A. § 24-9-64).
Conduct exceeding authorized scope.
- Conduct of defense counsel exceeded the authorized scope of cross-examination after counsel injected independent non-testimonial evidence by lifting defendant's shirt to show defendant's body brace. State v. Battaglia, 221 Ga. App. 283, 470 S.E.2d 755 (1996) (decided under former O.C.G.A. § 24-9-64).
2. Discretion of Judge
In general.
- Scope of cross-examination rests largely within the discretion of the trial judge to control this right within reasonable bounds, and this discretion will not be reviewed unless it is abused. Woolfolk v. State, 85 Ga. 69, 11 S.E. 814 (1890) (decided under former Code 1882, § 3864); News Publishing Co. v. Butler, 95 Ga. 559, 22 S.E. 282 (1895); Fouraker v. State, 4 Ga. App. 692, 62 S.E. 116 (1908) (decided under former Code 1882, § 3864); Cohen v. Saffer, 43 Ga. App. 746, 160 S.E. 130 (1931); Fields v. State, 46 Ga. App. 287, 167 S.E. 337 (1932) (decided under former Penal Code 1895, § 1018); Clifton v. State, 187 Ga. 502, 2 S.E.2d 102 (1939); Sweat v. State, 63 Ga. App. 299, 11 S.E.2d 40 (1940) (decided under former Civil Code 1910, § 5871); Corley v. State, 64 Ga. App. 841, 14 S.E.2d 121 (1941); Cameron v. State, 66 Ga. App. 414, 18 S.E.2d 16 (1941) (decided under former Penal Code 1910, § 1044); Pulliam v. State, 196 Ga. 782, 28 S.E.2d 139 (1943); Hyde v. State, 70 Ga. App. 823, 29 S.E.2d 820 (1944) (decided under former Code 1933, § 38-1705); Post v. State, 201 Ga. 81, 39 S.E.2d 1 (1946); Smith v. Davis, 76 Ga. App. 154, 45 S.E.2d 237 (1947) (decided under former Code 1933, § 38-1705); Loomis v. State, 78 Ga. App. 153, 51 S.E.2d 13 (1948); Western & Atl. R.R. v. Burnett, 79 Ga. App. 530, 54 S.E.2d 357 (1949) (decided under former Code 1933, § 38-1705); Owens v. State, 81 Ga. App. 182, 58 S.E.2d 550 (1950); Griffin v. State, 85 Ga. App. 602, 69 S.E.2d 665 (1952) (decided under former Code 1933, § 38-1705); Rozar v. State, 93 Ga. App. 207, 91 S.E.2d 131 (1956); Pittman v. West, 95 Ga. App. 149, 97 S.E.2d 387 (1957) (decided under former Code 1933, § 38-1705); Gordy v. Powell, 95 Ga. App. 822, 99 S.E.2d 313 (1957); Sutton v. State Hwy. Dep't, 103 Ga. App. 29, 118 S.E.2d 285 (1961) (decided under former Code 1933, § 38-1705); Meeks v. Lunsford, 106 Ga. App. 154, 126 S.E.2d 531 (1962); Gravitt v. State, 220 Ga. 781, 141 S.E.2d 893 (1965) (decided under former Code 1933, § 38-1705); Mitchell v. Gay, 111 Ga. App. 867, 143 S.E.2d 568 (1965); Moore v. State, 221 Ga. 636, 146 S.E.2d 895 (1966) (decided under former Code 1933, § 38-1705); Sullivan v. State, 222 Ga. 691, 152 S.E.2d 382 (1966); Miller v. Smith, 302 F. Supp. 385 (N.D. Ga. 1968) (decided under former Code 1933, § 38-1705); Metts v. Easters, 229 Ga. 754, 194 S.E.2d 450 (1972); Goober v. Nix, 128 Ga. App. 578, 197 S.E.2d 486 (1973) (decided under former Code 1933, § 38-1705); Howington v. Puckett, 130 Ga. App. 584, 203 S.E.2d 916 (1974); Weaver v. Georgia Power Co., 134 Ga. App. 696, 215 S.E.2d 503 (1975) (decided under former Code 1933, § 38-1705); Hobbs v. State, 134 Ga. App. 850, 216 S.E.2d 674 (1975); Jones v. State, 135 Ga. App. 893, 219 S.E.2d 585 (1975) (decided under former Code 1933, § 38-1705); Franklin v. State, 136 Ga. App. 47, 220 S.E.2d 60 (1975); Whitley v. State, 137 Ga. App. 68, 223 S.E.2d 17 (1975) (decided under former Code 1933, § 38-1705); Johnson v. State, 137 Ga. App. 308, 223 S.E.2d 500 (1976); Mitchell v. State, 236 Ga. 251, 223 S.E.2d 650 (1976) (decided under former Code 1933, § 38-1705); Hudson v. State, 137 Ga. App. 439, 224 S.E.2d 48 (1976); McCarty v. State, 139 Ga. App. 101, 227 S.E.2d 898 (1976) (decided under former Code 1933, § 38-1705); Hornsby v. State, 139 Ga. App. 254, 228 S.E.2d 152 (1976); Lindsey v. Guhl, 237 Ga. 567, 229 S.E.2d 354 (1976) (decided under former Code 1933, § 38-1705); Birge v. State, 143 Ga. App. 632, 239 S.E.2d 395 (1977); Green v. State, 242 Ga. 261, 249 S.E.2d 1 (1978) (decided under former Code 1933, § 38-1705); Green v. Georgia, 442 U.S. 95, 99 S. Ct. 2150, 60 L. Ed. 2d 738 (1979); Southwire Co. v. Department of Transp., 147 Ga. App. 606, 249 S.E.2d 650 (1978) (decided under former Code 1933, § 38-1705); Canady v. State, 147 Ga. App. 640, 249 S.E.2d 690 (1978); Ruffin v. State, 243 Ga. 95, 252 S.E.2d 472 (1979) (decided under former Code 1933, § 38-1705); Dampier v. State, 245 Ga. 427, 265 S.E.2d 565 (1980); Mullins v. State, 157 Ga. App. 204, 276 S.E.2d 877 (1981) (decided under former Code 1933, § 38-1705); Hines v. State, 160 Ga. App. 546, 287 S.E.2d 584 (1981); Hines v. State, 249 Ga. 257, 290 S.E.2d 911 (1982) (decided under former Code 1933, § 38-1705); Anderson v. State, 165 Ga. App. 885, 303 S.E.2d 57 (1983); 252 Ga. 103, 312 S.E.2d 113 (1984) (decided under former Code 1933, § 38-1705); Price v. State, 179 Ga. App. 691, 347 S.E.2d 365 (1986);(decided under former Code 1933, § 38-1705);(decided under former Code 1933, § 38-1705);(decided under former Code 1933, § 38-1705);(decided under former Code 1933, § 38-1705);(decided under former Code 1933, § 38-1705);(decided under former Code 1933, § 38-1705);(decided under former Code 1933, § 38-1705);(decided under former Code 1933, § 38-1705);(decided under former Code 1933, § 38-1705);(decided under former Code 1933, § 38-1705);(decided under former Code 1933, § 38-1705);(decided under former Code 1933, § 38-1705);(decided under former Code 1933, § 38-1705);(decided under former Code 1933, § 38-1705);(decided under former Code 1933, § 38-1705);rev'd on other grounds sub nom.(decided under former Code 1933, § 38-1705);(decided under former Code 1933, § 38-1705);(decided under former Code 1933, § 38-1705);(decided under former Code 1933, § 38-1705);(decided under former Code 1933, § 38-1705);(decided under former Code 1933, § 38-1705);(decided under former Code 1933, § 38-1705);(decided under former Code 1933, § 38-1705);rev'd on other grounds,(decided under former O.C.G.A. § 24-9-64);(decided under former O.C.G.A. § 24-9-64).
Extent of cross-examination can be curtailed if the inquiry is not relevant or material, and such restriction lies within the discretion of the trial court which will not be disturbed on appeal unless manifestly abused. Fitzgerald v. State, 166 Ga. App. 307, 304 S.E.2d 114 (1983) (decided under former O.C.G.A. § 24-9-64); Opatut v. Guest Pond Club, Inc., 188 Ga. App. 478, 373 S.E.2d 372 (1988); Stevens v. State, 213 Ga. App. 293, 444 S.E.2d 840 (1994) (decided under former O.C.G.A. § 24-9-64);(decided under former O.C.G.A. § 24-9-64).
Although a defendant is entitled to a thorough and sifting cross-examination of a witness, the scope of such cross-examination is within the sound discretion of the trial court. White v. State, 253 Ga. 106, 317 S.E.2d 196 (1984) (decided under former O.C.G.A. § 24-9-64); Scott v. State, 178 Ga. App. 222, 343 S.E.2d 117 (1986);(decided under former O.C.G.A. § 24-9-64).
Scope of cross-examination is within the sound discretion of the trial judge. This discretion will not be disturbed by an appellate court unless manifestly abused. Thomas v. Clark, 188 Ga. App. 606, 373 S.E.2d 668 (1988) (decided under former O.C.G.A. § 24-9-64).
Although a defendant is entitled to a thorough and sifting cross-examination of the state's witnesses, within carefully protected legal parameters, the scope of cross-examination lies within the sound discretion of the trial court and this discretion will not be disturbed by an appellate court absent manifest abuse. There was no error in a trial court's restrictions of cross examination of the victims of sexual abuse relating to whether defendant had molested other children. Pope v. State, 266 Ga. App. 602, 597 S.E.2d 632 (2004) (decided under former O.C.G.A. § 24-9-64).
Scope of cross-examination is not unlimited; the extent necessarily must rest largely within the discretion of the trial judge in order to keep the questioning within reasonable bonds. The extent of cross examination can be curtailed if the inquiry is not relevant nor material. Harris v. State, 168 Ga. App. 159, 308 S.E.2d 406 (1983) (decided under former O.C.G.A. § 24-9-64); Williamson v. State, 186 Ga. App. 589, 367 S.E.2d 863 (1988);(decided under former O.C.G.A. § 24-9-64).
Trial court can exercise the court's discretion in keeping the defendant's cross-examination of the state's witnesses within reasonable bounds and in curtailing the cross-examination if the inquiry is not relevant or material. Samuels v. State, 174 Ga. App. 684, 331 S.E.2d 62 (1985) (decided under former O.C.G.A. § 24-9-64).
Regulation of scope of cross-examination is within sound discretion of trial court and this discretion will not be controlled unless it is manifestly abused. DOT v. 2.734 Acres of Land, 168 Ga. App. 541, 309 S.E.2d 816 (1983) (decided under former O.C.G.A. § 24-9-64).
Extent of cross-examination can be curtailed if the inquiry is not relevant or material, and such restriction lies within the discretion of the trial court, which will not be disturbed on appeal unless manifestly abused. Fletcher v. State, 197 Ga. App. 112, 397 S.E.2d 605 (1990) (decided under former O.C.G.A. § 24-9-64); Stevens v. State, 213 Ga. App. 293, 444 S.E.2d 840 (1994);(decided under former O.C.G.A. § 24-9-64).
Trial court abused the court's discretion in refusing to allow the defendant to use a videotape of the defendant's daughter, concerning the defendant's alleged sexual abuse of the defendant's daughter, in the cross-examination of the defendant's daughter; however, the error was harmless because the subject matter was covered later during the trial when the entirety of the videotape was played and because the defendant had the opportunity to verbally cross-examine the daughter during the state's case regarding the daughter's former statements to authorities. Courrier v. State, 270 Ga. App. 622, 607 S.E.2d 221 (2004) (decided under former O.C.G.A. § 24-9-64).
Trial court did not abuse the court's discretion under former O.C.G.A. § 24-9-64 in limiting the defendant's ability to cross-examine a police officer as the limits were within the scope of the trial court's discretion and did not violate defendant's confrontation rights; the trial court allowed the defendant to cross-examine the officer as to the officer's experience and training, but limited the questioning as to other DUI arrests that the officer had made. Drogan v. State, 272 Ga. App. 645, 613 S.E.2d 195 (2005) (decided under former O.C.G.A. § 24-9-64).
Trial court judge did not abuse the court's discretion in limiting the defendant's cross-examination of a detective who had taken a statement from the defendant shortly after being apprehended because, even assuming the restriction was erroneous during the defendant's trial for involuntary manslaughter and reckless conduct, the overwhelming evidence established the defendant's guilt, including the uncontroverted evidence that the defendant brandished and fired the weapon at the deceased victim, which made the error harmless. Anaya-Plasencia v. State, 283 Ga. App. 728, 642 S.E.2d 401 (2007) (decided under former O.C.G.A. § 24-9-64).
Trial court did not improperly limit the defendant's cross-examination to matters material to the issues as: (1) whether the victim had a boyfriend that a parent disapproved of was irrelevant; (2) there was no indication by the evidence that the victim was trying to explain away evidence of a relationship with one man by attributing that evidence to another; and (3) it was illogical for the victim to have fabricated a claim of child molestation. Gaines v. State, 285 Ga. App. 654, 647 S.E.2d 357 (2007) (decided under former O.C.G.A. § 24-9-64).
There was sufficient evidence to support a defendant's convictions on two counts of armed robbery, and the trial court did not err by failing to grant the defendant's motion for a directed verdict, based on both victims' identification of the defendant; the defendant being found in a nearby location to the truck stop where the attacks occurred walking rapidly away; and the defendant being found with exactly the amount of cash taken from one victim. The trial court properly limited the defendant's cross-examination of the arresting officer to the length of the police report and the lack of details therein, and did not abuse the court's discretion by refusing to allow defense counsel to ask the officer about the length of time that suspects may spend in custody pre-trial, as that issue was irrelevant to any issue in the case. Burden v. State, 296 Ga. App. 441, 674 S.E.2d 668 (2009) (decided under former O.C.G.A. § 24-9-64).
There was no reversible error in a trial court's limitation of the cross-examination of a key state's witness and of a child victim when the defendant failed to show that the substance of the defendant's questions was limited, or how any of the trial court's actions affected the cross-examination or the defendant's ability to impeach the witnesses. Kerdpoka v. State, 314 Ga. App. 400, 724 S.E.2d 419 (2012), cert. denied, No. S12C1112, 2012 Ga. LEXIS 603 (Ga. 2012) (decided under former O.C.G.A. § 24-9-64).
Because the trial court did not abuse the court's discretion in regulating cross-examination by instructing defense counsel to be clear with counsel's question, the defendant's constitutional right of confrontation was not violated. Baker v. State, 293 Ga. 811, 750 S.E.2d 137 (2013)(decided under former O.C.G.A. § 24-9-62).
In a quiet title action, the trial court erred by limiting the cross examination of a defense witness since O.C.G.A. § 24-6-611(b) differed from the federal rule and allowed seeking information on cross-examination despite not being brought out during direct. R. C. Acres, Inc. v. Cambridge Faire Props., LLC, 331 Ga. App. 762, 771 S.E.2d 444 (2015).
Trial court did not abuse the court's discretion by allowing the state to challenge the veracity of a statement by the defendant's wife that a victim recanted because the state, having been unaware of the alleged call in which that was done, was authorized to ferret out the truth through the state's questioning. Patterson v. State, 350 Ga. App. 540, 829 S.E.2d 796 (2019), cert. denied, 2019 Ga. LEXIS 892 (Ga. 2019).
Trial court may restrict scope of cross-examination to matters relevant to issues being tried, and results of the exercise of that discretion will not be interfered with unless the discretion was manifestly abused. Ayers v. Carter, 159 Ga. App. 680, 285 S.E.2d 55 (1981) (decided under former Code 1933, § 38-1705); Fowler v. State, 171 Ga. App. 491, 320 S.E.2d 219 (1984); Banks v. State, 178 Ga. App. 54, 341 S.E.2d 859 (1986) (decided under former O.C.G.A. § 24-9-64); Walker v. State, 198 Ga. App. 422, 401 S.E.2d 613 (1991);(decided under former O.C.G.A. § 24-9-64);(decided under former O.C.G.A. § 24-9-64).
Trial court did not abuse the court's discretion by excluding reference to emails, admittedly containing mostly irrelevant material, between the victim and the victim's friend, the witness, but nevertheless allowed defense counsel to explore the subject areas desired, with the witness conceding the points raised. Courrier v. State, 270 Ga. App. 622, 607 S.E.2d 221 (2004) (decided under former O.C.G.A. § 24-9-64).
Trial court did not abuse the court's discretion in rejecting the defendant's proposed line of cross-examination questioning as the trial court ruled that testimony involving a totally unrelated arrest was irrelevant to the defendant's case after first giving the defendant the opportunity to establish its relevance. Schlanger v. State, 290 Ga. App. 407, 659 S.E.2d 823 (2008) (decided under former O.C.G.A. § 24-9-64).
3. Specific Applications
Impeachment.
- If the purpose in cross-examination is to impeach or discredit a witness, great latitude should be allowed for a thorough and sifting cross-examination. Goodwyn v. Goodwyn, 20 Ga. 600 (1856) (decided under former law); Floyd v. Wallace, 31 Ga. 688 (1861); Mitchell v. State, 71 Ga. 128 (1883) (decided under former law); Atlanta & B. Air-Line Ry. v. McManus, 1 Ga. App. 302, 58 S.E. 258 (1907); Kimbrough v. State, 9 Ga. App. 301, 70 S.E. 1127 (1911) (decided under former Code 1882, § 3864); Smith v. State, 12 Ga. App. 13, 76 S.E. 647 (1912); Glover v. State, 15 Ga. App. 44, 82 S.E. 602 (1914) (decided under former Civil Code 1895, § 5282); Boyett v. State, 16 Ga. App. 150, 84 S.E. 613 (1915); Griffin v. State, 18 Ga. App. 462, 89 S.E. 537 (1916) (decided under former Penal Code 1910, § 1044); Loomis v. State, 78 Ga. App. 153, 51 S.E.2d 13 (1948); Western & Atl. R.R. v. Burnett, 79 Ga. App. 530, 54 S.E.2d 357 (1949) (decided under former Penal Code 1910, § 1044); Wyatt v. State, 206 Ga. 613, 57 S.E.2d 914 (1950); Salisbury v. State, 222 Ga. 549, 150 S.E.2d 819 (1966) (decided under former Penal Code 1910, § 1044); Bramblett v. State, 139 Ga. App. 745, 229 S.E.2d 484 (1976); 239 Ga. 336, 236 S.E.2d 580 (1977) (decided under former Penal Code 1910, § 1044); 434 U.S. 1013, 98 S. Ct. 728, 54 L. Ed. 2d 757 (1978); Toney v. Johns, 153 Ga. App. 880, 267 S.E.2d 298 (1980) (decided under former Penal Code 1910, § 1044); Horne v. State, 155 Ga. App. 851, 273 S.E.2d 193 (1980);(decided under former Code 1933, § 38-1705);(decided under former Code 1933, § 38-1705);(decided under former Code 1933, § 38-1705);(decided under former Code 1933, § 38-1705);aff'd,cert. denied,(decided under former Code 1933, § 38-1705);(decided under former Code 1933, § 38-1705);(decided under former Code 1933, § 38-1705).
On cross-examination the opposing party is entitled to a thorough and sifting examination of the witness, and, when the defendant's alibi witnesses were under cross-examination, the trial court correctly refused to grant a mistrial with reference to an effort to impeach those witnesses as to whether or not the testimony was fabricated before trial since the object of all legal investigation is the discovery of truth. Mitchell v. State, 157 Ga. App. 683, 278 S.E.2d 192 (1981) (decided under former Code 1933, § 38-1705).
Prosecutor's cross-examination of witness did not constitute impeachment of the witness by proof of a criminal conviction since the prosecutor was cross-examining the witness concerning the criminal charges surrounding incarceration, in order to reveal possible biases, prejudices, or ulterior motives of the witness as they might relate to the witness's testimony on direct examination. Harrison v. State, 259 Ga. 486, 384 S.E.2d 643 (1989) (decided under former O.C.G.A. § 24-9-64).
Use of cross-examination in a good faith attempt to impeach a defendant, who on direct examination has voluntarily given testimony on direct examination obviously calculated to impress the jury as to certain traits of defendant's character, is not prohibited. Butts v. State, 193 Ga. App. 824, 389 S.E.2d 395 (1989) (decided under former O.C.G.A. § 24-9-64).
When a defendant was charged with aggravated assault, but claimed self defense, the trial court erred in prohibiting the defendant from eliciting from the victim that the victim had pending a civil action against the defendant for the victim's injuries. The defendant wished to cross-examine the victim to establish this fact to prove the victim's interest in the outcome of the criminal trial and so attack the victim's credibility, and was entitled to show the state of the witness's feelings toward the defendant and the witness's relationship to the defendant. Boggs v. State, 195 Ga. App. 605, 394 S.E.2d 401 (1990) (decided under former O.C.G.A. § 24-9-64).
Trial court erred in allowing the state to impeach the defendant with evidence of a prior terroristic threats conviction after the defendant mentioned, in direct examination, that the defendant surrendered to the authorities after visiting the defendant's parole officer as the defendant was on parole for a theft by taking, not terroristic threats, and the trial court failed to make an on-the-record finding that the probative value of admitting the conviction outweighed the prejudicial effect. Williams v. State, 299 Ga. 834, 792 S.E.2d 336 (2016).
Expert witnesses.
- Permitting cross-examination directed specifically to testing the accuracy of an expert's opinion stated on direct examination was not an abuse of discretion as to scope of cross-examination. Lane Drug Stores v. Brooks, 70 Ga. App. 878, 29 S.E.2d 716 (1944) (decided under former Code 1933, § 38-1705); Rozar v. State, 93 Ga. App. 207, 91 S.E.2d 131 (1956); Wooten v. Department of Human Resources, 152 Ga. App. 304, 262 S.E.2d 583 (1979) (decided under former Code 1933, § 38-1705);(decided under former Code 1933, § 38-1705).
In a medical malpractice case, it was error to prevent plaintiffs from cross-examining defense experts about their personal practices, as such evidence, unless excludable on other evidentiary grounds, was admissible as substantive evidence and to impeach the experts' opinion as to the applicable standard of care. Condra v. Atlanta Orthopaedic Group, P.C., 285 Ga. 667, 681 S.E.2d 152 (2009) (decided under former O.C.G.A. § 24-9-64).
Trial court did not err in overruling the defendant's objection to the state's cross-examination of defendant's expert witness, who opined about an alleged failure to properly document the preliminary interview of the victim, on the ground that the defendant previously impeached a deputy by showing the deputy the deputy's report and eliciting testimony that the deputy did ask and the victim did answer more substantive questions because the state's question did not inaccurately characterize the prior testimony, nor refer to facts not in evidence, since there was testimony that the interview consisted of nothing more than asking the victim the victim's name and other preliminary information; that the defendant was able to later educe testimony to the contrary did not make the question improper as stated. Arnold v. State, 305 Ga. App. 45, 699 S.E.2d 77 (2010) (decided under former O.C.G.A. § 24-9-64).
Juvenile court did not err in prohibiting defense counsel from asking an officer, who was qualified as an expert, how many shoe print comparisons the officer had actually performed because the officer testified on the first day of the hearing that the officer had handled other cases involving shoe-print matching, and the juvenile court already had qualified the officer as an expert witness. In the Interest of J.D., 305 Ga. App. 519, 699 S.E.2d 827 (2010) (decided under former O.C.G.A. § 24-9-64).
Police officer's training in field sobriety testing.
- In a case in which the defendant was tried for driving under the influence of alcohol to the extent of being a less safe driver, the trial court abridged the defendant's substantial right to cross-examination under former O.C.G.A. § 24-9-64 by precluding defendant from cross-examining the arresting officer about the officer's National Highway Traffic Safety Administration (NHTSA) training and NHTSA requirements for field sobriety evaluations like the horizontal gaze nystagmus (HGN) test, as the officer gave detailed testimony about the defendant's involuntary jerking of the defendant's eyes during a prescribed pattern of HGN testing and asserted that this showed that the defendant was under the influence of alcohol; the officer's NHTSA training and the NHTSA standards for conducting HGN testing were clearly material to the officer's opinion and to the controversy before the court, and the error was not harmless since the state's case relied entirely on the officer's testimony regarding the field sobriety tests. James v. State, 260 Ga. App. 536, 580 S.E.2d 334 (2003) (decided under former O.C.G.A. § 24-9-64).
Character witnesses.
- While the general character of the parties, and especially their conduct in other transactions, are irrelevant matters, it is proper on cross-examination to question a character witness regarding particular matters so as to test the extent and basis for the opinion given. Haire v. State, 209 Ga. 378, 72 S.E.2d 707 (1952) (decided under former Code 1933, § 38-1705); Compher v. Georgia Waste Sys., 155 Ga. App. 819, 273 S.E.2d 200 (1980); Curry v. State, 155 Ga. App. 829, 273 S.E.2d 411 (1980) (decided under former Code 1933, § 38-1705);(decided under former Code 1933, § 38-1705).
Use of videotape.
- In a prosecution for criminal attempt to process cocaine, stemming from a reverse sting operation, it would have been proper to allow defense counsel to play a videotape of the attempted purchase during the cross-examination of a police officer. Givens v. State, 264 Ga. 522, 448 S.E.2d 687 (1994) (decided under former O.C.G.A. § 24-9-64).
Trial court did not err by allowing the state to admit demonstrative evidence of video clips showing three types of horizontal gaze nystagmus tests because the officer's testimony made clear that the video clips were not of the defendant, but that in the substantial particulars, the conditions of the video clips and the officer's observations of the defendant were similar as both showed the same kind of nystagmus. Monroe v. State, 340 Ga. App. 373, 797 S.E.2d 245 (2017).
Repetitious questions.
- Exclusion of unnecessarily repetitious questions in the cross-examination which have been previously propounded and answered does not constitute an abuse of discretion. Clifton v. State, 187 Ga. 502, 2 S.E.2d 102 (1939) (decided under former Code 1933, § 38-1705); Griffin v. State, 85 Ga. App. 602, 69 S.E.2d 665 (1952); Hamilton v. State, 91 Ga. App. 295, 85 S.E.2d 496 (1954) (decided under former Code 1933, § 38-1705); Pittman v. West, 95 Ga. App. 149, 97 S.E.2d 387 (1957); Harrison v. Regents of Univ. Sys., 99 Ga. App. 762, 109 S.E.2d 854 (1959) (decided under former Code 1933, § 38-1705); Bass v. Bass, 222 Ga. 378, 149 S.E.2d 818 (1966); Sullivan v. State, 222 Ga. 691, 152 S.E.2d 382 (1966) (decided under former Code 1933, § 38-1705); Goober v. Nix, 128 Ga. App. 578, 197 S.E.2d 486 (1973); Geiger v. State, 129 Ga. App. 488, 199 S.E.2d 861 (1973) (decided under former Code 1933, § 38-1705); Reid v. State, 129 Ga. App. 660, 200 S.E.2d 456 (1973); Luther v. DeKalb County, 131 Ga. App. 25, 205 S.E.2d 70 (1974) (decided under former Code 1933, § 38-1705); Jones v. State, 135 Ga. App. 893, 219 S.E.2d 585 (1975); Johnson v. State, 137 Ga. App. 308, 223 S.E.2d 500 (1976) (decided under former Code 1933, § 38-1705); Hudson v. State, 137 Ga. App. 439, 224 S.E.2d 48 (1976);(decided under former Code 1933, § 38-1705);(decided under former Code 1933, § 38-1705);(decided under former Code 1933, § 38-1705);(decided under former Code 1933, § 38-1705);(decided under former Code 1933, § 38-1705);(decided under former Code 1933, § 38-1705);(decided under former Code 1933, § 38-1705).
When a question has been asked of and answered by a witness, the trial court does not unduly limit the right to a thorough cross-examination by disallowing its repetition. Fitzgerald v. State, 166 Ga. App. 307, 304 S.E.2d 114 (1983) (decided under former O.C.G.A. § 24-9-64).
Argumentative questions.
- Questions which are argumentative are properly excluded. Haralson v. State, 234 Ga. 406, 216 S.E.2d 304 (1975), overruled on other grounds, White v. State, 273 Ga. 787, 546 S.E.2d 514 (2001) (decided under former Code 1933, § 38-1705).
Hypothetical questions to determine the witnesses' knowledge must embody the facts offered in evidence. Clackum v. State, 55 Ga. App. 44, 189 S.E. 397 (1936) (decided under former Code 1933, § 38-1705); Curry v. State, 155 Ga. App. 829, 273 S.E.2d 411 (1980);(decided under former Code 1933, § 38-1705).
Conclusion of witness.
- Right to a thorough and sifting cross-examination is not abridged if the question propounded calls for a conclusion by the witness. Proctor v. State, 235 Ga. 720, 221 S.E.2d 556 (1975) (decided under former Code 1933, § 38-1705).
Victim's state of mind.
- In a prosecution for child molestation, the trial court properly limited the cross-examination of witnesses as to the victim's state of mind, use of drugs, and psychiatric treatment because such inquiry had no relevance to the charges against defendant. Davidson v. State, 232 Ga. App. 250, 501 S.E.2d 510 (1998) (decided under former O.C.G.A. § 24-9-64).
Prior sexual activity.
- Victim of an alleged rape may not be cross-examined as to specific acts of prior sexual intercourse with men other than the accused. Thomas v. State, 234 Ga. 635, 217 S.E.2d 152 (1975) (decided under former Code 1933, § 38-1705).
Since defendant had known the victim for only one hour before the alleged rape occurred, and since in that time, it was unlikely that the defendant discovered any past sexual activity on the part of his victim that could justify his claim that she consented to intercourse, the trial court's refusal to admit evidence as to the victim's prior sexual experience was not a denial of defendant's right to a thorough and sifting cross-examination. Lamar v. State, 243 Ga. 401, 254 S.E.2d 353 (1979) (decided under former Code 1933, § 38-1705).
In a child molestation case, defendant was properly precluded from inquiring into the victim's family lifestyle and sexual history. Schwindler v. State, 254 Ga. App. 579, 563 S.E.2d 154 (2002), cert. denied, 538 U.S. 1016, 123 S. Ct. 1935, 155 L. Ed. 2d 854 (2003), recons. denied, overruled on other grounds by State v. Lane, 2020 Ga. LEXIS 98 (Ga. 2020) (decided under former O.C.G.A. § 24-9-64).
Seduction.
- On trial of the defendant under an indictment charging him with seduction of the prosecutor by persuasion and promise of marriage, where such prosecutor was the only witness for the state and her testimony was self-contradictory as to whether or not she knew, at the time of the alleged seduction, that the defendant was a married man, it was error to deny to defendant's counsel the right to a thorough and sifting cross-examination as provided by statute. Chambers v. State, 88 Ga. App. 57, 76 S.E.2d 84 (1953) (decided under former Code 1933, § 38-1705).
Admission of crime.
- In a trial for murder, since the state has introduced an admission by the accused of a willful and intentional killing unaccompanied with any justification or mitigation, it is the accused's right, by cross-examination, to elicit a previous conversation with the same witness in which the admission of the homicide was accompanied by a statement giving the reason therefor. West v. State, 200 Ga. 566, 37 S.E.2d 799, later appeal, 74 Ga. App. 423, 40 S.E.2d 98 (1946) (decided under former Code 1933, § 38-1705).
Prior convictions.
- After the defendant's sister testified on direct examination that her brothers were often accused of doing things they did not do, such testimony opened the door to cross-examination about convictions of the defendant's brothers. Pye v. State, 269 Ga. 779, 505 S.E.2d 4 (1998), cert. denied, 526 U.S. 1118, 119 S. Ct. 1767, 143 L. Ed. 2d 797 (1999) (decided under former O.C.G.A. § 24-9-64).
Trial court did not err when the court prevented the defendant from interrogating a witness about the specific facts of a prior offense as the witness explained that the witness was on parole for aggravated assault and made effort toward rehabilitation. Upshaw v. State, 300 Ga. 442, 796 S.E.2d 287 (2017)(decided under former O.C.G.A. §§ 24-9-62 and24-9-64).
Codefendant's plea agreement.
- Cross-examination of an accomplice regarding a deal the accomplice made with the prosecution, including the potential sentence the accomplice could receive and the fact that the accomplice would not be eligible for parole, is constitutionally protected because it shows the witness's motive, bias or interest in cooperating with the state and testifying against defendant. The fact that a witness faces a sentence without eligibility for parole, or a mandatory minimum sentence, gives the witness much more incentive to give favorable testimony. Vogleson v. State, 250 Ga. App. 555, 552 S.E.2d 513 (2001) (decided under former O.C.G.A. § 24-9-64).
Defendant has a constitutionally protected right to explore on cross-examination a codefendant's or an accomplice's agreement with the state, including the amount of prison time the codefendant or accomplice would avoid by agreeing to cooperate with the state and testify against the defendant. Perez v. State, 254 Ga. App. 872, 564 S.E.2d 208 (2002) (decided under former O.C.G.A. § 24-9-64).
Fact that counsel abandons line of inquiry presents nothing for review.
- Since the trial court did not curtail proper examination but simply exercised the court's discretion to require counsel to obtain the information through proper questions, the fact that counsel abandoned the line of inquiry presents nothing for review. Johnson v. State, 158 Ga. App. 333, 280 S.E.2d 379 (1981) (decided under former Code 1933, § 38-1705).
When the plaintiff is called as a defense witness upon an objection to the witness being recalled for further cross-examination, this tactic entitles counsel for the plaintiff to cross-examine the witness just like any other defense witness, and while the court can, in the court's discretion, prohibit counsel from posing leading questions, there is no abuse of discretion in allowing the questions. Mercer v. Woodard, 166 Ga. App. 119, 303 S.E.2d 475 (1983) (decided under former O.C.G.A. § 24-9-64).
State is not required to reveal the identity of an informant. Montford v. State, 168 Ga. App. 394, 309 S.E.2d 650 (1983), overruled on other grounds by State v. Lane, 2020 Ga. LEXIS 98 (Ga. 2020) (decided under former O.C.G.A. § 24-9-64).
Defendant's testimony on direct examination that defendant had previously been in "some trouble" did not place defendant's character in issue, but it was not error to allow defendant to be cross-examined as to the specific circumstances surrounding the "trouble" to which defendant testified. Richardson v. State, 173 Ga. App. 695, 327 S.E.2d 813 (1985) (decided under former O.C.G.A. § 24-9-64).
Defendant's intent.
- State's objection to defendant's cross-examination under former O.C.G.A. § 24-9-64 of the victim was properly sustained as defendant's intent to commit the crime was a jury question; even if there were error, it was harmless, as defendant obtained the requested information through another line of questioning. Burdette v. State, 259 Ga. App. 59, 576 S.E.2d 47 (2002) (decided under former O.C.G.A. § 24-9-64).
Generally, the wealth or worldly circumstances of a party litigant is never admissible, except in those cases when position or wealth is necessarily involved. First Fed. Sav. & Loan Ass'n v. Jones, 173 Ga. App. 356, 326 S.E.2d 554 (1985) (decided under former O.C.G.A. § 24-9-64).
Minors as witnesses.
- Trial court did not abuse court's discretion in refusing to allow defense counsel, while cross-examining a 16-year-old witness, to repeat questions that had been asked and fully answered or from asking questions in a "rapid-fire" method, especially in light of the witness's youth. Phyfer v. State, 259 Ga. App. 356, 577 S.E.2d 56 (2003), overruled on other grounds by State v. Lane, 2020 Ga. LEXIS 98 (Ga. 2020) (decided under former O.C.G.A. § 24-9-64).
Testimony from witness with immunity.
- Any error in limiting a defendant's cross-examination of a witness who had been granted immunity from prosecution was harmless given that the state informed the jury that: the witness had received testimonial immunity; at the time the witness gave the witness's statement to police, the witness was charged only with criminal attempt to commit armed robbery; the detective told the witness then that other charges might be added, or the witness may be offered a plea agreement; the witness was jailed after giving a statement; and the witness was later charged with felony murder and possession of a firearm during the commission of a felony. Younger v. State, 288 Ga. 195, 702 S.E.2d 183 (2010) (decided under former O.C.G.A. § 24-9-64).
Victim's mother.
- Because the defendant did not perfect the record with a sufficient proffer of the testimony of the victim's mother, the court of appeals was unable to reach the merits of the defendant's claim that the defendant's cross-examination of the mother would have shown that she had a possible bias or motive for testifying against the defendant and that the mother had made prior allegations that one of her children had been molested; even if review of the alleged error had not been waived, the defendant did not show how the trial court's ruling prevented the defendant from showing any bias or prejudice against the defendant on the part of the mother because the defendant was not prohibited from cross-examining the mother about the state of her feelings toward the defendant pursuant to former O.C.G.A. § 24-9-68 (see now O.C.G.A. § 24-6-622) and about the defendant's relationship with her, and the evidence at trial included the direct testimony of the victim, who testified as to the offenses the defendant committed against her, as well as the chemical evidence of the defendant's semen on the victim's bed sheets. Miceli v. State, 308 Ga. App. 225, 707 S.E.2d 141 (2011) (decided under former O.C.G.A. § 24-9-64).
Relationship with victim.
- In defendant's trial on a charge of aggravated assault under O.C.G.A. § 16-5-21(a), the trial court did not abuse the court's discretion under former O.C.G.A. § 24-9-64 in precluding the defendant from cross-examining the victim about what the victim meant when the victim said that there was tension in the victim's relationship with the defendant and that the victim was going through a transitional period in the victim's life; while the defendant contended that the defendant wanted to examine the victim about the victim's failure to comply with a drug rehabilitation program in which the victim was enrolled and that the defendant was upset about the possibility that the victim would leave Georgia if the victim failed to complete the program, thereby ending the relationship, such evidence was irrelevant to the defendant's justification defense because it was not evidence either of the victim's general reputation for violence or of specific acts of violence perpetrated by the victim. Evidence about the status of the couple's relationship and the nature of their arguments in the week leading up to their fight would not have shed any light on whether the defendant was in reasonable fear of suffering immediate serious harm to the defendant when the defendant choked the victim and threatened to kill the victim. As such, the trial court did not err in ruling that the evidence was irrelevant. Chambers v. State, 308 Ga. App. 748, 708 S.E.2d 651 (2011) (decided under former O.C.G.A. § 24-9-64).
Specific questions.
- In a suit on an account, in which the defendant denied receiving a certain portion of the goods, defendant's evidence was self-contradictory and in some degree inconsistent with the testimony of other witnesses, the trial judge did not abuse the judge's discretion in permitting counsel for the plaintiff to state to the defendant, by way of cross-examination, "I want to give you one more opportunity to correct your statement that you did not receive these two shipments of merchandise." Cohen v. Saffer, 43 Ga. App. 746, 160 S.E. 130 (1931) (decided under former Civil Code 1910, § 5871).
If upon cross-examination of a hostile witness it is shown that the witness has testified to a contradictory statement on a former trial of a codefendant, and the attention of the witness is called to the alleged contradictions and the contradictory statements are admitted by the witness, it is within the legitimate scope of the right of cross-examination to ask the witness upon which occasion the witness was testifying to the truth. Loomis v. State, 78 Ga. App. 153, 51 S.E.2d 13 (1948) (decided under former Code 1933, § 38-1705).
Questions involving prior crimes are not admissible when the sole purpose is to show that defendant is guilty of such other crimes; however, questions as to other offenses may be asked in rebuttal to testimony of another witness. Wyatt v. State, 206 Ga. 613, 57 S.E.2d 914 (1950) (decided under former Code 1933, § 38-1705); Casey v. State, 133 Ga. App. 161, 210 S.E.2d 375 (1974);(decided under former Code 1933, § 38-1705).
It was not error for the court, in cross-examination of a police officer, to refuse to require the officer to disclose the name of the person who had given the officer information which led to the arrest of defendant. Morgan v. State, 211 Ga. 172, 84 S.E.2d 365 (1954) (decided under former Code 1933, § 38-1705).
Judgment of the trial court refusing to permit the condemnee to cross-examine witness as to whether the witness had testified as a witness in all other condemnation cases tried in the same court was error and the judgment overruling the motion for new trial on such ground would be reversed. Sutton v. State Hwy. Dep't, 103 Ga. App. 29, 118 S.E.2d 285 (1961) (decided under former Code 1933, § 38-1705).
It is not error to permit the defendant's trial attorney as witness to answer the question why the attorney did not raise the issue of insanity as a defense. Chaffin v. State, 227 Ga. 327, 180 S.E.2d 741 (1971) (decided under former Code 1933, § 38-1705).
Questions which are a misstatement of the witnesses' testimony or matters not within the witnesses' knowledge are properly excluded. Haralson v. State, 234 Ga. 406, 216 S.E.2d 304 (1975), overruled on other grounds, White v. State, 273 Ga. 787, 546 S.E.2d 514 (2001) (decided under former Code 1933, § 38-1705).
Right to a thorough and sifting cross-examination is not abridged since the question propounded calls for a conclusion by the witness as to matters which can be determined only by the jury, such as whether there was provocation or justification of a homicide. Proctor v. State, 235 Ga. 720, 221 S.E.2d 556 (1975) (decided under former Code 1933, § 38-1705).
It is error to permit cross-examination of a defendant for impeachment purposes regarding defendant's silence, or failure to offer an exculpatory statement, at the time of defendant's arrest, including a defendant who was not apprised of defendant's Miranda rights. Harrison v. State, 154 Ga. App. 343, 268 S.E.2d 396 (1980) (decided under former Code 1933, § 38-1705).
On cross-examination, the state may inquire with particularity to test the witness's basis for the opinion given, and may inquire if the witness has not heard particular persons speak ill of the witness, or if the witness has not been known to be accused of particular crimes. Horne v. State, 155 Ga. App. 851, 273 S.E.2d 193 (1980) (decided under former Code 1933, § 38-1705).
In action for deceit in connection with purchase of used car, where purchase and resale of trade-in vehicle were already in evidence, there was no error in allowing jury to know monetary details of that transaction. Bill Spreen Toyota, Inc. v. Jenquin, 163 Ga. App. 855, 294 S.E.2d 533 (1982) (decided under former O.C.G.A. § 24-9-64).
In prosecution for criminal trespass at welcome center, trial court acted incorrectly when the court curtailed attempts of appellant's counsel to impeach a witness by means of the witness's apparent prior inconsistent statements on issue, on issue of whether the witness had authorized a police officer to act as the witness's representative in giving notice to appellant that appellant was not to return to the center. Joiner v. State, 163 Ga. App. 521, 295 S.E.2d 219 (1982) (decided under former O.C.G.A. § 24-9-64).
As one need not be the owner of premises in order to be deemed in possession of the goods contained therein, the right to a thorough and sifting cross-examination is not abridged by the sustaining of an objection when counsel is trying to elicit from a witness the extent of the witness's knowledge as to the proof of ownership of a home where stolen property was found. Brady v. State, 169 Ga. App. 316, 312 S.E.2d 632 (1983) (decided under former O.C.G.A. § 24-9-64).
In an action seeking damages for injuries sustained when a motorcycle collided with an automobile, the trial court did not abuse the court's discretion in excluding a merely speculative, suggested line of questioning of the defendant, whose defense was that the plaintiff's own negligence caused the injury, about why defendant had failed or chosen not to instigate legal process against the plaintiff. Corley v. Harris, 171 Ga. App. 688, 320 S.E.2d 833 (1984) (decided under former O.C.G.A. § 24-9-64).
When on cross-examination an agent was asked if the agent occupied the lowest position, as far as salary was concerned, in the GBI, there was no abuse of discretion in sustaining the state's objection on the ground of relevancy. Anderson v. State, 165 Ga. App. 885, 303 S.E.2d 57 (1983), rev'd on other grounds, 252 Ga. 103, 312 S.E.2d 113 (1984) (decided under former O.C.G.A. § 24-9-64).
In view of the evidence connecting a witness with the crime and the witness's prior inconsistent statements, the defendant properly inquired into the witness's veracity and the extent of the witness's actual participation. Castell v. State, 250 Ga. 776, 301 S.E.2d 234 (1983), aff'd, 252 Ga. 418, 314 S.E.2d 210, cert. denied, 469 U.S. 873, 105 S. Ct. 230, 83 L. Ed. 2d 159 (1984) (decided under former O.C.G.A. § 24-9-64).
When the defendant's attorney "opened the door" regarding the defendant's status as a licensed insurance agent in this state, the state's attorney was entitled to a thorough and sifting cross-examination regarding this issue. The fact that the defendant's insurance license was temporarily revoked by an administrative order issued by the Insurance Commissioner may have incidentally placed the defendant's character in issue; however, since the defendant's attorney "opened the door" to this issue, the testimony was not inadmissible. Mason v. State, 180 Ga. App. 235, 348 S.E.2d 754 (1986) (decided under former O.C.G.A. § 24-9-64).
Trial court's refusal to allow defendant to ask a witness, who had entered a guilty plea and was cooperating with the prosecution prior to defendant's sentencing, if the defendant had been told what period of time Georgia law prescribed as the mandatory minimum sentence for defendant's crime, was not error since the court did allow defendant to establish the basis for possible bias or interest of the witness. Matthews v. State, 194 Ga. App. 386, 390 S.E.2d 873 (1990) (decided under former O.C.G.A. § 24-9-64).
In a prosecution for violating the Georgia Controlled Substances Act, O.C.G.A. § 16-13-1 et seq., and obstruction of an officer, the court did not abuse the court's discretion by restricting defendant's cross-examination of the state's crime lab witness when the court refused to allow defendant to examine the witness regarding another crime lab scientist who testified at a hearing in another county in an unrelated case that a substance was cocaine when in fact it was soap, since the crime lab witness testified, during proffer, that the witness had "no personal knowledge" of the incident and all the information be possessed about it was "secondary information" which was told to the witness at a crime lab meeting conducted by the witness's supervisor. Stephens v. State, 207 Ga. App. 645, 428 S.E.2d 661 (1993) (decided under former O.C.G.A. § 24-9-64).
When the trial court did not restrict defendant's counsel from questioning police officers regarding any bias the officer had toward black males, but merely restricted defendant's counsel from questioning police officers regarding an alleged prior brutality incident, in which no formal complaint had apparently been filed, there was no abuse of the trial court's decision. Harris v. State, 216 Ga. App. 297, 454 S.E.2d 146 (1995) (decided under former O.C.G.A. § 24-9-64).
State was entitled to cross-examine the defendant about why defendant had been in jail prior to defendant's prosecution for burglary and kidnapping, since the defendant introduced the topic of defendant's incarceration by testifying that the defendant had told the gunmen, who allegedly forced the defendant to accompany them to the victims' apartment, that the defendant could not have sold drugs for the victim because the defendant had been in jail. Cosby v. State, 234 Ga. App. 723, 507 S.E.2d 551 (1998) (decided under former O.C.G.A. § 24-9-64).
In a malpractice action, the court properly excluded the following question put to defendants' expert, i.e., "whether hospitals all over the country admit people to find out what is causing abdominal pain" because the expert had earlier answered a similar question that asked "whether people were admitted to a hospital to find out what was causing a problem." Cornelius v. Macon-Bibb County Hosp. Auth., 243 Ga. App. 480, 533 S.E.2d 420 (2000) (decided under former O.C.G.A. § 24-9-64).
When defendant was charged with raping a victim who accepted defendant's offer of a ride as the victim was on her way to return a jacket to a former boyfriend, the rape shield law, former O.C.G.A. § 24-2-3(a) (see now O.C.G.A. § 24-4-412), did not prohibit the defendant from inquiring of the victim about a theory that the victim fabricated the rape charge to explain semen stains on the boyfriend's jacket, resulting from the sexual encounter, because she wanted to reestablish a romantic relationship with the boyfriend, because the defendant was not seeking to inquire about the victim's character for sexual behavior. Richardson v. State, 276 Ga. 639, 581 S.E.2d 528 (2003) (decided under former O.C.G.A. § 24-9-64).
Trial court did not abuse the court's discretion in limiting the defendant's cross-examination of one detective about how another detective, who was unavailable at trial, formed that detective's opinions and impressions regarding how the defendant's spouse was killed as such questioning was beyond the detective's personal knowledge. Rowe v. State, 276 Ga. 800, 582 S.E.2d 119 (2003) (decided under former O.C.G.A. § 24-9-64).
In a suit brought for specific performance of a contract provision and damages, the trial court did not err in preventing the defendant from cross-examining the plaintiff regarding the fairness of the provision; the suit involved a single provision in a written contract reflecting an arm's length transaction terminating a business relationship, and it was not incumbent upon the plaintiff to prove the fairness of the provision. Hibbard v. McMillan, 284 Ga. App. 753, 645 S.E.2d 356 (2007) (decided under former O.C.G.A. § 24-9-64).
Trial court did not err in sustaining the state's objection to defense counsel's questioning of a police officer regarding the officer's observation of other men on a defendant's property at the time the police began watching the property because the officer had not testified that the officer saw other men at the time the officer began the surveillance. Price v. State, 303 Ga. App. 859, 694 S.E.2d 712 (2010) (decided under former O.C.G.A. § 24-9-64).
Trial court did not manifestly abuse the court's discretion in limiting the defendant's crossexamination of a police officer by restricting the defendant from asking the officer about criminal charges brought against other persons involved in the underlying incident because the defendant did not show that allowing cross-examination about whether another party was charged with the offense of selling cocaine would have raised a reasonable inference that the defendant was not guilty of the separate offense of possession of cocaine with intent to distribute. Bush v. State, 305 Ga. App. 617, 699 S.E.2d 899 (2010) (decided under former O.C.G.A. § 24-9-64).
Trial court did not abuse the court's discretion in curtailing the defendant's cross-examination of a Department of Family and Children Services (DFCS) employee about whether the Department at some point thought the evidence was not sufficient to warrant referring a victim's case to the district attorney and whether the victim's mother laughed when the mother was told of the victim's allegations because even if DFCS had initially concluded that a referral was not warranted or that the mother had laughed, such evidence could have no relevance to any issue in the defendant's child molestation case. Kay v. State, 306 Ga. App. 666, 703 S.E.2d 108 (2010) (decided under former O.C.G.A. § 24-9-64).
Trial court did not err in requiring defense counsel to voir dire defendant's wife, who had accused defendant of child molestation, prior to questioning her as to possible motives to fabricate her testimony in order to obtain a special visa for victims of domestic violence under the immigration laws. Defense counsel was permitted to cross-examine the wife in these areas, but not to ask questions regarding how the wife came into the United States. Gonzalez v. State, 310 Ga. App. 348, 714 S.E.2d 13 (2011) (decided under former O.C.G.A. § 24-9-64).
Trial court did not err in sustaining the state's objection to a defendant's request that a police officer come down from the stand and describe the defendant's tattoos because what the defendant sought was not related to a legitimate purpose of cross-examination, but to introduce evidence from the defendant without the burden of subjecting the defendant to cross-examination. Jefferson v. State, 312 Ga. App. 842, 720 S.E.2d 184 (2011) (decided under former O.C.G.A. § 24-9-64).
Questioning witness on immigration status.
- Trial court did not err in disallowing cross-examination of a witness about the witness's immigration status as the notion that the witness was influenced in any way as to testimony by immigration status was speculative, such evidence had little probative value, and the defendant was not prohibited from cross-examining the witness about the witness's bias or partiality toward the prosecution. Lucas v. State, 303 Ga. 134, 810 S.E.2d 491 (2018).
Leading Questions
1. In General
In general.
- For a question to be objectionable it must be necessarily leading. Allgood v. State, 87 Ga. 668, 13 S.E. 569 (1891) (decided under former Code 1882, § 3865).
Question was leading when it was so framed as to suggest to the witness the answer which was desired; on the other hand, a question not suggesting the desired answer was not leading if the question inquired only into a single fact. Denson v. Miller, 33 Ga. 275 (1862) (decided under former law); James v. State, 215 Ga. 213, 109 S.E.2d 735 (1959); Ealey v. State, 139 Ga. App. 110, 227 S.E.2d 902 (1976) (decided under former Code 1933, § 38-1706);(decided under former Code 1933, § 38-1706).
Judge was given latitude and discretion in permitting leading questions, and unless there was an abuse thereof resulting in prejudice and injury there was no reversible error. Hill v. State, 41 Ga. 484 (1871) (decided under former Code 1868, § 309); Burrus & Williams v. Kyle & Co., 56 Ga. 24 (1876); Parker v. Georgia Pac. Ry., 83 Ga. 539, 10 S.E. 233 (1889) (decided under former Code 1873, § 3865); Doster v. State, 93 Ga. 43, 18 S.E. 997 (1893); Georgia R.R. & Banking Co. v. Churchill, 113 Ga. 12, 38 S.E. 336 (1901) (decided under former Code 1873, § 3865); City of Rome v. Stewart, 116 Ga. 738, 42 S.E. 1011 (1902); McBride v. Georgia Ry. & Elec. Co., 125 Ga. 515, 54 S.E. 674 (1906) (decided under former Civil Code 1895, § 5283); Lauchheimer & Sons v. Jacobs, 126 Ga. 261, 55 S.E. 55 (1906); Lyles v. State, 130 Ga. 294, 60 S.E. 578 (1908) (decided under former Civil Code 1895, § 5283); Peterson v. State, 6 Ga. App. 491, 65 S.E. 311 (1909); Ethridge v. State, 163 Ga. 186, 136 S.E. 72 (1926) (decided under former Civil Code 1895, § 5283); Peretzman v. Simon, 185 Ga. 681, 196 S.E. 471 (1938); Hanson v. State, 86 Ga. App. 313, 71 S.E.2d 720 (1952) (decided under former Civil Code 1895, § 5283); English v. State, 234 Ga. 602, 216 S.E.2d 851 (1975); Hudson v. State, 137 Ga. App. 439, 224 S.E.2d 48 (1976) (decided under former Civil Code 1895, § 5283); Clary Appliance & Furn. Ctr., Inc. v. Butler, 139 Ga. App. 233, 228 S.E.2d 211 (1976); Tucker v. Mappin, 149 Ga. App. 847, 256 S.E.2d 135 (1979) (decided under former Civil Code 1895, § 5283); Booker v. State, 156 Ga. App. 40, 274 S.E.2d 84 (1980); 247 Ga. 74, 274 S.E.2d 334 (1981) (decided under former Civil Code 1895, § 5283); Hamby v. State, 158 Ga. App. 265, 279 S.E.2d 715 (1981); Rutland v. State, 158 Ga. App. 315, 279 S.E.2d 757 (1981) (decided under former Civil Code 1910, § 5872);(decided under former Code 1933, § 38-1706);(decided under former Code 1933, § 38-1706);(decided under former Code 1933, § 38-1706);(decided under former Code 1933, § 38-1706);(decided under former Code 1933, § 38-1706);(decided under former Code 1933, § 38-1706);rev'd on other grounds,(decided under former Code 1933, § 38-1706);(decided under former Code 1933, § 38-1706);(decided under former Code 1933, § 38-1706).
Court may, in the exercise of the court's discretion, permit a party calling a witness to propound leading questions. Hamby v. State, 158 Ga. App. 265, 279 S.E.2d 715 (1981) (decided under former Code 1933, § 38-1706).
Trial court was permitted to exercise the court's discretion in granting the right to the party calling the witness to ask leading questions, and reversible error occurred only if that discretion was abused to the extent that the appealing party was prejudiced and injured. Blue Cross of Georgia/Columbus, Inc. v. Whatley, 180 Ga. App. 93, 348 S.E.2d 459 (1986) (decided under former O.C.G.A. § 24-9-63).
2. Permitted
Bill for discovery.
- Leading questions may be propounded in a bill for discovery. Cade v. Hatcher, 72 Ga. 359 (1884) (decided under former Code 1882, § 3865).
Leading questions were permitted on cross-examination, and a trial court did not err in allowing questions to a defendant on cross-examination about whether defendant had heard the testimony of an earlier witness. Brown v. State, 265 Ga. App. 613, 594 S.E.2d 770 (2004) (decided under former O.C.G.A. § 24-9-63).
Judge may personally ask leading questions. Smith v. State, 11 Ga. App. 89, 74 S.E. 711 (1912) (decided under former Penal Code 1910, § 1045).See also White v. State, 56 Ga. 358 (1876) (decided under former law).
Interest adverse to questioning party.
- When the vouchee was subpoenaed by plaintiff and sworn as the plaintiff's witness, the vouchee's interest was adverse to that of the defendant, and the vouchee's testimony was material and relevant to the defendant's defense, there was no abuse of discretion of the trial court in permitting the voucher to cross-examine the vouchee. Clary Appliance & Furn. Ctr., Inc. v. Butler, 139 Ga. App. 233, 228 S.E.2d 211 (1976) (decided under former Code 1933, § 38-1706).
Unfriendly witnesses may be asked leading questions. Moore v. State, 130 Ga. 322, 60 S.E. 544 (1908) (decided under former Penal Code 1895, § 1019); Morgan v. State, 17 Ga. App. 124, 86 S.E. 281 (1915); Nalley v. State, 11 Ga. App. 15, 74 S.E. 567 (1912) (decided under former Penal Code 1910, § 1045).See also (decided under former Penal Code 1910, § 1045).
Unwilling witnesses may be led, as a rule, especially when contumacious or equivocal. Durham v. State, 70 Ga. 264 (1883) (decided under former Code 1882, § 3865).
Nervous, ignorant, or hostile witness.
- Trial court hads the discretion to allow leading questions on direct examination when, for example, the witness was nervous, ignorant, or hostile. Fugate v. State, 263 Ga. 260, 431 S.E.2d 104 (1993) (decided under former O.C.G.A. § 24-9-63); Crowder v. State, 222 Ga. App. 351, 474 S.E.2d 246 (1996); Smith v. State, 243 Ga. App. 331, 533 S.E.2d 431 (2000) (decided under former O.C.G.A. § 24-9-63);(decided under former O.C.G.A. § 24-9-63).
Favorable and willing witnesses.
- Trial judge was given great latitude and discretion in permitting counsel to examine and lead a witness in an effort to get to the true facts, even though the witness may be a favorable and willing one; and, therefore, ordinarily, and unless there was a palpable and illegal abuse of the above discretion resulting in prejudice and injury to the complaining party in a material manner, reversible error will not be predicated by this court upon rulings of the trial court as to allowance of leading questions in examination of a witness. Hawthorne v. Pope, 51 Ga. App. 498, 180 S.E. 920 (1935) (decided under former Code 1933, § 38-1706).
Favorable witness who has repudiated testimony.
- When an alleged co-conspirator was sworn and testified as a witness for the state, but on cross-examination repudiated the witness's testimony given on direct examination, and testified that the witness's evidence on direct examination had been given on account of threats and intimidation made by a police officer who had told the witness what to say, it was proper to permit the prosecutor to cross-examine the witness for the purpose of showing entrapment, and in this way to prove that the accomplice witness had made statements after the pendency of the alleged conspiracy, but prior to the date of the witness's alleged intimidation, which corroborated the witness's testimony given on direct examination by the state. Mitchell v. State, 202 Ga. 247, 42 S.E.2d 767 (1947) (decided under former Code 1933, § 38-1706).
Witness sworn but not examined.
- Witness who was sworn but not examined by a party may be asked leading questions by the opposing party. Brown v. State, 28 Ga. 199 (1859). See also Lunday v. Thomas, 26 Ga. 537 (1858) (decided under former law).
Children and like minded persons.
- Judge, when need appeared, will ordinarily permit leading questions to children, or to witnesses so ignorant, timid, weakminded, or deficient in the English language that the witnesses cannot otherwise be brought to understand what information was sought. McCrary v. State, 137 Ga. 784, 74 S.E. 536 (1912) (decided under former Penal Code 1910, § 1045); Hayslip v. State, 154 Ga. App. 835, 270 S.E.2d 61 (1980);(decided under former Code 1933, § 38-1706).
In a defendant's prosecution for aggravated child molestation under O.C.G.A. § 16-6-4(b), the prosecutor was properly permitted to use leading questions under former O.C.G.A. § 24-9-63 during the victim's direct examination as the victim was only 14 at the time of trial, was often non-responsive, spoke very softly, and exhibited signs of timidity and fear. Bell v. State, 294 Ga. App. 779, 670 S.E.2d 476 (2008) (decided under former O.C.G.A. § 24-9-63).
Questioning a young female relating to matters of a sexual character. Keller v. State, 102 Ga. 506, 31 S.E. 92 (1897) (decided under former Penal Code 1895, § 1019); Wade v. State, 11 Ga. App. 411, 75 S.E. 494 (1912), overruled on other grounds, Worthen v. State, 2019 Ga. LEXIS 22 (Ga. 2019); 13 Ga. App. 142, 78 S.E. 863 (1913), later appeal, Hanson v. State, 86 Ga. App. 313, 71 S.E.2d 720 (1952) (decided under former Penal Code 1910, § 1045);(decided under former Code 1933, § 38-1706).
Parties as witnesses.
- Leading questions may be allowed although the witness called may be one of the opposite parties to the case. Cade v. Hatcher, 72 Ga. 359 (1884) (decided under former Code 1882, § 3865); Cotton States Life Ins. Co. v. Edwards, 74 Ga. 220 (1884);(decided under former Code 1882, § 3865).
Even though a witness was not hostile but was favorable, as if the witness was a party, or was the injured female in a criminal prosecution for seduction, the reviewing court would not control the trial judge's discretion in allowing leading questions, and a new trial would not be granted in such case unless it was plainly apparent that the judge in the exercise of that discretion manifestly abused the discretion, and that thereby the defendant suffered harm. Hanson v. State, 86 Ga. App. 313, 71 S.E.2d 720 (1952) (decided under former Code 1933, § 38-1706).
It was not objectionable as a leading question to ask a witness, "Do you know that boy over there?" pointing at the prisoner. Paschal v. State, 89 Ga. 303, 15 S.E. 322 (1892) (decided under former Code 1882, § 3865).
It was held not a leading question to ask a witness whether or not designated language was used in a given occasion. Fountain v. State, 7 Ga. App. 559, 67 S.E. 218 (1910) (decided under former Penal Code 1895, § 1019).
Question, "You know anything about making up any money to buy whiskey?" was held not objectionable. Hinsman v. State, 14 Ga. App. 481, 81 S.E. 367 (1914) (decided under former Penal Code 1910, § 1045).
When the plaintiff was called as a defense witness upon an objection to the witness being recalled for further cross-examination, this tactic entitled counsel for the plaintiff to cross-examine the witness just like any other defense witness, and while the court can, in the court's discretion, prohibit counsel from posing leading questions, there was no abuse of discretion in allowing the questions. Mercer v. Woodard, 166 Ga. App. 119, 303 S.E.2d 475 (1983) (decided under former O.C.G.A. § 24-9-63).
Witness with speech impediment.
- It was not an abuse of the trial court's discretion to permit one instance of leading a witness who testified that the witness suffered from a speech impediment. Parker v. State, 172 Ga. App. 540, 323 S.E.2d 826 (1984) (decided under former O.C.G.A. § 24-9-63).
Language barrier.
- When a witness exhibited a language barrier, to the extent that the court reporter had a hard time understanding the witness's answers to be able to adequately transcribe the answers, despite the fact that the witness spoke English, the trial court properly allowed the state to ask the witness leading questions. Dumas v. State, 283 Ga. App. 279, 641 S.E.2d 271 (2007) (decided under former O.C.G.A. § 24-9-63).
Insurer's cross-examination of own witness.
- Insurer was entitled to cross-examine insurer's own witness when the witness was determined to have played a key part in a case by, inter alia, finding items of importance matchable to plaintiff's car. Although the witness did not concededly fall within the expressly authorized categories in former O.C.G.A. § 24-9-81, former O.C.G.A. § 24-9-63 permitted such testimony in the interests of justice. Hicks v. Doe, 206 Ga. App. 596, 426 S.E.2d 174 (1992) (decided under former O.C.G.A. § 24-9-63).
Treatment of hostile witness.
- When a state's witness was nervous, attempted to evade the prosecutor's questions, and, when asked if the witness would tell the jury what happened at the time of the shooting, the witness said the witness would "rather not," the trial court properly allowed the state to treat the witness as a hostile witness and ask the witness leading questions. Culler v. State, 277 Ga. 717, 594 S.E.2d 631 (2004) (decided under former O.C.G.A. § 24-9-63).
Trial court did not err in allowing the state to treat one of the state's witnesses, the co-defendant, as a hostile witness, thereby allowing the state to ask leading questions because, although the co-defendant agreed in the plea agreement to testify truthfully about the methamphetamine operation and testify against the defendant, the co-defendant's testimony was not consistent with the proffer the state was given; the co-defendant professed ignorance about any of the items discovered during the search; and the co-defendant's testimony was evasive and unresponsive. Lopez-Vasquez v. State, 331 Ga. App. 570, 771 S.E.2d 218 (2015).
Cross-examination of one's own witness.
- Trial court properly allowed a wife to cross-examine two of her own witnesses to show that the husband fraudulently conveyed marital assets to a close friend and to a sister in anticipation of the divorce as such a determination was within the trial court's discretion pursuant to former O.C.G.A. § 24-9-63. Lanier v. Lanier, 278 Ga. 881, 608 S.E.2d 213 (2005) (decided under former O.C.G.A. § 24-9-63).
3. Not Permitted
Party's own witness.
- When the question to which an objection was sustained was leading in nature, it was not properly propounded on redirect examination of defendant's own witness. P.D. v. State, 151 Ga. App. 662, 261 S.E.2d 413 (1979) (decided under former Code 1933, § 38-1706).
After unfavorable answer.
- Mere fact that an unfavorable answer was given by the witness would not demand that counsel be allowed to ask leading questions of such witness so that a refusal to permit such questions would be an abuse of discretion. Perkins v. Edwards, 228 Ga. 470, 186 S.E.2d 109 (1971) (decided under former Code 1933, § 38-1706); Tucker v. Mappin, 149 Ga. App. 847, 256 S.E.2d 135 (1979);(decided under former Code 1933, § 38-1706).
On trial for assault with intent to rape, a question asked by the prosecutor, "Did defendant attempt to strip up your clothes," was held too leading. Wade v. State, 12 Ga. 25 (1852) (decided under former law).
Relevant Matter
Discretion of judge.
- Trial judge had discretion to control the scope and manner of cross-examination and this discretion will not be curtailed absent some clear abuse. Cochran v. Neely, 123 Ga. App. 500, 181 S.E.2d 511 (1971) (decided under former Code 1933, § 38-1704); Whitley v. State, 137 Ga. App. 68, 223 S.E.2d 17 (1975); Redd v. State, 141 Ga. App. 888, 234 S.E.2d 812 (1977) (decided under former Code 1933, § 38-1704);(decided under former Code 1933, § 38-1704).
Relevancy and materiality of a line of question rests, even on cross-examination, largely within the discretion of the trial judge. Lancette v. State, 151 Ga. App. 740, 261 S.E.2d 405 (1979) (decided under former Code 1933, § 38-1704).
Trial court judge did not abuse the judge's discretion by refusing to allow the defendant to cross-examine robbery victims as to their immigration status because such testimony was not relevant to the case and there was no pending immigration proceedings against the victims. Lemons v. State, 270 Ga. App. 743, 608 S.E.2d 15 (2004) (decided under former O.C.G.A. § 24-9-62).
Question for jury.
- Evidence of doubtful relevancy or competency should be admitted and the weight left to the jury. Crass v. State, 150 Ga. App. 374, 257 S.E.2d 909 (1979) (decided under former Code 1933, § 38-1704).
Highway land condemnation.
- When the question to be determined by the jury in condemnation proceedings was the value of the property at the time of the property's taking for public purposes on the date that the property was taken, which was the date that the property was condemned, the court did not err in restricting counsel in counsel's direct, rebuttal, and cross-examination of the witnesses with reference to knowledge of the condemnees that the highway was to be located at or near their property at the time they purchased the property, and in refusing to allow final argument thereon by counsel. State Hwy. Dep't v. Owens, 120 Ga. App. 647, 171 S.E.2d 770 (1969) (decided under former Code 1933, § 38-1704).
Improper Questions
Testing intelligence, memory, accuracy, or veracity.
- Question propounded by counsel on cross-examination is allowable for the purpose of testing the intelligence of the witness, or memory, accuracy, and veracity, but must not be argumentative. Loomis v. State, 78 Ga. App. 153, 51 S.E.2d 13 (1948) (decided under former Code 1933, § 38-1704).
Illegal or immoral conduct.
- Until a foundation showing the relevancy of a line of questioning is established so as to come within the "other crime" exception, one may not, under the guise of attacking the witness's credibility, ask questions suggesting illegal or immoral conduct in areas other than that before the court. Lancette v. State, 151 Ga. App. 740, 261 S.E.2d 405 (1979) (decided under former Code 1933, § 38-1704).
Accuracy.
- When in a suit on an account, in which the defendant denied receiving a certain portion of the goods, defendant's evidence was self-contradictory and in some degree inconsistent with the testimony of other witnesses, the trial judge did not abuse the judge's discretion in permitting counsel for the plaintiff to state to the defendant, by way of cross-examination, "I want to give you one more opportunity to correct your statement that you did not receive these two shipments of merchandise." Cohen v. Saffer, 43 Ga. App. 746, 160 S.E. 130 (1931) (decided under former Civil Code 1910, § 5870).
Chastity.
- Witnesses cannot be impeached by showing their lack of chastity since this bears no relevance to the case. Smith v. State, 235 Ga. 327, 219 S.E.2d 440 (1975) (decided under former Code 1933, § 38-1704).
Pregnancy of rape victim.
- In a prosecution for rape, the trial court properly barred defendant's crossexamination of a police officer about whether the victim's stepfather told the officer that someone had told the stepfather that the victim was pregnant. Lee v. State, 241 Ga. App. 182, 525 S.E.2d 426 (1999) (decided under former O.C.G.A. § 24-9-62).
Harsh or Insulting Demeanor
In general.
- Courts will not violate the right of a witness to have excluded an irrelevant document, of an impeaching nature, for which no foundation has been laid for submission of this evidence to the jury. Taylor v. Marsh, 107 Ga. App. 575, 130 S.E.2d 770 (1963) (decided under former Code 1933, § 38-1704).
Speaking too loudly.
- Trial court did not err by admonishing defendant's counsel for speaking too loudly when counsel questioned a 12-year old witness since the trial court did limit the type of questions that defendant could ask or in any way comment on the evidence, but rather, the trial court merely exercised the court's broad discretion to protect a witness from harsh or insulting demeanor. Schneider v. State, 267 Ga. App. 508, 603 S.E.2d 663 (2004) (decided under former .O.C.G.A. § 24-9-62).
Life style.
- It is improper argument to infer that witnesses are not worthy of belief because the witnesses are living in the same apartment while unmarried. Smith v. State, 235 Ga. 327, 219 S.E.2d 440 (1975) (decided under former Code 1933, § 38-1704).
Questioning reluctant witnesses.
- It is the privilege of counsel and the duty of courts to propound such questions to reluctant witnesses as will strip the witnesses of the subterfuges to which the witnesses resort to evade telling the truth. Kelly v. State, 19 Ga. 425 (1856) (decided under former law).
Repeated questions.
- Trial court properly prevented a defendant from questioning a witness for the fourth time as to whether the witness would tell a lie after the witness had answered the first three times with some variant of the word "no." Butler v. State, 285 Ga. 518, 678 S.E.2d 92 (2009) (decided under former O.C.G.A. § 24-9-62).
Principles of Impeachment
Neither the arrest nor the indictment of a witness is impeaching, since, until proof of conviction, the witness is protected by the legal presumption of innocence. Hood v. State, 179 Ga. App. 387, 346 S.E.2d 867 (1986) (decided under former O.C.G.A. § 24-9-81).
Impeachment of Own Witness
1. In General
Former statute prohibited a party from impeaching the party's own witness.
- See Ellenburg v. State, 239 Ga. 309, 236 S.E.2d 650 (1977) (decided under former Code 1933, § 38-1801).
Even if a trial court erred by allowing the state to impeach the state's own witness with a prior statement when the witness could not vouch for the statement's accuracy pursuant to former O.C.G.A. § 24-9-81, no harm resulted due to the overwhelming evidence of the defendant's guilt. Coleman v. State, 278 Ga. 486, 604 S.E.2d 151 (2004) (decided under former O.C.G.A. § 24-9-81).
Broad construction.
- Right to impeach one's own witness is broadly construed. Canady v. State, 147 Ga. App. 640, 249 S.E.2d 690 (1978) (decided under former Code 1933, § 38-1801); Robinson v. State, 150 Ga. App. 642, 258 S.E.2d 294 (1979);(decided under former Code 1933, § 38-1801).
Strict construction.
- Party may be "misled" but not "entrapped," since the former statute, which was in derogation of the common law and must be construed strictly, used the word "entrapped" and not "misled." Jeens v. Wrightsville & T.R.R., 144 Ga. 48, 85 S.E. 1055 (1915) (decided under former Civil Code 1910, § 5579) Jenkins v. State, 73 Ga. App. 515, 37 S.E.2d 230 (1946);(decided under former Code 1933, § 38-1801).
Applicability to state.
- Former statute applied to the state as well as to the defendant. Dixon v. State, 86 Ga. 754, 13 S.E. 87 (1891) (decided under former Code 1882, § 3869).
Treatment as hostile witness.
- Trial court did not err in declaring that defendant's cousin, who had earlier pled guilty to the theft for which defendant was on trial, was a hostile witness and in allowing the state to ask the cousin leading questions because the trial court had great latitude to allow the state to treat a person as a hostile witness and propound leading questions, and allowing it in the present case was proper because the state was not aware that the cousin would change the cousin's testimony at trial from earlier statements the cousin had made about the theft. Wilson v. State, 258 Ga. App. 166, 573 S.E.2d 432 (2002) (decided under former O.C.G.A. § 24-9-81).
Effect of exercising constitutional privilege.
- After defendant's counsel pled entrapment but when called upon to testify, the defendant availed under oath the constitutional privilege of refusing to answer on the ground that to answer might tend to incriminate the defendant, and thereafter counsel attempted to cross-examine the witness as to what this witness told counsel about the circumstances surrounding this matter, the court erred in refusing to allow a thorough and sifting cross-examination of the witness as to the entrapment. Interstate Life & Accident Ins. Co. v. Wilmont, 123 Ga. App. 337, 180 S.E.2d 913 (1971) (decided under former Code 1933, § 38-1801).
Entrapment refers to the right of a party to impeach the party's own witness after the party testifies to matters which are contradictory to statements previously made, authorizing a thorough and sifting cross-examination of the party's own witness. Interstate Life & Accident Ins. Co. v. Wilmont, 123 Ga. App. 337, 180 S.E.2d 913 (1971) (decided under former Code 1933, § 38-1801).
Function of cross-examination.
- When the introduction of earlier out-of-court statements might occasion confusion, it is the function of a thorough and sifting cross-examination to explore the circumstances of each of the witness's pronouncements in the ultimate quest for truth. Wilson v. State, 235 Ga. 470, 219 S.E.2d 756 (1975) (decided under former Code 1933, § 38-1801).
Testimony cannot be withdrawn.
- Witness who has delivered testimony hurtful to the party introducing the witness cannot be withdrawn; but if the party has been entrapped by the witness, the law permits the witness's impeachment by the party introducing the witness. Zipperer v. Mayor of Savannah, 128 Ga. 135, 57 S.E. 311 (1907) (decided under former Civil Code 1895, § 5290).
Showing contradictions of facts.
- Although a party may not impeach the party's own witness, unless entrapped by the party, the party may show that the facts are different from the statement of the witness. Cronan v. Roberts & Co., 65 Ga. 678 (1880) (decided under former Code 1873, § 3869); Hollingsworth v. State, 79 Ga. 605, 4 S.E. 560 (1887); McElmurray v. Turner, 86 Ga. 215, 12 S.E. 359 (1890) (decided under former Code 1882, § 3869); Christian v. Macon Ry. & Light Co., 120 Ga. 314, 47 S.E. 923 (1904); Moultrie Repair Co. v. Hill, 120 Ga. 730, 48 S.E. 143 (1904) (decided under former Code 1882, § 3869); Robert R. Sizer & Co. v. G. T. Melton & Sons, 129 Ga. 143, 58 S.E. 1055 (1907); Luke v. Cannon, 4 Ga. App. 538, 62 S.E. 110 (1908) (decided under former Civil Code 1895, § 5290); Sessions v. State, 6 Ga. App. 336, 64 S.E. 1101 (1909); Carter & Martin v. Carter, 7 Ga. App. 216, 66 S.E. 630 (1909) (decided under former Civil Code 1895, § 5290); Southern Ry. v. Wessinger, 32 Ga. App. 551, 124 S.E. 100; 32 Ga. App. 807 (1924) (decided under former Civil Code 1895, § 5290); Lewis v. American Rd. Ins. Co., 119 Ga. App. 507, 167 S.E.2d 729 (1969);(decided under former Civil Code 1895, § 5290);(decided under former Penal Code 1895, § 1024);(decided under former Civil Code 1895, § 5290);cert. denied,(decided under former Civil Code 1910, § 5879);(decided under former Code 1933, § 38-1801).
Refusal to respond to questions in discovery proceedings is not tantamount to making a statement or giving testimony contradictory to testimony on trial. Lewis v. American Rd. Ins. Co., 119 Ga. App. 507, 167 S.E.2d 729 (1969) (decided under former Code 1933, § 38-1801).
Putting witness up merely for purpose of discrediting the witness, or merely to lay a foundation for the witness to be contradicted on a material point and thereby rendered unworthy of belief, is reversible error. Eberhart v. State, 121 Ga. App. 663, 175 S.E.2d 73 (1970) (decided under former Code 1933, § 38-1801).
Proof of bad character.
- One who knows the general bad character of a witness by reason of previous felony convictions should not be allowed first to impliedly accredit the witness by offering the witness before a jury as worthy of belief, and then, when entrapped by the witness's testimony, prove, in addition to the contradictory statements by which the witness was surprised and deceived, the general bad character which neither surprised nor misled the witness. Kitchens v. Hall, 116 Ga. App. 41, 156 S.E.2d 920 (1967) (decided under former Code 1933, § 38-1801).
Trial court did not err by refusing to allow defendant to impeach the defendant's own witness, who had not been declared hostile, by proof of convictions of misdemeanors involving moral turpitude. Paradise v. State, 212 Ga. App. 166, 441 S.E.2d 497 (1994) (decided under former O.C.G.A. § 24-9-81).
Either party may waive the former statutory requirements and allow a party to impeach the party's own witness without first having shown the court that the witness had entrapped the party. O'Dell v. State, 120 Ga. 152, 47 S.E. 577 (1904) (decided under former Penal Code 1895, § 1024).
Directing witness to time and place of previous testimony.
- Witness cannot be impeached by proof of contradictory statement until the witness's attention has been directed to the time, as well as the place, at which the alleged previous contradictory statements are alleged to have been made. Luke v. Cannon, 4 Ga. App. 538, 62 S.E. 110 (1908) (decided under former Civil Code 1895, § 5290).
Admission for impeachment only.
- When impeachment is allowed, the prior inconsistent statement is admitted in evidence for impeachment purposes only. Kemp v. State, 214 Ga. 558, 105 S.E.2d 582 (1958) (decided under former Code 1933, § 38-1801); Wilson v. State, 235 Ga. 470, 219 S.E.2d 756 (1975);(decided under former Code 1933, § 38-1801).
Impeachment of prior testimony.
- Trial court did not err in allowing one of the state's witnesses to testify that another state witness told the witness immediately before the shooting that the witness had seen the defendant get a gun from the car in which the defendant was a passenger that night because the statement was offered and admitted to impeach the other witness's prior testimony that the witness had never witnessed the defendant retrieve anything from the car after the concert. Anderson v. State, 286 Ga. 57, 685 S.E.2d 716 (2009) (decided under former O.C.G.A. § 24-9-81).
Improper admission of inconsistent statement harmless error.
- In a divorce proceeding, admission of the testimony of a witness called by a spouse that impeached the testimony of the other spouse's lover, also called by the spouse, would have been proper as prior inconsistent statements under former O.C.G.A. §§ 24-9-81 and24-9-83 (see now O.C.G.A. §§ 24-6-608 and24-6-611), but the timing of the impeaching testimony before the lover's testimony made the admission improper; there was no harm in the error, however, because the spouse's lover was called as a witness and was questioned about the contradictory statements. Moxley v. Moxley, 281 Ga. 326, 638 S.E.2d 284 (2006) (decided under former O.C.G.A. § 24-9-81).
Deposition admitted for impeachment.
- When it appears that the witness was questioned about the depositions while the witness was on the stand, and that the witness testified somewhat at variance from the depositions, it was not an abuse of discretion for the court to allow the depositions in evidence for the purpose of impeachment. Parker & Co. v. Glenn, 90 Ga. App. 500, 83 S.E.2d 263 (1954) (decided under former Code 1933, § 38-1801).
Admission of repudiated statement.
- It was not erroneous to admit a written statement later repudiated by a witness, over the objection made to the state's admission, since the repudiation would tend to impeach the witness. Fincher v. State, 211 Ga. 89, 84 S.E.2d 76 (1954) (decided under former Code 1933, § 38-1801).
When, on direct examination, a witness testified that the witness had lied in a statement the witness gave the police, the trial court did not err in allowing the state to impeach the state's own witness by admitting the witness's prior inconsistent statement as substantive evidence. Willis v. State, 214 Ga. App. 659, 448 S.E.2d 755 (1994) (decided under former O.C.G.A. § 24-9-81).
No application to witness who must explain or deny contradictory statement.
- First sentence of former O.C.G.A. § 24-9-81 was applicable to impeachment of witnesses by prior contradictory statements, but since a prior contradictory statement of a witness was admissible as substantive evidence, the first sentence was inapplicable to a witness who must be given an opportunity to explain or deny the prior contradictory statement. Riley v. State, 166 Ga. App. 369, 304 S.E.2d 497 (1983) (decided under former O.C.G.A. § 24-9-81).
Inconsistent statement admissible for impeachment purposes only.
- When impeachment of one's own witness is allowed, the prior inconsistent statement is admitted in evidence for impeachment purposes only and not to prove the truth of the prior statement. Arnold v. State, 166 Ga. App. 313, 304 S.E.2d 118 (1983) (decided under former O.C.G.A. § 24-9-81).
Use of prior inconsistent statements.
- Prior inconsistent statement of a witness who takes the stand and is subject to cross-examination is admissible as substantive evidence and is not limited in value only to impeachment purposes. Ranger v. State, 249 Ga. 315, 290 S.E.2d 63 (1982) (decided under former O.C.G.A. § 24-9-81); Riley v. State, 166 Ga. App. 369, 304 S.E.2d 497 (1983); Jackson v. Ensley, 168 Ga. App. 822, 310 S.E.2d 707 (1983) (decided under former O.C.G.A. § 24-9-81);(decided under former O.C.G.A. § 24-9-81).
In defendant's trial on a charge that the defendant molested his 13-year-old stepdaughter by touching her "private area" and placing his hands under her shirt, the record did not support defendant's claim that the state called the stepdaughter's mother solely for the purpose of impeaching her, and the trial court properly allowed the state to call two investigators to testify that the mother gave them a statement that was not the same as her testimony at trial. Black v. State, 261 Ga. App. 263, 582 S.E.2d 213 (2003) (decided under former O.C.G.A. § 24-9-81).
Witness's testimony that the witness did not recall details included in a prior statement given to police was inconsistent with the prior statement about those details, and thus, the requirements of former O.C.G.A. § 24-9-81 were met; a trial court thus properly allowed the state to impeach the state's own witness who, inter alia, denied having previously identified the defendant as the shooter in a murder incident. Cummings v. State, 280 Ga. 831, 632 S.E.2d 152 (2006) (decided under former O.C.G.A. § 24-9-81).
Defendant as witness for state.
- Introduction by state in a criminal prosecution of defendant's statement to police did not make defendant a witness for the state. Wiley v. State, 250 Ga. 343, 296 S.E.2d 714 (1982) (decided under former O.C.G.A. § 24-9-81).
When counsel elicits testimony unfavorable to a client, counsel will not be heard to object to the testimony, no matter how prejudicial the testimony may be, if the testimony is a direct and pertinent response to the question propounded. Rutland v. State, 158 Ga. App. 315, 279 S.E.2d 757 (1981) (decided under former Code 1933, § 38-1801).
2. What Must Be Shown
Statement made to party or attorney.
- Party may not impeach party's own witness by proof of a previous contradictory statement, even if the party claims to have been surprised and entrapped, unless the statement was made directly to the party or the party's attorney, or was made to some third person with instruction to communicate it or for the purpose of being communicated to the party or the party's counsel. Jeens v. Wrightsville & T.R.R., 144 Ga. 48, 85 S.E. 1055 (1915) (decided under former Civil Code 1910, § 5879); Carter v. State, 17 Ga. App. 244, 86 S.E. 413 (1915); Burns v. State, 20 Ga. App. 77, 92 S.E. 548 (1917) (decided under former Penal Code 1910, § 1050); Allen v. State, 71 Ga. App. 517, 31 S.E.2d 107 (1944); Sparks v. State, 209 Ga. 250, 71 S.E.2d 608 (1952) (decided under former Penal Code 1910, § 1050);(decided under former Code 1933, § 38-1801);(decided under former Code 1933, § 38-1801).
Statements made to others.
- Prior inconsistent statements made by a witness called by the state were not limited to those given to police investigators or prosecuting attorneys. Park v. State, 230 Ga. App. 274, 495 S.E.2d 886 (1998) (decided under former O.C.G.A. § 24-9-81).
Showing of entrapment required.
- Prosecutor must show to the court that the prosecutor has been entrapped by the witness by a previous contradictory statement. Jenkins v. State, 73 Ga. App. 515, 37 S.E.2d 230 (1946) (decided under former Code 1933, § 38-1801).
One's own witness may be impeached when one can show the court that one has been entrapped by that witness by a previous contradictory statement. James v. State, 157 Ga. App. 763, 278 S.E.2d 696 (1981) (decided under former Code 1933, § 38-1801).
Party may not impeach party's own witness without a showing of entrapment. Hood v. State, 179 Ga. App. 387, 346 S.E.2d 867 (1986) (decided under former O.C.G.A. § 24-9-81).
Impeachment error absent entrapment.
- Admittance of a certified copy of a witness's prior felony conviction was harmful error if it was for the purpose of impeachment, no announcement having been made by the state that this witness was being called for the purpose of cross-examination and no entrapment on the part of the witness having been shown. Hicks v. State, 204 Ga. App. 232, 418 S.E.2d 794 (1992) (decided under former O.C.G.A. § 24-9-81).
Surprise and prejudice.
- Term "entrapment" required that one desiring to impeach one's own witness show both surprise and prejudice by the actual testimony as opposed to the earlier statement. Wilson v. State, 235 Ga. 470, 219 S.E.2d 756 (1975) (decided under former Code 1933, § 38-1801).
While a defendant was entitled to cross-examine a state's witness about pending criminal charges to show the witness's bias, that right did not extend to the defendant's own witness when the defendant failed to show surprise or entrapment by the witness's previous contradictory statement. Arnold v. State, 284 Ga. App. 598, 645 S.E.2d 68 (2007) (decided under former O.C.G.A. § 24-9-81).
Total surprise unnecessary.
- To establish entrapment, it is not required that the witness's testimony be a total surprise or that it be affirmatively damaging. Wilson v. State, 235 Ga. 470, 219 S.E.2d 756 (1975) (decided under former Code 1933, § 38-1801); Ellenburg v. State, 239 Ga. 309, 236 S.E.2d 650 (1977); Johnson v. State, 150 Ga. App. 405, 258 S.E.2d 22 (1979) (decided under former Code 1933, § 38-1801); Wofford v. State, 152 Ga. App. 739, 263 S.E.2d 707 (1979); Bryant v. State, 155 Ga. App. 652, 271 S.E.2d 904 (1980) (decided under former Code 1933, § 38-1801); Andrews v. State, 156 Ga. App. 734, 275 S.E.2d 782 (1980); Young v. State, 156 Ga. App. 865, 275 S.E.2d 804 (1981) (decided under former Code 1933, § 38-1801); Ingram v. State, 161 Ga. App. 5, 288 S.E.2d 842 (1982); Davis v. State, 249 Ga. 309, 290 S.E.2d 273 (1982) (decided under former Code 1933, § 38-1801);(decided under former Code 1933, § 38-1801);(decided under former Code 1933, § 38-1801);(decided under former O.C.G.A. § 24-9-81);(decided under former O.C.G.A. § 24-9-81).
Prior showing of surprise unnecessary.
- Since it is not error for the trial judge to allow an attorney to cross-examine and lead the witness without first subjecting the attorney personally to an examination, any rule under which a showing of surprise and prejudice must first be made is wrong. Wilson v. State, 235 Ga. 470, 219 S.E.2d 756 (1975) (decided under former Code 1933, § 38-1801).
What constitutes surprise.
- Even though the state in a criminal case knows of a repudiation of an earlier statement by one of the state's witnesses before one testifies at trial, if it only goes to the details of the defendant's alleged confession, there is still sufficient "surprise" to admit into evidence the witness's prior statement for impeachment purposes only. Wilson v. State, 235 Ga. 470, 219 S.E.2d 756 (1975) (decided under former Code 1933, § 38-1801).
Showing of surprise is no longer required before a party is allowed to impeach the party's own witness. Davis v. State, 249 Ga. 309, 290 S.E.2d 273 (1982) (decided under former O.C.G.A. § 24-9-81); Coleman v. State, 162 Ga. App. 340, 291 S.E.2d 402 (1982);(decided under former O.C.G.A. § 24-9-81).
Surprise or prejudice unnecessary.
- To meet the requirement of establishing entrapment before one might impeach one's own witness, a showing of prejudice or surprise is no longer necessary. Peterson v. State, 166 Ga. App. 719, 305 S.E.2d 447 (1983) (decided under former O.C.G.A. § 24-9-81).
Refusing party opportunity to introduce further testimony.
- There is no abuse of discretion if the trial court refuses party opportunity to introduce further evidence which would impeach the party's previous testimony absent surprise or entrapment. Gorrell v. Fowler, 248 Ga. 801, 286 S.E.2d 13, appeal dismissed, 457 U.S. 1113, 102 S. Ct. 2918, 73 L. Ed. 2d 1324 (1982) (decided under former O.C.G.A. § 24-9-81).
Belief of prosecutor.
- To establish entrapment, it is sufficient that the prosecutor believed the witness would testify consistently with the earlier testimony. Johnson v. State, 150 Ga. App. 405, 258 S.E.2d 22 (1979) (decided under former Code 1933, § 38-1801); Bryant v. State, 155 Ga. App. 652, 271 S.E.2d 904 (1980);(decided under former Code 1933, § 38-1801).
Statement by district attorney that the district attorney has been surprised by the testimony is sufficient, in the absence of a showing to the contrary, to show entrapment. Thomas v. State, 239 Ga. 734, 238 S.E.2d 888 (1977) (decided under former Code 1933, § 38-1801); James v. State, 157 Ga. App. 763, 278 S.E.2d 696 (1981); Foskey v. State, 229 Ga. App. 209, 493 S.E.2d 595 (1997) (decided under former Code 1933, § 38-1801);(decided under former O.C.G.A. § 24-9-81).
Testimony failing to bolster case.
- Trial court does not err in allowing the district attorney to impeach the state's own witness by introducing prior inconsistent statements, even though the witness's testimony did not damage the state's case save by failing to bolster it as hoped. Wilson v. State, 235 Ga. 470, 219 S.E.2d 756 (1975) (decided under former Code 1933, § 38-1801).
Inconsistent testimony.
- Impeachment is allowed when the testimony is merely "inconsistent" with a prior written statement. Wilson v. State, 235 Ga. 470, 219 S.E.2d 756 (1975) (decided under former Code 1933, § 38-1801).
Although the requirements of surprise and prejudice have been removed from the element of entrapment in the former statute, the plain language of former O.C.G.A. § 24-9-81 still required as a threshold matter a showing that the witness made a statement inconsistent with the witness's testimony at trial. Jones v. State, 270 Ga. 25, 505 S.E.2d 749 (1998) (decided under former O.C.G.A. § 24-9-81).
Cross-examination not error.
- When the prosecutor stated that the prosecutor had been entrapped by a witness called by the prosecutor and further proved the entrapment by introducing a written statement made by the witness which was contrary to the witness's testimony given upon the trial, it was not error for the trial court to permit the prosecutor to cross-examine the witness. Allen v. State, 71 Ga. App. 517, 31 S.E.2d 107 (1944) (decided under former Code 1933, § 38-1801); Anderson v. State, 103 Ga. App. 83, 118 S.E.2d 381 (1961); Lashley v. State, 132 Ga. App. 427, 208 S.E.2d 200 (1974) (decided under former Code 1933, § 38-1801);(decided under former Code 1933, § 38-1801).
No entrapment shown.
- Evidence did not show that the prosecutor was entrapped by a witness. King v. State, 166 Ga. 10, 142 S.E. 160 (1928) (decided under former Penal Code 1910, § 1050).
Examination of Opposite Party
1. In General
Real purpose of former statute was that of allowing a party to call for cross-examination those persons who by reason of a relationship existing at the time of the examination were subject to "all of the pressures and possible prejudices . . . which that relationship would tend to engender," and when such relationship was no longer in existence it was not error, in the absence of any basis other than a former relationship, to refuse to allow the party calling the witness to treat such person as an adverse witness. Atlanta Americana Motor Hotel Corp. v. Sika Chem. Corp., 117 Ga. App. 707, 161 S.E.2d 342 (1968) (decided under former Code 1933, § 38-1801).
Use of former statute not presumed.
- There was no presumption to the effect that when one party puts an opposing party on the stand, or puts an agent or officer of the opposing party on the stand, the witness was put on the stand for the purpose of cross-examination and not as a witness for the party putting such a witness on the stand. Wight Hdwe. Co. v. American Lubricants Co., 91 Ga. App. 339, 85 S.E.2d 507 (1954) (decided under former Code 1933, § 38-1801).
Balancing of rights.
- Former statute, providing for the right of thorough and sifting cross-examination, must be balanced with the former statute, protecting the right of a witness to be examined only as to relevant matter and to be protected from improper questions and from harsh or insulting demeanor. Crawford v. State, 144 Ga. App. 622, 241 S.E.2d 492 (1978), overruled on other grounds, Stephens v. State, 245 Ga. 825, 268 S.E.2d 330 (1980) (decided under former Code 1933, §§ 38-1704 and 38-1801).
"Present" and "available" are not criteria for determining the qualification of witness for cross-examination. A person not a party may be called for such purpose only if such person is one for whose immediate benefit such suit is prosecuted or defended or is an agent of that party or agent of any person for whose immediate benefit such suit is prosecuted or defended or is an official or agent of a corporation when a corporation is such party, or for whose benefit such suit is prosecuted or defended. Logan v. Turner, 97 Ga. App. 866, 104 S.E.2d 627 (1958) (decided under former Code 1933, § 38-1801); Mullis v. Chaika, 118 Ga. App. 11, 162 S.E.2d 448 (1968);(decided under former Code 1933, § 38-1801).
Calling opposite party for direct examination.
- When the witness is called to the stand for cross-examination, it is to be understood that the opposite party is to be examined, but a plaintiff who merely calls a defendant as "a witness against himself" in order to prove a prima facie case is not proceeding under the provisions thereof. Jones v. Chambers, 94 Ga. App. 433, 95 S.E.2d 335 (1956) (decided under former Code 1933, § 38-1801).
Calling opposite party for purposes of impeachment.
- When defendant was not permitted to recall the victim as the defendant's own witness for purposes of impeachment, since there was no showing of entrapment, this is not permitted. Mingo v. State, 195 Ga. App. 438, 394 S.E.2d 104 (1990) (decided under former O.C.G.A. § 24-9-81).
Impeachment on drug use.
- Trial court did not err by prohibiting the defendant from questioning the witness about prior drug use in general as the defendant was permitted to ask whether the witness was under the influence at the time the witness saw the two men outside the victim's house. Boothe v. State, 293 Ga. 285, 745 S.E.2d 594 (2013)(decided under former O.C.G.A. § 24-9-62).
Belated announcement of calling adverse party as witness.
- If the adverse party or agent as specified in former O.C.G.A. § 24-9-81 is called, and an announcement is made by the calling party that the witness was being called for cross-examination, but that announcement was not timely made, the calling party may cross-examine the adverse witness and the other party may or may not be allowed to cross-examine the witness, in the discretion of the trial court, depending upon when in the course of the witness's testimony the announcement was made, the relationship and attitude of the witness to the parties, and the nature of the testimony given or sought to be elicited. Colwell v. Voyager Cas. Ins. Co., 251 Ga. 744, 309 S.E.2d 617 (1983) (decided under former O.C.G.A. § 24-9-81).
Cross-examination within court's discretion.
- When a witness had been called for cross-examination under former O.C.G.A. § 24-9-81, it was within the discretion of the trial court to allow the witness to be cross-examined by the attorney for the opposite party, as well as to ask leading questions. Thomas v. Baxter, 234 Ga. App. 663, 507 S.E.2d 766 (1998) (decided under former O.C.G.A. § 24-9-81).
Trial court erred in improperly limiting defense counsel's cross-examination of the alleged victim's financial interest in the trial based upon the victim's claim for financial assistance from the Georgia Crime Victims Emergency Fund. Bowen v. State, 252 Ga. App. 382, 556 S.E.2d 252 (2001) (decided under former O.C.G.A. § 24-9-81).
Subsequent examination by own attorney.
- When the opposite party has been called as a witness for cross-examination, it is within the discretion of the court as to whether to allow the witness to be questioned by the witness's own attorney at the conclusion of the examination by the opposite party. Scarborough v. Wilson, 36 Ga. App. 428, 136 S.E. 830 (1927) (decided under former Civil Code 1910, § 5879); Akridge v. Atlanta Journal Co., 56 Ga. App. 812, 194 S.E. 590 (1937); Davis v. Wright, 194 Ga. 1, 21 S.E.2d 88 (1942) (decided under former Code 1933, § 38-1801); Barton v. Strickland, 208 Ga. 163, 65 S.E.2d 602 (1951); Southeastern Metal Prods., Inc. v. De Vaughn, 99 Ga. App. 569, 109 S.E.2d 305 (1959) (decided under former Code 1933, § 38-1801);(decided under former Code 1933, § 38-1801);(decided under former Code 1933, § 38-1801).
Cross-examination on irrelevant matters.
- It is not error to refuse to allow a party to call for cross-examination of a former employee, even though while employed the employee may have been an agent of the opposite party within the sense of the term, although it may be error, as an abuse of discretion, to allow a party to call an employee of the other party for cross-examination on irrelevant matters, irrespective of whether the employee's actions were within or outside the employee's authority as an agent. Atlanta Americana Motor Hotel Corp. v. Sika Chem. Corp., 117 Ga. App. 707, 161 S.E.2d 342 (1968) (decided under former Code 1933, § 38-1801).
There was no prohibition about the prior inconsistent statement being lengthier than the in-court testimony; also, the fact that a witness admitted to making the inconsistent pre-trial statement did not render the statement inadmissible. Warner v. State, 281 Ga. 763, 642 S.E.2d 821 (2007) (decided under former O.C.G.A. § 24-9-81).
2. Who May Be Examined
Agent at time of trial.
- Former statute was intended to apply only to those situations where the witness sought to be examined was, at the time of trial, an agent of an opposite party; for only at that time would such witness be subject to pressure and possible prejudice in favor of one's present employer. Mullis v. Chaika, 118 Ga. App. 11, 162 S.E.2d 448 (1968) (decided under former Code 1933, § 38-1801).
Definition of agent.
- Word "agent" meant any agent available to the party (principal) as a witness in a pending case, and did not refer merely to an agent who had some relation or connection with the transaction in litigation. Mullis v. Chaika, 118 Ga. App. 11, 162 S.E.2d 448 (1968) (decided under former Code 1933, § 38-1801).
Agency can be proved by agent's sworn testimony.
- See Terminal Transp. Co. v. Decatur Truck & Equip. Co., 90 Ga. App. 859, 84 S.E.2d 494 (1954) (decided under former Code 1933, § 38-1801).
Prosecution witness not agent or party.
- Former statute did not permit a defendant to call a prosecution witness for cross-examination as an agent of the state or as a party for whom the suit was being prosecuted. Bentley v. State, 131 Ga. App. 425, 205 S.E.2d 904 (1974) (decided under former Code 1933, § 38-1801).
When plaintiff is called as defense witness.
- When the plaintiff is called as a defense witness upon an objection to the plaintiff's being recalled for further cross-examination, this tactic entitles counsel for the plaintiff to cross-examine plaintiff just like any other defense witness, and while the court can, in the court's discretion, prohibit counsel from posing leading questions, there is no abuse of discretion in allowing those questions. Mercer v. Woodard, 166 Ga. App. 119, 303 S.E.2d 475 (1983) (decided under former O.C.G.A. § 24-9-81).
Deponent as opposite party.
- Mere fact that, prior to the trial, the plaintiff had taken a deposition of the president of the defendant corporation, who was subpoenaed "to testify and the truth say in behalf of the plaintiff," would not prevent the president being called by the plaintiff at the trial of the case for the purpose of cross-examination since the deposition was not introduced in evidence at the trial. Southeastern Metal Prods., Inc. v. De Vaughn, 99 Ga. App. 569, 109 S.E.2d 305 (1959) (decided under former Code 1933, § 38-1801).
Third-party defendant.
- Trial court properly allowed party to call third-party defendant as witness for purposes of cross-examination. Ranger Constr. Co. v. Robertshaw Controls Co., 166 Ga. App. 679, 305 S.E.2d 361 (1983) (decided under former O.C.G.A. § 24-9-81); Wilson v. Childers, 174 Ga. App. 179, 329 S.E.2d 503 (1985);(decided under former O.C.G.A. § 24-9-81).
Agent of opposing party at time of trial.
- When a witness called by the plaintiff was a former employee of the plaintiff and was employed by the defendant at the time of trial, under the provisions of former O.C.G.A. § 24-9-81 plaintiff had a right to cross-examine the witness as an agent of the opposite party, although there was no showing that the witness was a hostile witness. Henderson v. Glen Oak, Inc., 179 Ga. App. 380, 346 S.E.2d 842 (1986), aff'd, 256 Ga. 619, 351 S.E.2d 640 (1987) (decided under former O.C.G.A. § 24-9-81).
Effect of testimony.
- When witness sworn by plaintiff testified as the defendant corporation's employee, the legal effect of the employee's testimony conflicting with that of another witness called by plaintiff would be the same as if they had both been sworn as the plaintiff's witnesses generally. Emory Univ. v. Lee, 97 Ga. App. 680, 104 S.E.2d 234 (1958) (decided under former Code 1933, § 38-1801).
Witness previously sworn.
- When the firefighter was agent of the opposite party within the meaning of the former statute, the fact that this witness was previously sworn in behalf of the plaintiff would not prevent the witness being called by the plaintiff for the purpose of cross-examination. Thompson v. Central of Ga. Ry., 102 Ga. App. 5, 115 S.E.2d 471 (1960) (decided under former Code 1933, § 38-1801).
Witness not agent.
- When witness called by plaintiff to testify under cross-examination was not an agent of the defendant individually and since the action was not prosecuted or defended for the witness's immediate benefit and since the witness was not an agent of any person for whose immediate benefit the suit was prosecuted or defended, the witness was not qualified as a witness for cross-examination. Logan v. Turner, 97 Ga. App. 866, 104 S.E.2d 627 (1958) (decided under former Code 1933, § 38-1801).
Employee as agent.
- One in the employ of another is subject to all the pressure and possible prejudice in favor of one's employer which such relationship would tend to engender and therefore should be subject to cross-examination by the opposite party. Terminal Transp. Co. v. Decatur Truck & Equip. Co., 90 Ga. App. 859, 84 S.E.2d 494 (1954) (decided under former Code 1933, § 38-1801); Mullis v. Chaika, 118 Ga. App. 11, 162 S.E.2d 448 (1968);(decided under former Code 1933, § 38-1801).
Former employees.
- Former statute did not allow the cross-examination of ex-employees of a party. Massey Junior College v. Taggart, 140 Ga. App. 591, 231 S.E.2d 540 (1976) (decided under former Code 1933, § 38-1801).
Corporation or individual as principal.
- When an employee of the opposite party is called on the theory that such employee is the agent of that party, the procedure is equally proper whether the principal is in fact a corporation or an individual. Wall v. Rhodes, 112 Ga. App. 572, 145 S.E.2d 756 (1965) (decided under former O.C.G.A. § 24-9-81).
Operator of bus being used as a common carrier of passengers is the agent and alter ego of the common carrier bus company, and as such is subject to cross-examination by the opposite party, and to refuse the opposite party such right is error. Huell v. Southeastern Stages, Inc., 78 Ga. App. 311, 50 S.E.2d 745 (1948) (decided under former Code 1933, § 38-1801).
Agents of school board.
- Provisions of former statute were broad enough to include agents of a school board and the principal of a school which was destroyed by fire. Rodgers v. Styles, 100 Ga. App. 124, 110 S.E.2d 582 (1959) (decided under former Code 1933, § 38-1801).
Legatee.
- Former statute was applicable on appeal from probate of a will in solemn form; person designated as a legatee in the will, whose interest would be adversely affected if the caveat should be sustained, may be called as a witness by the caveatrix for the purpose of cross-examination and impeachment. Peretzman v. Simon, 185 Ga. 681, 196 S.E. 471 (1938) (decided under former Code 1933, § 38-1801).
Endorser of check.
- When one defendant was sued as an endorser and two other defendants as makers, and the case was in default as to the endorser, the court did not err in not permitting the plaintiff (holder of the check) to put the endorser on the stand for cross-examination for the purpose of making out a case against the makers. A.J. Cannon & Co. v. Collier, 91 Ga. App. 40, 84 S.E.2d 482 (1954) (decided under former Code 1933, § 38-1801).
Parent in termination proceeding.
- Former O.C.G.A. § 24-9-81 applied to termination proceedings which were civil, not criminal, in nature; therefore, a mother had no right to refuse to be called as a witness for cross-examination by the Department of Family and Children Services. In the Interest of A.R.A.S., 278 Ga. App. 608, 629 S.E.2d 822 (2006) (decided under former O.C.G.A. § 24-9-81).
Defendant's mother questioned about prior inconsistent statement.
- State properly questioned defendant's mother as to whether the mother believed that the crimes defendant was on trial for were gang-related as the question was asked for the purpose of laying a foundation to introduce the mother's prior inconsistent statement after the mother had testified in response to a defense question that the mother did not believe that the defendant was involved in gang activity, pursuant to former O.C.G.A. §§ 24-9-81 and24-9-83 (see now O.C.G.A. §§ 24-6-608 and24-6-611). Garrett v. State, 280 Ga. 30, 622 S.E.2d 323 (2005) (decided under former O.C.G.A. § 24-9-81).
Examination of Own Witness
Insurer's cross-examination of own witness.
- Insurer was entitled to cross-examine insurer's own witness after witness was determined to have played a key part in the case by, inter alia, finding items of importance matchable to plaintiff's car. Although a witness did not concededly fall within the expressly authorized categories of former O.C.G.A. § 24-9-81, former O.C.G.A. § 24-9-63 permitted such testimony in the interests of justice. Hicks v. Doe, 206 Ga. App. 596, 426 S.E.2d 174 (1992) (decided under former O.C.G.A. § 24-9-81).
Use of inconsistent prior statements.
- Because a state witness, who was also one of defendant's cohorts, was evasive concerning the facts stated in the witness's prior interview and also testified to facts that were inconsistent with those previously stated in the interview, the trial court did not err in permitting the state to ask leading questions or in allowing the taped interview to be introduced into evidence. Johnson v. State, 279 Ga. App. 489, 631 S.E.2d 720 (2006) (decided under former O.C.G.A. § 24-9-81).
Requirements for Appeal
Objection required.
- If no objection was made to the asking of leading questions, the allowance of such questions will furnish no ground for a new trial. Cotton States Life Ins. Co. v. Edwards, 74 Ga. 220 (1884) (decided under former Code 1882, § 3865).
Defendant must demonstrate specific instances of abuse of discretion on appeal.
- When defendant failed to demonstrate that the trial court abused the court's discretion in permitting the state on specific occasions to lead the state's witnesses, this precluded the Court of Appeals from finding error in the trial court's exercise of discretion. Hammond v. State, 157 Ga. App. 647, 278 S.E.2d 188 (1981) (decided under former Code 1933, § 38-1706).
RESEARCH REFERENCES
Am. Jur. 2d.
- 81 Am. Jur. 2d, Witnesses, §§ 447 et seq., 501, 506, 509, 771.
Criminal Law - Need for Disclosure of Identity of Informant, 33 POF2d 549.
C.J.S.- 32 C.J.S., Evidence, §§ 720, 735 et seq., 750, 757, 760, 769, 770.
ALR.
- Abuse of witness by counsel as ground for new trial or reversal, 4 A.L.R. 414.
Estoppel of party to contradict what he testified to, adversely to his present opponent, in a prior action to which he was not a party, 5 A.L.R. 1505.
Cross-examination of witness called to testify on particular point or under order of court, 7 A.L.R. 1116.
Right of defendant in a criminal case to cross-examine a codefendant who has taken the stand in his own behalf, 33 A.L.R. 826.
Impeaching witness examined by both parties, 54 A.L.R. 1374.
Cross-examination as to sexual morality for purpose of affecting credibility of witness, 65 A.L.R. 410.
Right of defendant in criminal case to cross-examine police officials regarding conduct or practices by them calculated to contribute to delinquency of other persons, 68 A.L.R. 1043.
Right of party surprised by unfavorable testimony of own witness to ask him concerning previous inconsistent statements, 74 A.L.R. 1042.
Assumption by question put to witness of fact in issue, 100 A.L.R. 1067.
Right to cross-examine witness in respect of facts not included in his direct examination, but which negative a prima facie case, presumption, or inference otherwise made by his testimony on direct examination, 108 A.L.R. 167.
Proper practice and relief on development of hostility by party's own witness, 117 A.L.R. 326.
Right to test qualifications of witness to testify as to genuineness of handwriting by cross-examining him as to the genuineness of other handwriting not the subject of his direct examination, 128 A.L.R. 1329.
Motive in bringing action or choosing the forum or venue as proper matter for cross-examination, 157 A.L.R. 604.
May a witness who testifies to facts be impeached by showing of prior inconsistent expressions of opinion by him, 158 A.L.R. 820.
Cross-examination to dispel favorable inference which jury might draw from appearance of witness on witness-stand, 159 A.L.R. 201.
Cross-examination of expert witness as to fees, compensation, and the like, 33 A.L.R.2d 1170.
Federal Civil Procedure Rule 43(b), and similar state rule, relating to the calling and interrogation of adverse party as witness at trial, 35 A.L.R.2d 756.
Cross-examination of witness in criminal case as to whether, and with whom, he has discussed facts of case, 35 A.L.R.2d 1045.
Cross-examination by leading questions of witness friendly to or biased in favor of cross-examiner, 38 A.L.R.2d 952.
Right of a defendant in personal injury or death action to cross-examine codefendant, 43 A.L.R.2d 1000.
Right of counsel representing party at trial, but employed by his liability insurer, to cross-examine or impeach him for asserted contradictory statements, 48 A.L.R.2d 1239.
Party litigant in civil personal injury or death case as bound by conflicting testimony of his own medical witnesses, 53 A.L.R.2d 1229.
Who is "employee" within statute permitting examination, as adverse witness, of employee of party, 56 A.L.R.2d 1108.
Preventing or limiting cross-examination of prosecution's witness as to his motive for testifying, 62 A.L.R.2d 610.
Cross-examination of plaintiff in personal injury action as to his previous injuries, physical condition, claims, or actions, 69 A.L.R.2d 593.
Propriety of hypothetical question to expert witness on cross-examination, 71 A.L.R.2d 6.
Right to elicit expert testimony from adverse party called as witness, 88 A.L.R.2d 1186.
Propriety of cross-examining witness as to illicit relations with defendant in criminal case, 25 A.L.R.3d 537.
Cross-examination of witness as to his mental state or condition, to impeach competency or credibility, 44 A.L.R.3d 1203.
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.
Right to cross-examine witness as to his place of residence, 85 A.L.R.3d 541.
Privilege of witness to refuse to give answers tending to disgrace or degrade him or his family, 88 A.L.R.3d 304.
Right to cross-examine prosecuting witness as to his pending or contemplated civil action against accused for damages arising out of same transaction, 98 A.L.R.3d 1060.
Admissibility and effect, on issue of party's credibility or merits of his case, of evidence of attempts to intimidate or influence witness in civil action, 4 A.L.R.4th 829.
Cross-examination of character witness for accused with reference to particular acts or crimes - modern state rules, 13 A.L.R.4th 796.
Impeachment or cross-examination of prosecuting witness in sexual offense trial by showing that prosecuting witness threatened to make similar charges against other persons, 71 A.L.R.4th 448.
Impeachment or cross-examination of prosecuting witness in sexual offense trial by showing that similar charges were made against other persons, 71 A.L.R.4th 469.
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.
Propriety, under Uniform Rule of Evidence 607, of impeachment of party's own witness, 3 A.L.R.6th 269.
Construction and application of provision of Rule 611(b) of federal rules of evidence that cross-examination should be limited to subject matter of direct examination, 93 A.L.R. Fed. 2d 243.