(Code 1981, §24-6-613, enacted by Ga. L. 2011, p. 99, § 2/HB 24.)
Cross references.- Witness's prior statement, Fed. R. Evid. 613.
Law reviews.- For article, "The Need For a Special Exception to the Hearsay Rule in Child Sexual Abuse Cases," see 21 Ga. St. B.J. 50 (1984).
JUDICIAL DECISIONSANALYSIS
General Consideration
Editor's notes.
- In light of the similarity of the statutory provisions, decisions under former Code 1868, §§ 3815, 3816, 3819, former Code 1873, §§ 3871, 3872, 3875, former Code 1882, §§ 3871, 3872, 3875, former Civil Code 1895, § 5292, former Penal Code 1895, § 1026, former Civil Code 1910, § 5881, former Penal Code 1910, § 1052, former Code 1933, § 38-1803, and former O.C.G.A. § 24-9-83 are included in the annotations for this Code section.
Witness impeached by disproving facts.
- Witness can be impeached as to matters relevant to the witness's testimony and to the case, and by disproving facts testified to by the witness. Morris v. State Farm Mut. Auto. Ins. Co., 203 Ga. App. 839, 418 S.E.2d 119 (1992) (decided under former O.C.G.A. § 24-9-83).
Former Civil Code 1910, §§ 5881 and 5882 (see now O.C.G.A. §§ 24-4-608 and24-6-613) were not exhaustive as to the manner in which a witness may be impeached. Yaryan Rosin & Turpentine Co. v. Haskins, 29 Ga. App. 753, 116 S.E. 913 (1923) (decided under former Civil Code 1910, §§ 5881 and 5882); McRae v. Boykin, 50 Ga. App. 866, 179 S.E. 535 (1935); 182 Ga. 252, 185 S.E. 246 (1936), rev'd on other grounds,(decided under former Code 1933, § 38-1803).
Pretrial statement does not prohibit trial testimony inconsistent therewith. Tommie v. State, 158 Ga. App. 216, 279 S.E.2d 510 (1981) (decided under former O.C.G.A. § 24-9-83).
Absence of prior statement at preliminary hearing fails to amount to a contradiction. Thomas v. State, 168 Ga. App. 587, 309 S.E.2d 881 (1983) (decided under former O.C.G.A. § 24-9-83).
Effect of inconsistent statement.
- Inconsistency of statement does not render a witness's testimony inadmissible; it merely lays the witness open to impeachment. Carter v. State, 2 Ga. App. 254, 58 S.E. 532 (1907) (decided under former Penal Code 1895, § 1026).
Prior inconsistent statement of witness who takes stand and is subject to cross-examination is admissible as substantive evidence and is not limited to impeachment purposes. Brown v. State, 175 Ga. App. 246, 333 S.E.2d 124 (1985) (decided under former O.C.G.A. § 24-9-83).
With regard to a defendant's conviction for aggravated assault in a case that the defendant and the complainant reconciled and the complainant had recanted the allegations against the defendant by the time of trial, the defendant failed to prove that defense counsel was ineffective as a result of failing to object to attempted impeachment evidence of the complainant wherein the complainant was asked whether the officers the crime was reported to had lied at trial because the state's question was permissible as part of an attempt to impeach the complainant with the complainant's prior inconsistent statement. Jacobs v. State, 299 Ga. App. 368, 683 S.E.2d 64 (2009) (decided under former O.C.G.A. § 24-9-83).
Previous statements not proof of truth.
- Evidence of previous contradictory statements made by a witness sought to be impeached is not affirmative proof of the truth of such previous statements. Luke v. Cannon, 4 Ga. App. 538, 62 S.E. 110 (1908) (decided under former Civil Code 1895, § 5292); Early v. Ramey, 119 Ga. App. 621, 168 S.E.2d 629 (1969); Morgan v. State, 135 Ga. App. 139, 217 S.E.2d 175 (decided under former Code 1933, § 38-1803); 235 Ga. 632, 221 S.E.2d 47; Dent v. State, 136 Ga. App. 366, 221 S.E.2d 228, rev'd on other grounds, Davis v. State, 136 Ga. App. 749, 222 S.E.2d 188 (1975), overruled on other grounds,overruled on other grounds,(decided under former Code 1933, § 38-1803).
Knowing and willful swearing.
- To constitute impeachment, the witness must have knowingly and willfully sworn differently on the present trial from the witness's testimony on the former trial. Stanford v. State, 153 Ga. 219, 112 S.E. 130 (1922) (decided under former Penal Code 1910, § 1052).
Court determines materiality.
- Party may be required to announce the statement the party seeks to contradict, that the court may judge of the statement's materiality. Williams v. Chapman, 7 Ga. 467 (1849) (decided under former law).
When prior inconsistent statement becomes admissible.
- Prior inconsistent statement of a witness becomes admissible when the witness denies having made the statement. Pembrook Mgt., Inc. v. Cossaboon, 157 Ga. App. 675, 278 S.E.2d 100 (1981) (decided under former Code 1933, § 38-1803).
Prior contradictory statement of a witness does not become contradictory or exculpatory until the witness testifies. Gilreath v. State, 247 Ga. 814, 279 S.E.2d 650 (1981), cert. denied, 456 U.S. 984, 102 S. Ct. 2258, 72 L. Ed. 2d 862 (1982) (decided under former O.C.G.A. § 24-9-83).
Upon review of a witness's testimony and prior statement, trial counsel was not ineffective in failing to object to the detective's testimony about the witness's statement as hearsay because the trial court likely would have exercised the court's discretion to admit the evidence as a prior inconsistent statement as the defendant admitted that the witness's statement to the detective was a little bit contradictory to what the witness testified to. Faust v. State, 302 Ga. 211, 805 S.E.2d 826 (2017).
Prior contradictory statement best used during cross examination.
- Statement of a witness which does no more than show that the witness made a prior contradictory statement has its most effective use at trial in cross-examination. Gilreath v. State, 247 Ga. 814, 279 S.E.2d 650 (1981), cert. denied, 456 U.S. 984, 102 S. Ct. 2258, 72 L. Ed. 2d 862 (1982) (decided under former O.C.G.A. § 24-9-83).
Recalling of witness for further examination at the instance of either party is always within the discretion of the trial judge. Money v. State, 137 Ga. App. 779, 224 S.E.2d 783, cert. denied, 429 U.S. 858, 97 S. Ct. 158, 50 L. Ed. 2d 136 (1976) (decided under former Code 1933, § 38-1803).
Defendant's request to recall state's witnesses for further cross-examination for impeachment purposes is properly denied if the court is not informed of what statements are intended to be contradicted. Wehunt v. State, 168 Ga. App. 353, 309 S.E.2d 143 (1983) (decided under former O.C.G.A. § 24-9-83).
Cross-examination.
- When it is sought to impeach a witness by a party in order to disparage the witness's testimony, this is properly done by cross-examination of the witness. McRae v. Boykin, 50 Ga. App. 866, 179 S.E. 535 (1935), rev'd on other grounds, 182 Ga. 252, 185 S.E. 246 (1936) (decided under former Code 1933, § 38-1803).
Alibi witnesses.
- State was obligated to respond to the defendants' notification of the defendants' intention to rely upon alibi as a defense; neither the state's general witness list nor the state's entitlement to rebut or impeach a witness's testimony with conflicting testimony or statements under former O.C.G.A. §§ 24-9-82 and24-9-83 (see now O.C.G.A. §§ 24-6-613 and24-6-621) was a substitute for compliance with O.C.G.A. § 17-16-5(b). Hayes v. State, 249 Ga. App. 857, 549 S.E.2d 813 (2001) (decided under former O.C.G.A. § 24-9-83).
Impeaching memory.
- It is not competent to impeach, by witnesses, the memory of the witness in order to disparage the witness's testimony. It must be done by cross-examination. Goodwyn v. Goodwyn, 20 Ga. 600 (1856) (decided under former law).
Because the defendant could have impeached the witnesses who allegedly contradicted themselves as a result of faded memories without losing any right to open and conclude closing argument before the jury, the defendant could not show that an alleged loss of memory caused by any delay in the proceedings amounted to prejudice. Parker v. State, 283 Ga. App. 714, 642 S.E.2d 111, cert. denied, 552 U.S. 995, 128 S. Ct. 496, 169 L. Ed. 2d 347 (2007) (decided under former O.C.G.A. § 24-9-83).
Impeachment of neighbor.
- Defendant asserted that defense counsel could have impeached the neighbor with the neighbor's prior inconsistent statements to the investigator by calling the investigator as a witness at trial; however, this was not ineffective assistance of counsel as there was no prejudice to the defendant. Espinosa v. State, 352 Ga. App. 698, 834 S.E.2d 558 (2019).
Criminal defendant, when a witness, stands before the court as any other witness. Klug v. State, 77 Ga. 734 (1886) (decided under former Code 1882, §§ 3871, 3872, and 3875); Coleman v. State, 141 Ga. 731, 82 S.E. 228 (1914);(decided under former Penal Code 1910, § 1052).
Prosecutor, when a witness, stands before the court as any other witness. Womack v. State, 72 Ga. 215 (1883) (decided under former Code 1882, §§ 3871, 3872, and 3875).
When allegations that defendant impeached were not supported by evidence, summary judgment was not precluded.
- See Bonney Motor Express, Inc. v. Yates, 171 Ga. App. 754, 320 S.E.2d 844 (1984) (decided under former O.C.G.A. § 24-9-83).
Because admission of a booking photograph did not suggest guilt of a prior crime or enflame the jury, the admission did not place defendant's character into evidence or deprive the defendant of a fair trial. Hunter v. State, 273 Ga. App. 52, 614 S.E.2d 179 (2005) (decided under former O.C.G.A. § 24-9-83).
Inconsistent statements.
- While the trial court erred in holding that a witness's prior inconsistent statement had to be admitted into evidence prior to the statement's use for impeachment, considering that the allegedly inconsistent statement concerned only a fine distinction whether, prior to the defendant's wife's arrival, the defendant and the murder victim argued with each other or the defendant alone yelled at the victim, the trial court's error did not contribute to the verdict and was, therefore, harmless. Holsey v. State, 281 Ga. 177, 637 S.E.2d 32 (2006) (decided under former O.C.G.A. § 24-9-83).
Trial court did not err in allowing a codefendant to play a9-1-1 tape to impeach a witness's testimony with a prior inconsistent statement because the witness and the9-1-1 operator could all be heard on the 9-1-1 tape, they testified at trial, and they were subject to cross-examination; on the 9-1-1 tape, the witness could be heard saying that the defendant told the witness that the defendant shot the victim, but at trial, the witness testified, "I don't believe that I said that she said she shot him," and the codefendant reminded the witness of the statement on the 9-1-1 call, but the witness did not change the witness' testimony. Krause v. State, 286 Ga. 745, 691 S.E.2d 211 (2010) (decided under former O.C.G.A. § 24-9-83).
Given a witness's inconsistent testimony at trial and the witness's convenient memory lapses about the portions of the witness's conversation with the police that implicated the defendant, the witness's earlier statements were not hearsay but rather were properly admitted as prior inconsistent statements as the witness was given an opportunity to explain or deny the witness's prior inconsistent statements to the police, and the defendant had the opportunity to cross-examine the witness about those statements. Thompson v. State, 304 Ga. 146, 816 S.E.2d 646 (2018).
Evidence sufficient to impeach in the following cases.
- See Central of Ga. Ry. v. Pitts, 38 Ga. App. 780, 145 S.E. 518 (1928) (decided under former Civil Code 1910, § 5881); Sands v. State, 46 Ga. App. 730, 169 S.E. 58 (1933); Felts v. State, 244 Ga. 503, 260 S.E.2d 887 (1979) (decided under former Code 1933, § 38-1803); Walker v. Bruno's, Inc., 228 Ga. App. 589, 492 S.E.2d 336 (1997);(decided under former Code 1933, § 38-1803);(decided under former O.C.G.A. § 24-9-83).
Use of term "bad guys."
- Defendant's motion for a mistrial was properly denied as a witness's use of the term "bad guys" in explaining undercover operations did not improperly inject defendant's character into evidence; even assuming the comment was improper, the error was harmless in light of the overwhelming evidence of defendant's guilt. Salgado v. State, 268 Ga. App. 18, 601 S.E.2d 417 (2004) (decided under former O.C.G.A. § 24-9-83).
Attempt to bribe victim to change testimony.
- Trial court erred in permitting the state to elicit testimony that the co-defendant's father attempted to influence the victim by bribing the victim into changing the victim's account of what took place as a means of rehabilitating the victim's credibility because, even assuming that the victim was cross-examined with charges of recent fabrication or improper influence, the victim was not rehabilitated with a prior consistent statement; and the testimony regarding the attempted bribery was not used in any way to explain the prior inconsistent statements to law enforcement about which the victim was cross examined. Belcher v. State, 344 Ga. App. 729, 812 S.E.2d 51 (2018).
Contradictions were shown in the following cases.
- See Cox v. State, 64 Ga. 374, 37 Am. R. 76 (1879) (stenographic notes of testimony at coroner's inquest) (decided under former Code 1873, §§ 3871, 3872, and 3875); Owens v. State, 139 Ga. 92, 76 S.E. 860 (1912) (affidavit made previous to trial) (decided under former Penal Code 1910, § 1052); Frank v. State, 141 Ga. 243, 80 S.E. 1016 (1914) (affidavit of witness plus testimony of another witness) (decided under former Penal Code 1910, § 1052).
Exclusion of testimony harmless.
- Trial court did not abuse the court's discretion in excluding testimony by the defendant's investigator that the defendant asserted was relevant to the issue of provocation because, even assuming that the testimony at issue was relevant in showing provocation, the testimony was properly excluded and the testimony's exclusion was harmless given that the jury heard testimony that the victim had been spreading rumors that the defendant was gay. Slaughter v. State, 292 Ga. 573, 740 S.E.2d 119 (2013)(decided under former O.C.G.A. § 24-9-83).
Cited in Thompson v. State, 320 Ga. App. 150, 739 S.E.2d 434 (2013); Ryans v. State, 293 Ga. 238, 744 S.E.2d 759 (2013); Latta v. State, 341 Ga. App. 696, 802 S.E.2d 264 (2017), cert. denied, 2017 Ga. LEXIS 1021 (Ga. 2017), cert. denied, 138 S. Ct. 1582, 2018 U.S. LEXIS 2291, 200 L. Ed. 2d 768 (U.S. 2018); Gonzalez v. State, 352 Ga. App. 83, 833 S.E.2d 727 (2019); Davis v. State, 307 Ga. 746, 838 S.E.2d 263 (2020).
Admissibility of Statement
1. In General
General rule.
- Prior inconsistent statements are in general admissible to impeach a witness. Andrews v. State, 118 Ga. 1, 43 S.E. 852 (1903) (decided under former Penal Code 1895, § 1026); Bates v. State, 4 Ga. App. 486, 61 S.E. 888 (1908); Tommie v. State, 158 Ga. App. 216, 279 S.E.2d 510 (1981) (decided under former Penal Code 1895, § 1026);(decided under former Code 1933, § 38-1803).
Rule that declarations to third persons against the declarant's penal interest to the effect that the declarant and not the accused was the actual perpetrator of the offense are not admissible in favor of the accused at the trial and does not apply when the declarant is present, testifies, and is subject to cross-examination; the accused should have been permitted to produce testimony of the declarant's prior inconsistent statements as substantive evidence of the facts contained therein. Guess v. State, 262 Ga. 487, 422 S.E.2d 178 (1992) (decided under former O.C.G.A. § 24-9-83).
One method of impeaching a witness is by showing that the witness made statements out of court at variance with the witness's testimony on the witness stand. Ricks v. State, 70 Ga. App. 395, 28 S.E.2d 303 (1943) (decided under former Code 1933, § 38-1803).
Prior statement of fact or opinion.
- Prior inconsistent statement is admissible to impeach a witness whether the statement was one of fact or one of opinion when the statement is different from the facts testified to or from the conclusion which the testimony tends to establish. Bates v. State, 4 Ga. App. 486, 61 S.E. 888 (1908) (decided under former Penal Code 1895, § 1026).
Rape victim's statement to an investigator was not impeaching since the statement was neither contradictory nor inconsistent with her trial testimony, but merely stated facts that corroborated the trial testimony. Hightower v. State, 227 Ga. App. 74, 487 S.E.2d 646 (1997) (decided under former O.C.G.A. § 24-9-83).
Trial court did not abuse the court's discretion in admitting the testimony of the physician, the detective and the victim's friend regarding the victim's prior consistent statements because part of the defendant's trial strategy was to discredit the victim by attacking the victim's memory of the assault due to smoking marijuana; thus, the prior consistent statements to the physician, the detective, and friend were admissible to logically rebut that the victim's memory was clouded. Wilson v. State, 351 Ga. App. 794, 833 S.E.2d 175 (2019).
Contradictory statements were immaterial.
- In a trial for statutory rape and child molestation, the trial court did not err in not allowing the defendant to use contradictory statements about the victim's age to impeach the victim under former O.C.G.A. § 24-9-83 as the victim's age was not contested at trial and the defendant's knowledge of the victim's age was irrelevant; thus, the contradictory statements were immaterial. Haywood v. State, 283 Ga. App. 568, 642 S.E.2d 203 (2007) (decided under former O.C.G.A. § 24-9-83).
Rent dispute was immaterial matter.
- Trial court did not err when the court excluded extrinsic evidence to impeach a witness's testimony about a rent dispute that the witness and the victim had with a prior landlord because the prior dispute was not germane or material to whether the defendant was justified in shooting the victim. Corley v. State, 308 Ga. 321, 840 S.E.2d 391 (2020).
Relevant matters.
- Contradictory statements must relate to matters relevant to the testimony of the witness and to the case. Green v. State, 43 Ga. 368 (1871) (decided under former Code 1868, §§ 3815, 3816, and 3819); Whitaker v. State, 79 Ga. 87, 3 S.E. 403 (1887); Futch v. State, 90 Ga. 472, 16 S.E. 102 (1892), overruled on other grounds, Worthen v. State, 2019 Ga. LEXIS 22 (Ga. 2019) (decided under former Code 1882, §§ 3871, 3872, and 3875); Watts v. State, 120 Ga. 496, 48 S.E. 142 (1904); Mann v. State, 124 Ga. 760, 53 S.E. 324, 4 L.R.A. (n.s.) 934 (1906) (decided under former Code 1882, §§ 3871, 3872, and 3875); Tanner v. State, 163 Ga. 121, 135 S.E. 917 (1926); Cooper v. State, 66 Ga. App. 594, 18 S.E.2d 644 (1942) (decided under former Code 1882, §§ 3871, 3872, and 3875); Green v. State, 138 Ga. App. 48, 225 S.E.2d 495 (1976); Wakily v. State, 225 Ga. App. 56, 483 S.E.2d 313 (1997) (decided under former Penal Code 1895, § 1026);(decided under former Penal Code 1910, § 1052);(decided under former Code 1933, § 38-1803);(decided under former Code 1933, § 38-1803);(decided under former O.C.G.A. § 24-9-83).
Since the declarant's testimony was relevant to the case and contradictory statements attributed to the declarant were relevant to the declarant's testimony, testimony proffered by the accused should have been admitted under "the prior inconsistent statement exception to the hearsay rule." Guess v. State, 262 Ga. 487, 422 S.E.2d 178 (1992) (decided under former O.C.G.A. § 24-9-83).
"Material matters" were matters competent to prove on one side or other of the issue, and admissible for that purpose. Kennedy v. State, 9 Ga. App. 219, 70 S.E. 986 (1911) (decided under former Penal Code 1910, § 1052); Stockton v. State, 20 Ga. App. 186, 92 S.E. 1019 (1917);(decided under former Penal Code 1910, § 1052).
Pre-trial statements.
- For a party's credibility to be impeached by prior inconsistent statements, such statement must be relevant and material to the issues on trial; a factual stipulation presented by the parties to the trial court did not conflict with the pre-trial statement, and did not cause a prior inconsistent statement for purposes of impeachment. Redfearn v. Huntcliff Homes Assoc., 260 Ga. App. 150, 579 S.E.2d 37 (2003) (decided under former O.C.G.A. § 24-9-83).
Because the prosecuting attorney laid a proper foundation for a witness's prior inconsistent statement by questioning the witness about the circumstances of the witness's earlier statement to investigators and affording the witness an opportunity to admit, explain, or deny the prior contradictory statement about not seeing a gun during the rough play between the defendant and others prior to the murders, the trial court did not abuse the court's discretion when the court admitted the witness's earlier statement. Edwards v. State, 293 Ga. 612, 748 S.E.2d 870 (2013).
Purpose of testimony limited.
- Testimony offered avowedly to impeach the credit of a witness by showing contradictory statements cannot, in the argument before the jury, be used for a wholly different purpose. Williams v. Chapman, 7 Ga. 467 (1849) (decided under former law).
Witness could not be impeached by a memorandum that was not written by the witness and that did not record any statement made by the witness. Mobley v. State, 265 Ga. 292, 455 S.E.2d 61 (1995) (decided under former O.C.G.A. § 24-9-83).
Witness could not be cross-examined regarding a document the witness did not prepare and did not know about since the purpose of the cross-examination was to impeach the witness, not refresh the witness's recollection. Fleming v. State, 269 Ga. 245, 497 S.E.2d 211 (1998) (decided under former O.C.G.A. § 24-9-83).
Email could not be used for impeachment.
- In a child molestation prosecution, an email that the defendant claimed the victim sent, in which the writer apologized for lying about the defendant, was not admissible to impeach the victim, as no testimony elicited from the victim would have been contradicted by the email. Had the victim been asked about telling anyone that the victim had lied about the defendant, and denied doing so, the email might have been admitted for impeachment. Hollie v. State, 298 Ga. App. 1, 679 S.E.2d 47 (2009), aff'd, 287 Ga. 389, 696 S.E.2d 642 (2010) (decided under former O.C.G.A. § 24-9-83).
Inadmissible testimony.
- When the testimony of the former trial is inadmissible in evidence, that testimony may not be resorted to for purposes of impeachment. Mitchum v. State, 11 Ga. 615 (1852) (decided under former law).
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 and24-6-613), 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. § 24-9-83).
Proving testimony by notes or memoranda.
- For the purpose of impeaching witnesses, their testimony of the committing trial may be proved as well by one who heard it as by the notes or memoranda of the evidence taken by the court. Chambers v. State, 88 Ga. App. 57, 76 S.E.2d 84 (1953) (decided under former Code 1933, § 38-1803).
Document introduced in absence of witness.
- If the foundation for impeaching documentary evidence was properly laid, it is immaterial that the witness had concluded the witness's testimony and was absent from the courthouse at the time the document was finally introduced in evidence. Hartley v. Sanders, 45 Ga. App. 273, 164 S.E. 232 (1932) (decided under former Civil Code 1910, § 5881).
Admission by witness of previous statement.
- Once a witness has unequivocally admitted having previously made inconsistent statements in a written report, the written report becomes inadmissible as proof of the inconsistency is no longer necessary or material. Choate v. Carter, 98 Ga. App. 375, 105 S.E.2d 909 (1958) (decided under former Code 1933, § 38-1803); Pethel v. Waters, 220 Ga. 543, 140 S.E.2d 252 (1965); Dickey v. State, 240 Ga. 634, 242 S.E.2d 55 (1978) (decided under former Code 1933, § 38-1803); Gibbons v. State, 248 Ga. 858, 286 S.E.2d 717 (1982);overruled on other grounds,(decided under former Code 1933, § 38-1803).
When a witness admits making prior inconsistent statements, the witness has impeached oneself and it is not error to exclude the statements themselves from evidence. Daniels v. State, 203 Ga. App. 873, 418 S.E.2d 137 (1992) (decided under former O.C.G.A. § 24-9-83).
Whether the witness admits or denies making the prior inconsistent statement in writing, the written statement may be admissible and considered as substantive evidence. Language in cases that prior inconsistent statements are not admissible solely because the witness admits he or she made the statements is disapproved. Duckworth v. State, 268 Ga. 566, 492 S.E.2d 201 (1997) (decided under former O.C.G.A. § 24-9-83).
Trial court did not err in allowing the prosecutor to play the entire tape of an out-of-court police interview of a witness for the state because the fact that the witness admitted that the witness made the inconsistent pre-trial statement did not render the statement inadmissible. Johnson v. State, 289 Ga. 106, 709 S.E.2d 768 (2011) (decided under former O.C.G.A. § 24-9-83).
Denial of prior statement.
- Witness's prior statement which is inconsistent on a material matter with the witness's trial testimony is properly admitted into evidence to impeach the witness's trial testimony when the witness denies having made such a statement. Dickey v. State, 240 Ga. 634, 242 S.E.2d 55 (1978), overruled on other grounds, Gibbons v. State, 248 Ga. 858, 286 S.E.2d 717 (1982) (decided under former Code 1933, § 38-1803).
Even if a witness's out-of-court statement to a detective was hearsay under former O.C.G.A. § 24-3-1(a), it was admissible as a prior inconsistent statement under former O.C.G.A. § 24-9-83 because the witness testified the witness did not remember meeting with the detective and the witness did not tell the detective that the witness's previous statement was incomplete. Welch v. State, 298 Ga. 320, 781 S.E.2d 768 (2016).
Inconsistent statement admissible only after witness's denial.
- Prior inconsistent statement becomes admissible only if the witness denies having made the statement. Harden v. State, 166 Ga. App. 536, 304 S.E.2d 748 (1983) (decided under former O.C.G.A. § 24-9-83).
Fact that former O.C.G.A. § 24-9-83 did not mandate that a prior inconsistent statement be admitted into evidence before the statement was used for impeachment did not render erroneous a trial court's admission of such a statement after cross-examination. Williams v. State, 236 Ga. App. 351, 511 S.E.2d 910 (1999) (decided under former O.C.G.A. § 24-9-83).
Witness failing to deny former statement.
- Trial court erred in refusing to allow the appellant to impeach a witness's testimony simply because the witness failed to deny making the witness's former statements. Sprouse v. State, 250 Ga. 174, 296 S.E.2d 584 (1982) (decided under former O.C.G.A. § 24-9-83).
Admissible as substantive evidence.
- 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. Gibbons v. State, 248 Ga. 858, 286 S.E.2d 717 (1982) (decided under former O.C.G.A. § 24-9-83); Sprouse v. State, 250 Ga. 174, 296 S.E.2d 584 (1982); Belcher v. State, 188 Ga. App. 244, 372 S.E.2d 650 (1988) (decided under former O.C.G.A. § 24-9-83);(decided under former O.C.G.A. § 24-9-83).
Witness's prior statement which is inconsistent on a material matter with the witness's trial testimony is proper evidence to impeach the witness's trial testimony. Such an inconsistent statement of a witness is not limited in value only to impeachment purposes but is likewise admissible as substantive evidence. Truitt v. State, 168 Ga. App. 616, 309 S.E.2d 895 (1983) (decided under former O.C.G.A. § 24-9-83).
Prior inconsistent statement of a witness who takes the stand and is subject to cross-examination is admissible as substantive evidence. Lumpkin v. State, 255 Ga. 363, 338 S.E.2d 431 (1986), overruled on other grounds, Woodard v. State, 269 Ga. 317, 496 S.E.2d 896, (1998) (decided under former O.C.G.A. § 24-9-83).
It was proper to allow the state to introduce prior inconsistent statements as substantive evidence with regard to three witnesses who claimed to have suffered memory loss as well as three other witnesses who equivocated regarding their statements. Spann v. State, 248 Ga. App. 419, 546 S.E.2d 368 (2001) (decided under former O.C.G.A. § 24-9-83).
Trial court did not abuse the court's discretion by admitting statements that the victim allegedly made to the victim's niece, who discovered the victim on the morning after the beating, as exceptions to the rule against hearsay as present sense impressions, excited utterances, and to impeach the niece's trial testimony as, under the totality of the circumstances, the victim was still suffering under the stress of the all-night beating such that the victim's statements were admissible. Robbins v. State, 300 Ga. 387, 793 S.E.2d 62 (2016).
Evidence which is admissible for impeachment purposes only cannot serve as evidence in support of an essential factual contention. Gibbons v. State, 248 Ga. 858, 286 S.E.2d 717 (1982) (decided under former O.C.G.A. § 24-9-83).
Prior incriminatory statement is admissible for impeachment purposes even if Miranda warnings have not been given. Graham v. State, 175 Ga. App. 411, 333 S.E.2d 664 (1985) (decided under former O.C.G.A. § 24-9-83).
Valuation made two years prior to condemnation not admissible.
- In a condemnation proceeding, statements concerning the value of the subject property on a date approximately two years prior to the taking may be excluded as impeaching evidence since the value of the property two years prior is not shown to be relevant to the issue of the value of the property at the time of the property's subsequent taking. DOT v. Wright, 169 Ga. App. 332, 312 S.E.2d 824 (1983) (decided under former O.C.G.A. § 24-9-83).
Falsity partially conceded.
- Written document previously made and signed by a witness, which is contrary to the witness's testimony, may be introduced in evidence for the purpose of impeachment on the ground of contradictory statements; and this may be done even though the witness admits signing the document, and testifies that most of the statements contained therein are false since the document contains other statements whose falsity is not admitted. Manley v. Combs, 197 Ga. 768, 30 S.E.2d 485 (1944) (decided under former Code 1933, § 38-1803); Hodges v. Haverty, 115 Ga. App. 199, 154 S.E.2d 276 (1967);(decided under former Code 1933, § 38-1803).
Statement not admissible as prior inconsistent statement.
- See Garrett v. State, 169 Ga. App. 327, 312 S.E.2d 621 (1983) (decided under former O.C.G.A. § 24-9-83).
Refusal to admit prior statement harmless error.
- Even if the trial court erred in refusing to permit the defendant to read aloud part of the defendant's prior statement, since the defendant's entire custodial statement was admitted into evidence and the jury was free to determine what meaning, weight, and credibility to accord that statement, any error was harmless. O'Hara v. State, 241 Ga. App. 855, 528 S.E.2d 296 (2000) (decided under former O.C.G.A. § 24-9-83).
2. What Statements Admissible
Writing admissible.
- Any writing previously made by a witness, which is in conflict with the witness's testimony, is admissible for the purpose of impeachment. State Hwy. Dep't v. Raines, 129 Ga. App. 123, 199 S.E.2d 96 (1973) (decided under former Code 1933, § 38-1803); Redd v. State, 242 Ga. 876, 252 S.E.2d 383; 442 U.S. 934, 99 S. Ct. 2870, 61 L. Ed. 2d 304 (1979), cert. denied,(decided under former Code 1933, § 38-1803).
Depositions.
- Words "written statements made under oath in connection with some judicial proceedings" include previously taken depositions of a witness in a case. Williams v. Chapman, 7 Ga. 467 (1849) (decided under former law); Georgia R.R. & Banking Co. v. Smith, 85 Ga. 530, 11 S.E. 859 (1890); Raleigh & G.R.R. v. Bradshaw, 113 Ga. 862, 39 S.E. 555 (1901) (decided under former Code 1882, §§ 3871, 3872, and 3875); Estill v. Citizens & S. Bank, 153 Ga. 618, 113 S.E. 522 (1922); Phillips v. Howard, 109 Ga. App. 404, 136 S.E.2d 473 (1964) (decided under former Civil Code 1895, § 5292);(decided under former Civil Code 1895, § 5292);(decided under former Code 1933, § 38-1803).
Deposition concerning same issues.
- Witness may be contradicted and thus discredited by the witness's depositions previously taken in the same case or in a different case involving the same issues. Lexington Developers, Inc. v. O'Neal Constr. Co., 145 Ga. App. 309, 243 S.E.2d 577 (1978) (decided under former Code 1933, § 38-1803).
Testimony concerning lost deposition.
- When depositions were never properly transmitted to the court and were lost, the court properly allowed oral testimony as to what the interrogated persons said before the court commissioner, not for the purpose of establishing their previous testimony given in the case, but merely for the purpose of proving alleged previous contradictory statements, and properly permitted counsel for the defendants to refer to what purported to be a carbon copy of the previous questions and answers, in questioning the witnesses in order to lay a foundation for their impeachment and in testifying personally as to what answers were previously given, counsel at last testifying from counsel's own recollection after having counsel's memory thus refreshed. Lazar v. Black & White Cab Co., 50 Ga. App. 567, 179 S.E. 250 (1935) (decided under former Code 1933, § 38-1803).
Testimony at former trial.
- When properly authenticated and proper preliminary proof for its introduction has been made, testimony given in a previous trial of the case is admissible for the purpose of impeaching a witness. Butler v. State, 142 Ga. 286, 82 S.E. 654 (1914) (decided under former Penal Code 1910, § 1052).
Prior statement of witness who later suffered head injury.
- In a cruelty to children action, the trial court did not err in allowing the investigating detective to testify to the contents of out-of-court statements made to the detective by the putative father because the putative father had suffered a combat-related head injury that caused the putative father to have trouble recalling certain details during the putative father's testimony, including what occurred on the day the putative father discovered the child's injury. Hines v. State, 353 Ga. App. 710, 839 S.E.2d 208 (2020).
Statement made in different case.
- Rule stated is not restricted to contradictory statements made in the same case and is applicable to contradictory statements made in different cases. Jones v. State, 70 Ga. App. 431, 28 S.E.2d 373 (1943) (decided under former Code 1933, § 38-1803).
Prior testimony from committing trial may be used. Brown v. State, 76 Ga. 623 (1886) (decided under former Code 1882, §§ 3871, 2872, and 3875).
Testimony from Jackson v. Denno hearing.
- Defendant's testimony given during a Jackson v. Denno hearing was admissible at trial for the jury's consideration both as incriminatory testimony and as prior contradictory, inconsistent statements. Brown v. State, 226 Ga. App. 140, 486 S.E.2d 370 (1997) (decided under former O.C.G.A. § 24-9-83).
Prior statements implicating accused.
- Trial court did not err in allowing the prosecution to cross-examine two state witnesses after their testimony differed from their prior statements implicating the appellant in a murder and after the witnesses had repudiated the prior statements as having been made under duress. Burney v. State, 252 Ga. 25, 310 S.E.2d 899 (1984) (decided under former O.C.G.A. § 24-9-83).
Hospital intake record was admissible to impeach a defense witness by proof of a prior inconsistent statement regarding the identity of the driver in a DUI prosecution. Gee v. State, 210 Ga. App. 60, 435 S.E.2d 275 (1993) (decided under former O.C.G.A. § 24-9-83).
Prior inconsistent statement.
- In a prosecution for child molestation and related offenses, the prior inconsistent statement of a witness that the witness thought defendant "done it" was admissible to impeach the witness's direct testimony that the witness didn't believe the victim when the victim first reported the sexual assaults. Shropshire v. State, 226 Ga. App. 669, 487 S.E.2d 384 (1997) (decided under former O.C.G.A. § 24-9-83).
Trial court erred when the court prohibited the defendant from questioning a witness regarding a prior inconsistent statement contained in a document not admitted into evidence. Whitehead v. State, 232 Ga. App. 140, 499 S.E.2d 922 (1998) (decided under former O.C.G.A. § 24-9-83).
State was entitled to impeach the testimony of defendant's cousin denying that the defendant participated in a theft as it was entitled to do so using a contradictory statement previously made by the cousin as to matters relevant to the cousin's testimony and to the case. Wilson v. State, 258 Ga. App. 166, 573 S.E.2d 432 (2002) (decided under former O.C.G.A. § 24-9-83).
Trial court did not err in admitting extrinsic evidence of the cousin's prior inconsistent statements because the state complied with the prerequisites of O.C.G.A. § 24-6-613(b) as both the prosecutor and defense counsel examined the witness as to each of the prior inconsistent statements and the witness was afforded an opportunity to explain or to deny the prior inconsistent statements, which entitled the prosecutor to ask leading questions. McNair v. State, 330 Ga. App. 478, 767 S.E.2d 290 (2014).
Trial court properly allowed - over the defendant's hearsay objection - an investigating officer to testify about the content of the statement of the defendant's sister because, at trial, the sister testified that, although the sister remembered placing the 911 call and giving a statement to investigators, the sister could not recall the details of the shooting itself or the content of the sister's statement; and, even if there were some error in the admission of that testimony, it was - as the defendant conceded - cumulative of other evidence (including a recording of the 911 call), and any such error was harmless. Murdock v. State, 299 Ga. 177, 787 S.E.2d 184 (2016).
Witness's written statement and the video interview were admissible as prior inconsistent statements after the state laid the foundation for those prior statements by giving the witness an opportunity to explain or deny the statements, which the witness contended the witness could not recall. London v. State, 308 Ga. 63, 838 S.E.2d 768 (2020).
Trial court did not err when the court admitted the second victim's out-of-court statements because the second victim testified at trial that the second victim did not see the driver of the stolen vehicle and that the shooter did not say anything to the second victim or the first victim, which was inconsistent with the second victim's out-of-court statements that the shooter was the same person whose vehicle was stolen and that the shooter mentioned the stolen vehicle before killing the first victim. Bridgewater v. State, Ga. , S.E.2d (Sept. 28, 2020).
Allegation of inconsistent statements by witness.
- Trial court did not err in admitting a witness's prior consistent statements because the defendant attacked the witness's veracity by suggesting there were inconsistencies between the witness's trial testimony and the witness's written statement, and that the witness fabricated the witness's testimony after giving the written statement; furthermore, because the thrust of the defendant's cross-examination was a charge that the witness fabricated a different version of events after giving the witness's written statement, the trial court did not err in admitting the witness's videotaped interview with the police. Dorsey v. State, 303 Ga. 597, 814 S.E.2d 378 (2018).
Prior consistent statement of co-defendant.
- Defendant's trial counsel was not ineffective as counsel did not perform deficiently by failing to object on the grounds of hearsay and improper bolstering when two witnesses testified that the co-defendant told them within days of the shooting that the defendant shot the victim because the co-defendant's statements to the co-defendant's sister and to the mother of the co-defendant's two children were prior consistent statements, not hearsay, and were admissible to rehabilitate, rather than improperly bolster, the co-defendant's credibility. Brown v. State, 302 Ga. 454, 807 S.E.2d 369 (2017).
Admission of letter as prior inconsistent statement.
- Trial counsel was not ineffective for failing to object to a letter signed by the victim and the victim's mother admitted into evidence stating they were hurt by someone they love, but chose to forgive and not feel resentment because the letter was admissible as a prior inconsistent statement, thus, counsel was not ineffective for failing to object to the letter's admission. Bradley v. State, 342 Ga. App. 486, 804 S.E.2d 144 (2017).
Hearsay testimony of detective admissible.
- Hearsay testimony of a detective regarding statements made by a coconspirator after the coconspirator denied remembering the crime or giving the police any information was admissible as substance evidence under the prior inconsistent statement exception to the hearsay rule. Robinson v. State, 278 Ga. 31, 597 S.E.2d 386 (2004) (decided under former O.C.G.A. § 24-9-83).
Prior inconsistent statement of detective admissible.
- Both the defendant's trial and appellate counsel rendered ineffective assistance in failing to call a detective to testify that, contrary to the testimony another detective gave at trial, the testifying detective stated that the defendant had mentioned the defendant's alibi in the defendant's first post-arrest interview; a habeas court erred in denying the defendant's petition. Cartwright v. Caldwell, 305 Ga. 371, 825 S.E.2d 168 (2019).
Proper admission of prior inconsistent statement.
- When a witness at the defendant's trial contradicted statements the witness had made to others about the defendant's involvement in a murder, the trial court properly admitted testimony about the earlier statements as prior inconsistent statements. Paige v. State, 281 Ga. 504, 639 S.E.2d 478 (2007) (decided under former O.C.G.A. § 24-9-83).
Witness's testimony that the brother of a juvenile defendant told the witness, "My brother just shot someone," was not inadmissible hearsay; the brother testified that the brother had not made such a statement, the testimony was admissible as an inconsistent statement, and it was also admissible as an excited utterance, as it was made by the brother after receiving a startling text message. In the Interest of B.S., 284 Ga. App. 680, 644 S.E.2d 527 (2007) (decided under former O.C.G.A. § 24-9-83).
Prior inconsistent statement to police admitted.
- Trial court properly admitted a witness's pretrial statements to police in which the witness stated that the witness had observed another person have sex with the defendant in exchange for drugs, and that the defendant had been cutting and packaging the drugs into small bags. At trial, the witness denied the facts set forth in these statements and further denied making these statements to the police; thus, the prior inconsistent statements were properly admitted over the defendant's hearsay objection as impeachment evidence and as substantive evidence of the defendant's guilt. Gassett v. State, 289 Ga. App. 792, 658 S.E.2d 366 (2008) (decided under former O.C.G.A. § 24-9-83).
Defendant did not establish plain error because the recording of the witness's police interview was admitted to impeach the witness, not to bolster the detective; the defendant did not identify any admitted prior statements that were outside the scope of the witness's direct examination; the witness had some recollection of the relevant events; and, in light of the compelling evidence presented at trial, the defendant did not establish that the errors probably affected the outcome of the defendant's trial. Thompson v. State, 304 Ga. 146, 816 S.E.2d 646 (2018).
Prior inconsistent statement of victim admitted.
- Whether or not the trial court erred by refusing to allow the admission of an assault victim's prior inconsistent statement, any error was harmless as defense counsel thoroughly cross-examined the victim about inconsistencies between the victim's written statement and trial testimony, and elicited testimony from a responding officer concerning a statement that the victim made to the officer shortly after the incident occurred, which likewise was inconsistent with the victim's trial testimony. Cash v. State, 293 Ga. App. 702, 667 S.E.2d 691 (2008) (decided under former O.C.G.A. § 24-9-83).
Use of employment application as prior inconsistent statement.
- In a negligence action against a dump truck driver and the driver's employer, given the driver's trial testimony regarding the driver's driving experience, the trial court did not abuse the court's discretion in admitting testimony regarding statements in the driver's purported employment application regarding the driver's truck driving experience as prior inconsistent statements. A & G Trucking, Inc. v. Pitts, 306 Ga. App. 718, 703 S.E.2d 134 (2010) (decided under former O.C.G.A. § 24-9-83).
Reason victim left job irrelevant, collateral matter.
- Trial court did not abuse the court's discretion in refusing to allow the defendant to introduce a prior statement to attempt to impeach the victim on a collateral matter because the reason why the victim left the victim's job was not relevant to the issues in the defendant's trial for robbery by force. Daniels v. State, 349 Ga. App. 681, 824 S.E.2d 754 (2019), cert. denied, 2019 Ga. LEXIS 909 (Ga. 2019).
Inconsistent statement of defendant admitted.
- Defendant was not entitled to a directed verdict of acquittal on a voluntary manslaughter count predicated on the defendant's claim of defense of habitation, O.C.G.A. § 16-3-23, because the evidence was sufficient to authorize a rational trier of fact to find the defendant guilty beyond a reasonable doubt of voluntary manslaughter in violation of O.C.G.A. § 16-5-2(a) and to find that the defendant's stabbing of the victim was not justified in defense of the defendant's habitation; the jury was authorized to rely upon the defendant's prior inconsistent statement to the defendant's relative to conclude that the victim's entry into the defendant's apartment was not "violent and tumultuous." Muckle v. State, 307 Ga. App. 634, 705 S.E.2d 721 (2011) (decided under former O.C.G.A. § 24-9-83).
Prior consistent statement of victim.
- Victim's statement to a doctor was properly admitted as a prior consistent statement as the victim testified at trial and was cross-examined by the defendant; the defendant asserted in opening statement that the defendant implied during cross-examination that because the victim's parent would have been upset if the parent believed the victim were having consensual sex with the parent's old significant other, the victim falsely testified that the defendant forced the victim to engage in sex, which testimony was designed to preserve the victim's relationship with the parent, and to continue the victim's receipt of food and shelter from the parent. Smith v. State, 282 Ga. App. 339, 638 S.E.2d 791 (2006) (decided under former O.C.G.A. § 24-9-83).
Because the defendant attacked the victim's credibility by suggesting that the victim had misidentified the defendant's weapon during a 911 call and that the victim's account of the events was not believable due to the victim's heightened emotional state, the victim's prior statement to an officer that the assailant had wielded a knife logically rebutted the defendant's suggestion that the victim had misidentified the weapon, and the victim's prior statement that the victim did not scream and flee until the defendant pulled the knife logically rebutted the defendant's claim that the victim was so upset when the defendant initially approached the victim that the victim misconstrued the defendant's intentions. Walters v. State, 335 Ga. App. 12, 780 S.E.2d 720 (2015).
Although the defendant objected to the testimony of two of the four outcry witnesses, because the defendant's trial counsel challenged the veracity of the victim's trial testimony and questioned the victim about a meeting between the victim and the district attorney that had taken place shortly before trial, implying that the meeting might have shaped the victim's testimony, the trial court did not err in holding that that line of questioning raised the issue of recent fabrication, thereby permitting the admission of evidence of the victim's earlier statements that were consistent with the victim's testimony at trial. Jones v. State, 340 Ga. App. 568, 798 S.E.2d 87 (2017).
In the defendant's trial for rape of a mentally disabled relative under O.C.G.A. § 16-6-1(a)(1), given the defendant's cross-examinations suggesting that relatives and state officials had influenced the victim's trial testimony after an interview of the victim occurred, the trial court appropriately admitted the prior consistent statement to rebut the implied charge of recent undue influence under O.C.G.A. § 24-6-613(c). Ray v. State, 345 Ga. App. 522, 812 S.E.2d 97 (2018), overruled on other grounds by State v. Burns, 306 Ga. 117, 829 S.E.2d 367 (2019).
Witness's recorded statement to a detective was admissible as a prior consistent statement because the witness, who was an inmate in the jail, was present at trial and was cross-examined, during which defense counsel endeavored to show that the witness had a motive to fabricate - as the witness was facing serious criminal charges - that arose subsequent to the time the witness made a statement to the detective. Franklin v. State, 298 Ga. 636, 784 S.E.2d 359 (2016).
Prior consistent statement of accomplice admissible.
- Because an accomplice testified at the defendant's trial and the accomplice's testimony was consistent with a witness's testimony that the accomplice told the witness the defendant shot the victim, the admission of the testimony of a prior consistent statement was not error. Mosley v. State, 298 Ga. 849, 785 S.E.2d 297 (2016).
Testimony of police officers as to prior statements of a witness is admissible as substantive evidence of guilt of the accused in the nature of an admission. Gibbons v. State, 248 Ga. 858, 286 S.E.2d 717 (1982) (decided under former O.C.G.A. § 24-9-83).
Confession of codefendant.
- In a prosecution for assault with intent to rape, when, on cross-examination, it was brought out that the codefendant had made a signed confession, and the state then placed the codefendant on the stand and, after the codefendant had denied the codefendant's and defendant's guilt, confronted the codefendant with a sworn confession for purposes of impeachment, such confession was admissible in view of conflicting evidence as to whether or not the statement was voluntarily made and was made without fear of injury or hope of reward. Elliott v. State, 87 Ga. App. 456, 74 S.E.2d 366 (1953) (decided under former Code 1933, § 38-1803).
Confession of coconspirator.
- Admission into evidence of the alleged confession of a coconspirator was not error since the coconspirator had been called by the defense and the district attorney stated that the testimony would be for the sole purpose of impeachment. Hodge v. State, 149 Ga. App. 326, 254 S.E.2d 478 (1979) (decided under former Code 1933, § 38-1803).
Hearsay statements inadmissible.
- Statements made by the defendant in the course of an earlier recorded meeting with the witness were hearsay and could not be used to impeach the witness. Willett v. State, 223 Ga. App. 866, 479 S.E.2d 132 (1996) (decided under former O.C.G.A. § 24-9-83).
Hearsay admissible for impeachment.
- Testimony which consisted of declarations by one who was not a party to the case is ordinarily classed as hearsay but is admissible for the sole purpose of impeachment. Wiggins v. Lord, 87 Ga. App. 486, 74 S.E.2d 389 (1953) (decided under former Code 1933, § 38-1803); Simmons v. State, 139 Ga. App. 180, 228 S.E.2d 185 (1976);(decided under former Code 1933, § 38-1803).
Inconsistent statement of victim not admissible.
- Victim advocate's testimony that a domestic abuse victim had told the advocate that the defendant was drunk when the defendant hit the victim was hearsay and not admissible as a prior inconsistent statement of the victim because the victim did not testify as to whether or not the defendant was drunk. However, counsel's failure to object was not ineffective assistance because there was no showing of a reasonable probability that the result would have been different if the jury thought the defendant was drunk or not at the time of the incident. Miller v. State, 300 Ga. App. 652, 686 S.E.2d 302 (2009) (decided under former O.C.G.A. § 24-9-83).
Defendant's prior temporary protective order (TPO) petitions and statements about the prior abuse by the victim, the defendant's husband, was inadmissible as the statements would not have logically rebutted any suggestion by a detective that the defendant's description of the victim's actions just before the shooting did not match the physical evidence; and, assuming that the detective's testimony implied that the defendant fabricated the claim that the victim had abused the defendant on prior occasions, any error in not admitting the documents was harmless as the TPOs and the photographs were admitted into evidence, and the state conceded during the state's opening statement and closing argument that the victim had abused the defendant previously. Smith v. State, Ga. , 845 S.E.2d 598 (2020).
Prior consistent statement on domestic violence inadmissible.
- Even if the statements of the defendant's family members regarding the victim's abuse of the defendant could have served to rebut a detective's testimony that the defendant's pretrial account of the victim's behavior prior to the shooting was not consistent with the physical evidence and that the detective was unable to gain access to photos showing that the victim, the defendant's husband, had abused the defendant on a prior occasion, those statements were not admissible as prior consistent statements because the family members did not testify at trial; thus, the trial court did not plainly err in not admitting those statements. Smith v. State, Ga. , 845 S.E.2d 598 (2020).
Silence as previous statement.
- It is error to permit cross-examination of a defendant for impeachment purposes regarding the defendant's silence or failure to offer an exculpatory statement at the time of the defendant's arrest, including a defendant who was not apprised of the defendant's Miranda rights. Harrison v. State, 154 Ga. App. 343, 268 S.E.2d 396 (1980) (decided under former Code 1933, § 38-1803).
Effect of counteraffidavit, see Gardner v. Granniss, 57 Ga. 539 (1876) (decided under former Code 1873, §§ 3871, 3872, and 3875); Brantley v. State, 16 Ga. App. 6, 84 S.E. 131 (1915);(decided under former Penal Code 1910, § 1052).
Officer's statement on intoxications.
- In a defendant's second trial for driving under the influence, it was not error to prevent the defendant from cross-examining a deputy under former O.C.G.A. § 24-9-83 about a statement the deputy made at the first trial about the defendant's level of intoxication; at the second trial, the state did not ask the deputy about the defendant's level of intoxication or about field sobriety tests and, thus, there was no contradiction between the deputy's testimony at the second trial and the deputy's testimony at the first trial. Davidson v. State, 284 Ga. App. 333, 643 S.E.2d 848 (2007) (decided under former O.C.G.A. § 24-9-83).
Investigator's testimony did not bolster.
- Trial court did not err in admitting testimony by the investigator because even though the state relied heavily on the co-defendant's testimony, the investigator's testimony did not give critical weight to that testimony and there was other evidence linking the defendant to the two burglaries. Silvey v. State, 335 Ga. App. 383, 780 S.E.2d 708 (2015).
Admission of videotape statement.
- There was no requirement under former O.C.G.A. § 24-9-83 that the witness deny making any statement at all, and a trial court properly allowed the state to introduce a videotape of a pretrial statement given by the state's own witness who admitted during the witness's testimony that the witness made the statement, but testified that the witness lied to the police when doing so; the prior inconsistent statement was admissible as substantive evidence, and no instruction that the statement was admitted solely for purposes of impeachment, but not as substantive evidence, would have been appropriate. Cummings v. State, 280 Ga. 831, 632 S.E.2d 152 (2006) (decided under former O.C.G.A. § 24-9-83).
Foundation
Purpose of foundation.
- Foundation that statute requires be laid before contradictory statements may be proved to impeach a witness is for the purpose of giving the witness the opportunity to correct and explain the witness's evidence. Estill v. Citizens & S. Bank, 153 Ga. 618, 113 S.E. 552 (1922) (decided under former Civil Code 1910, § 5881); State Farm Mut. Auto. Ins. Co. v. Rogers, 105 Ga. App. 778, 125 S.E.2d 893 (1962);(decided under former Code 1933, § 38-1803).
Laying foundation required.
- Witness cannot be impeached by proof of contradictory statements without laying a foundation with the particularity prescribed by statute. Williams v. Turner, 7 Ga. 348 (1849) (decided under former law); Floyd v. Wallace, 31 Ga. 688 (1861); Taylor v. State, 110 Ga. 150, 35 S.E. 61 (1900) (decided under former law); Raleigh & G.R.R. v. Bradshaw, 113 Ga. 862, 39 S.E. 555 (1901); Georgia, Fla. & Ala. Ry. v. Sasser, 4 Ga. App. 276, 61 S.E. 505 (1908) (decided under former Penal Code 1895, § 1026); Luke v. Cannon, 4 Ga. App. 538, 62 S.E. 110 (1908); Glover v. State, 137 Ga. 82, 92 S.E. 926 (1911) (decided under former Civil Code 1895, § 5292); White v. Knapp, 31 Ga. App. 344, 120 S.E. 796 (1923); Stewart v. Avery, 38 Ga. App. 431, 144 S.E. 218 (1928) (decided under former Civil Code 1895, § 5292); Johnson v. Roberson, 88 Ga. App. 548, 77 S.E.2d 232 (1953); Morris v. State, 228 Ga. 39, 184 S.E.2d 82 (1971) (decided under former Civil Code 1895, § 5292); 405 U.S. 1050, 92 S. Ct. 1511, 31 L. Ed. 2d 786 (1972);(decided under former Penal Code 1910, § 1052);(decided under former Civil Code 1910, § 5881);(decided under former Civil Code 1910, § 5881);(decided under former Code 1933, § 38-1803);cert. denied,(decided under former Code 1933, § 38-1803).
Foundation for impeachment by prior inconsistent statements is as follows: the cross-examiner will ask the witness whether the witness made the alleged statement, giving the statement's substance, and naming the time, the place, and the person to whom made; if the witness denies the making of the statement, or fails to admit the statement, then the requirement of "laying the foundation" is satisfied and the cross-examiner, at the next stage of giving evidence, may prove the making of the alleged statement. Carter v. State, 244 Ga. 803, 262 S.E.2d 109 (1979) (decided under former Code 1933, § 38-1803); Sell v. State, 156 Ga. App. 333, 274 S.E.2d 723 (1980);(decided under former Code 1933, § 38-1803).
Statement of victim not admitted without foundation.
- Trial court did not err in failing to allow the defendant to testify as to a prior inconsistent statement made by the victim during a preliminary inquiry hearing when the foundation requirement of former O.C.G.A. § 24-9-83 was not met since the victim was not questioned about the victim's prior inconsistent statement, and thus was afforded no opportunity to explain or deny the statement before the statement was offered at trial to impeach the victim. Horne v. State, 204 Ga. App. 81, 418 S.E.2d 441 (1992) (decided under former O.C.G.A. § 24-9-83); Searcy v. State, 214 Ga. App. 620, 448 S.E.2d 468 (1994);(decided under former O.C.G.A. § 24-9-83).
Impeachment with recorded statement not permitted.
- Trial court did not err in refusing to allow impeachment of the plaintiff with a statement made in a tape recorded interview after the investigator who conducted the interview was not available to testify, the transcript contained many indications of omissions and indecipherable speech, and the tape itself was barely audible. Georgia Ports Auth. v. Harris, 243 Ga. App. 508, 533 S.E.2d 404 (2000) (decided under former O.C.G.A. § 24-9-83).
Counsel failed to lay proper foundation.
- Police report of an investigating officer, which allegedly contained prior inconsistent statements of witnesses, was not allowed into evidence because defense counsel failed to lay the proper foundation for the admission of the report. Armour v. State, 265 Ga. App. 569, 594 S.E.2d 765 (2004) (decided under former O.C.G.A. § 24-9-83).
Inconsistent statement admitted on other grounds when no foundation laid.
- Evidence of a victim's statement to the police, although not properly admitted as a prior inconsistent statement due to the failure to lay a proper foundation under former O.C.G.A. § 24-9-83, was properly admitted as part of the res gestae under former O.C.G.A. § 24-3-3 (see now O.C.G.A. § 24-8-803) because the victim's description of a distinctive jacket worn by one of the individuals who took a pickup truck was used by the police to search the defendant's residence. Stubbs v. State, 293 Ga. App. 692, 667 S.E.2d 905 (2008) (decided under former O.C.G.A. § 24-9-83).
Impeachment inappropriate when inadequate foundation laid.
- Trial court's decision to foreclose the defendant from impeaching two of the state's witnesses during defendant's crossexamination of the responding police officer with the witnesses prior recorded statements was appropriate because the door to impeachment was never opened since the witnesses never denied making a contradictory statement; even assuming the witnesses denied making a contradictory statement, the defense never laid a proper foundation for the use of any such statement for impeachment purposes. Mubarak v. State, 305 Ga. App. 419, 699 S.E.2d 788 (2010) (decided under former O.C.G.A. § 24-9-83).
Witness given opportunity to admit, explain, or deny.
- Trial court did not err in allowing hearsay testimony from the defendant's siblings regarding their father's prior inconsistent statements about the incidents leading up to the charges filed, and the state laid the proper foundation for this testimony as: (1) the statements at issue contradicted the victim's in-court testimony and were certainly relevant; (2) the victim denied making these statements; and (3) the victim's explanation of the incident as an accident was elicited on cross-examination, and hence, such was sufficient to provide the foundational requirement that the witness be given the opportunity to admit, explain, or deny the prior statements. Therefore, the three requirements for admissibility were met. Buchanan v. State, 282 Ga. App. 298, 638 S.E.2d 436 (2006) (decided under former O.C.G.A. § 24-9-83).
Trial court properly allowed the state to question a detective about one victim's initial statement identifying the defendant and co-defendant as assailants, and to admit a recording of that statement into evidence because a proper foundation was laid as through the testimony, the witness demonstrated that the state sufficiently called to the witness' mind the time, place, person, and circumstances of the statement such that the witness could explain or deny the statement. Williams v. State, 335 Ga. App. 841, 783 S.E.2d 362 (2016).
Admission of witness's prior contradictory statement.
- With regard to a defendant's convictions for murder, felony murder, aggravated assault, and armed robbery, the trial court did not err by admitting certain prior inconsistent statements made by a witness with regard to seeing the defendant with a gun as both impeachment and substantive evidence because the witness was presented with the witness's prior contradictory statement and was allowed to fully review the statement after being reminded of the time, place, person, and circumstance of the statement. After that review, the witness testified that the witness was both familiar with the statement and that the statement was fair and accurate, although the witness continued to question the statement's contents; therefore, under those circumstances, an adequate foundation was laid for the statement to be used as impeachment evidence, and, since the witness was available at trial for cross-examination, the statement was also properly admitted as substantive evidence for the jury's consideration. McKnight v. State, 283 Ga. 56, 656 S.E.2d 830 (2008) (decided under former O.C.G.A. § 24-9-83).
Trial court did not err in admitting the victim's prior inconsistent statements to law-enforcement officers because a foundation was laid when the victim gave testimony inconsistent with those statements in which the victim denied that the defendant had attacked the victim. Chambers v. State, 351 Ga. App. 771, 833 S.E.2d 155 (2019).
Statement need not be introduced prior to questioning.
- It is not necessary to admit the alleged inconsistent statement into evidence before questioning the witness about the statement. Harden v. State, 166 Ga. App. 536, 304 S.E.2d 748 (1983) (decided under former O.C.G.A. § 24-9-83).
Trial court erred by limiting defendant's cross-examination of a witness by not allowing the use of an alleged prior inconsistent statement contained in a document which the defendant refused to tender into evidence. Duckworth v. State, 268 Ga. 566, 492 S.E.2d 201 (1997) (decided under former O.C.G.A. § 24-9-83).
Trial court's error in requiring defendant to tender statements of victims into evidence before using prior inconsistencies allegedly contained therein for impeachment purposes was harmless since the subsequently tendered statements were used in cross-examination of the victims. Maxwell v. State, 233 Ga. App. 419, 503 S.E.2d 668 (1998) (decided under former O.C.G.A. § 24-9-83).
In order to lay the foundation for impeaching a witness with a prior inconsistent statement, the cross-examiner must show the written contradictory statement to the witness or read the statement in his or her hearing; the attorney need not introduce the prior written statement into evidence before using the statement to impeach the witness. Robinson v. State, 265 Ga. App. 481, 594 S.E.2d 696 (2004) (decided under former O.C.G.A. § 24-9-83).
Requirements as to laying of foundation fulfilled.
- See Peterson v. State, 166 Ga. App. 719, 305 S.E.2d 447 (1983) (decided under former O.C.G.A. § 24-9-83); Meschino v. State, 259 Ga. 611, 385 S.E.2d 281 (1989); Ward v. State, 271 Ga. 648, 520 S.E.2d 205 (1999) (decided under former O.C.G.A. § 24-9-83);(decided under former O.C.G.A. § 24-9-83).
Witnesses' viewing of recordings of the witnesses' earlier statements satisfies the requirement that the time, place, person, and circumstances attending the former statements shall be called to the witness's mind with as much certainty as possible pursuant to former O.C.G.A. § 24-9-83 (see now O.C.G.A. §§ 24-6-608 and24-6-613). Williams v. State, 304 Ga. App. 592, 696 S.E.2d 512 (2010) (decided under former O.C.G.A. § 24-4-8) (decided under former O.C.G.A. § 24-9-83).
Proper foundation for a child molestation victim's prior inconsistent statement to police and authorities was laid under former O.C.G.A. § 24-9-83 by the victim acknowledging making the prior statements, conceding that the statements were contradictory to the victim's trial testimony, and explaining that the allegations were fabricated to anger the defendant's spouse. Gunter v. State, 313 Ga. App. 756, 722 S.E.2d 450 (2012) (decided under former O.C.G.A. § 24-9-83).
Proper foundation was laid before evidence impeaching defendant admitted. Eller v. State, 183 Ga. App. 724, 360 S.E.2d 53 (1987) (decided under former O.C.G.A. § 24-9-83).
Trial court properly admitted a portion of a witness's written statement as a prior inconsistent statement under former O.C.G.A. § 24-9-83 because the state laid the appropriate foundation for the admission of the statement and the witness attempted to explain the inconsistency. Howell v. State, 278 Ga. App. 634, 629 S.E.2d 398 (2006) (decided under former O.C.G.A. § 24-9-83).
Proper foundation for videotaped statement laid.
- Foundation for the use of a prior videotaped statement by a defendant's accomplice to impeach the accomplice's trial testimony was established by the accomplice when the accomplice testified that the accomplice had in fact given a videotaped statement in which the accomplice stated that the defendant was the one who shot and killed a community service officer, and there was no requirement that the accomplice actually reviewed the videotape before the videotape was used to impeach the accomplice. Byrum v. State, 282 Ga. 608, 652 S.E.2d 557 (2007) (decided under former O.C.G.A. § 24-9-83).
Prior inconsistent statement of victim admitted.
- Trial court's admission of the victim's prior inconsistent statement to a police investigator regarding the events surrounding the crime charged was proper as the prosecutor questioned the victim at considerable length regarding the statement, a tape recording of the victim's9-1-1 call was played, and then the prosecutor questioned the victim in detail regarding the contents of the earlier statement which the victim denied making. Gooch v. State, 289 Ga. App. 74, 656 S.E.2d 214 (2007) (decided under former O.C.G.A. § 24-9-83).
No proper foundation was laid for proof of contradictory statement. Downside Risk, Inc. v. Metropolitan Atlanta Rapid Transit Auth., 168 Ga. App. 202, 308 S.E.2d 547 (1983) (decided under former O.C.G.A. § 24-9-83).
Although witness one, who made a prior inconsistent statement was present and available for cross-examination, introduction of the prior inconsistent statement through witness two was improper because witness one testified before the issue of the alleged statement to witness two had been raised, and witness one was never questioned with the specificity necessary to establish the foundation for admission of the alleged prior inconsistent statement. Edmond v. State, 283 Ga. 507, 661 S.E.2d 520 (2008) (decided under former O.C.G.A. § 24-9-83).
Defendant failed to properly impeach defendant's witness by proof of previous contradictory statement, for while defendant put another witness on the stand who proffered that the witness overheard the allegedly inconsistent statement, the defendant never, on direct examination, asked the original witness questions concerning the time, place, or circumstances attending the former statement, nor did the defendant bring the witness back to the witness stand for further questioning along this line. Smith v. State, 171 Ga. App. 758, 321 S.E.2d 213 (1984) (decided under former O.C.G.A. § 24-9-83).
Trial counsel did not provide ineffective assistance by failing to object to the arresting detective's testimony about what a witness told the defendant just prior to a shooting because although the testimony was inadmissible hearsay since the state failed to lay a proper foundation for the admission of a prior inconsistent statement by not asking the witness about the witness's statement, the defendant failed to show a reasonable probability that the outcome of the trial would have been different if counsel had objected to the testimony; four eyewitnesses other than the witness testified that those witnesses saw the defendant shoot the victim, and the witnesses independently picked the defendant out of a photographic lineup. Cannon v. State, 288 Ga. 225, 702 S.E.2d 845 (2010) (decided under former O.C.G.A. § 24-9-83).
It was not error to exclude a preliminary hearing transcript offered to impeach a witness when a proper foundation was not laid. Sosebee v. State, 169 Ga. App. 370, 312 S.E.2d 853 (1983) (decided under former O.C.G.A. § 24-9-83).
Circumstances attending statement.
- If the witness made a contradictory statement, it was proper for counsel for defendants to call to the witness's attention the name of the person or company to whom made, and the circumstances attending the statement. Sweet v. Awtrey, 70 Ga. App. 334, 28 S.E.2d 154 (1943) (decided under former Code 1933, § 38-1803).
Recall of witness to lay foundation.
- Trial court erred in refusing to allow the defense to recall a prosecution witness to lay a foundation for admission of prior contradictory statements; the court's ruling forced the defendant to choose between testifying personally or foregoing the admission of relevant evidence. Childress v. State, 266 Ga. 425, 467 S.E.2d 865 (1996) (decided under former O.C.G.A. § 24-9-83).
Reading statement to witness.
- Though a written statement not under oath must be read in the hearing of the witness, one under oath and made in connection with some judicial proceeding need not be read to the witness. Wilkerson v. State, 73 Ga. 799 (1884) (decided under former Code 1882, §§ 3871, 3872, and 3875); Washington v. State, 124 Ga. 423, 52 S.E. 910 (1905);(decided under former Penal Code 1895, § 1026).
To lay the proper foundation for the admission of a prior written inconsistent statement, the statement must be shown to the witness, or read in the witness's hearing. Davis v. State, 235 Ga. App. 256, 510 S.E.2d 537 (1998) (decided under former O.C.G.A. § 24-9-83).
Cross examination of officers from reports.
- After counsel read five sentences from a police officer's report during crossexamination of that witness, it was held not to be evidence, but foundational language as contemplated by former O.C.G.A. § 24-9-83. Davis v. State, 235 Ga. App. 256, 510 S.E.2d 537 (1998) (decided under former O.C.G.A. § 24-9-83).
Court would reject the contention that the defendant had two deputies read paragraphs from their police reports into evidence simply to lay the required evidentiary foundation for impeaching the deputies with their prior inconsistent statements since defense counsel went beyond "mere cross-examination" and did more than recall a contradiction to the deputies by reading their prior inconsistent statements to the deputies when counsel had each deputy read into evidence paragraphs taken from police reports that had been marked and handled before the jury as defense exhibits and, further, those paragraphs contained information addressing matters other than the challenged contradictory statements. Aldridge v. State, 237 Ga. App. 209, 515 S.E.2d 397 (1999) (decided under former O.C.G.A. § 24-9-83).
Technical variance in the name stated by the witness as that of the person to whom a statement had been made and the witness's name when introduced for purposes of impeachment will not prevent the laying of a proper foundation when there is no real doubt that the two names belong to the same person. Taylor v. State, 135 Ga. 622, 70 S.E. 237 (1911) (decided under former Penal Code 1910, § 1052).
Witness failing to recall previous statements.
- Proof that a witness made previous statements contradictory to the statements the witness made while testifying is admissible, though the witness testifies the witness does not remember whether or not the witness made such previous contradictory statements. Waycaster v. State, 136 Ga. 95, 70 S.E. 883 (1911) (decided under former Penal Code 1910, § 1052); Estill v. Citizens & S. Bank, 153 Ga. 618, 113 S.E. 552 (1922); Lexington Developers, Inc. v. O'Neal Constr. Co., 145 Ga. App. 309, 243 S.E.2d 577 (1978) (decided under former Civil Code 1910, § 5881);(decided under former Code 1933, § 38-1803).
Impeaching evidence not called to witness's mind.
- When a written statement of a witness is introduced in evidence by agreement of counsel, admitting not that the statement is true, but that the writing shows what the witness would testify at the trial if present, the statement is subject to impeachment even though the impeaching evidence cannot be called to the witness's mind on cross-examination in the manner provided by statute. Travelers Ins. Co. v. Miller, 104 Ga. App. 554, 122 S.E.2d 268 (1961) (decided under former Code 1933, § 38-1803).
No contradictory statement.
- When no statement was made by the witness which could be contradicted, no foundation could be laid for impeachment purposes. Casey v. State, 133 Ga. App. 161, 210 S.E.2d 375 (1974) (decided under former Code 1933, § 38-1803); Hardeman v. Metropolitan Atlanta Rapid Transit Auth., 157 Ga. App. 271, 277 S.E.2d 65 (1981);(decided under former Code 1933, § 38-1803).
No foundation for admission of audiotape.
- Since the police officer made no statement on an audiotape that differed materially from the officer's in-court testimony, and the officer did not deny any statement made earlier, the foundation for the admission of the audiotape was not made, and it was properly excluded. Ow v. State, 255 Ga. App. 98, 564 S.E.2d 512 (2002) (decided under former O.C.G.A. § 24-9-83).
Inaccessibility of witness at the time it is sought to lay this foundation does not justify a departure from statute. Georgia, Fla. & Ala. Ry. v. Sasser, 4 Ga. App. 276, 61 S.E. 505 (1908) (decided under former Civil Code 1895, § 5292).
Testimony only by deposition.
- When the plaintiff testified only by deposition, and plaintiff had not been examined in respect to the statements contained in the document, and plaintiff had not been confronted with the document by which it was sought to impeach plaintiff's testimony, or apprised of the contention that its effect was to contradict plaintiff's statements, the rule forbidding use of contradictory statements to impeach evidence taken by deposition was applicable. Metropolitan Life Ins. Co. v. Saul, 189 Ga. 1, 5 S.E.2d 214 (1939) (decided under former Code 1933, § 38-1803).
Time.
- When the foundation has been laid for impeaching a witness, the witness called to prove the different statements will not be confined to any particular time. Thomasson v. Driskell, 13 Ga. 253 (1853) (decided under former law).
No obligation to listen to prior audiotape.
- State was not obliged to let a witness listen to the witness's taped prior inconsistent statement before playing back the recording to impeach the witness. As the prosecutor questioned the witness in detail about the time, place, person, and circumstances attending the former statement, including the inconsistency at issue, this line of questioning established an ample foundation for introduction of the statement. Cade v. State, 289 Ga. 805, 716 S.E.2d 196 (2011) (decided under former O.C.G.A. § 24-9-83).
Jury should be sent out.
- If it is necessary to read the statement in order to determine whether the witness signed the statement, the jury should be sent out while the reading takes place. Robinson v. State, 120 Ga. 311, 47 S.E. 968 (1904) (decided under former Penal Code 1895, § 1026).
Harmless error.
- When the time, place, person, and circumstances attending a former contradictory statement made by a witness is not called to the witness's mind with as much certainty as possible, the subsequent statement cannot be impeached; however, when this evidence was admissible as a matter of substantive law, though the procedure through which the evidence was admitted was not correct, the improper admission was harmless error. Felts v. State, 244 Ga. 503, 260 S.E.2d 887 (1979) (decided under former Code 1933, § 38-1803).
Reversible error not found.
- Even though the defendant failed to lay a foundation prior to using contradictory statements to impeach plaintiff's expert witness, it was not reversible error because the questioning complained of was elicited by the plaintiff during cross-examination of the witness. Spearman v. Georgia Bldg. Auth., 224 Ga. App. 801, 482 S.E.2d 463 (1997) (decided under former O.C.G.A. § 24-9-83).
Sustaining Witness
Introduction of entire former statement.
- When it is sought to impeach a witness by proving contradictory statements made by the witness under oath, it is competent to bring out all the testimony given by the witness on the former hearing, upon the point in question, in order to show that on the whole it is not inconsistent with the testimony of the witness given at the trial in progress. Lowe v. State, 97 Ga. 792, 25 S.E. 676 (1896) (decided under former Penal Code 1895, § 1026); Wynes v. State, 182 Ga. 434, 185 S.E. 711 (1936);(decided under former Code 1933, § 38-1803).
No variance in testimony.
- It is a defense to the witness to show there is no variance in the testimony. Brantley v. State, 133 Ga. 264, 65 S.E. 426 (1909) (decided under former Penal Code 1895, § 1026).
Prior consistent statements.
- Witness sought to be impeached by proof of contradictory statements cannot be supported by proof that the witness made elsewhere other statements consistent with the witness's testimony on the stand. Fussell v. State, 93 Ga. 450, 21 S.E. 97 (1893) (decided under former Code 1882, §§ 3871, 3872, and 3875); Cook v. State, 124 Ga. 653, 53 S.E. 104 (1906); Smith v. State, 7 Ga. App. 252, 66 S.E. 556 (1909) (decided under former Penal Code 1895, § 1026); 7 Ga. App. 802, 68 S.E. 334 (1910); Cobb v. State, 11 Ga. App. 52, 74 S.E. 702 (1912), later appeal, Douglas v. Herringdine, 117 Ga. 72, 159 S.E.2d 711 (1967) (decided under former Penal Code 1895, § 1026);(decided under former Penal Code 1910, § 1052);(decided under former Code 1933, § 38-1803).
Trial counsel was not ineffective for failing to object to hearsay testimony because a witness's testimony that the mother told the witness about the fight with the defendant before the child's death rebutted the attack made by trial counsel on the mother's credibility, and the statements were therefore prior consistent statements, not hearsay. Sawyer v. State, 308 Ga. 375, 839 S.E.2d 582 (2020).
Prior inconsistent statement admitted and counsel not ineffective for failing to object.
- Appellant's claim of ineffective assistance of counsel due to trial counsel's failure to make an objection failed because the witness testimony challenged was properly admitted as a prior inconsistent statement under O.C.G.A. § 24-6-613(b); thus, the failure to make a meritless objection did not provide a basis upon which to find ineffective assistance of counsel. Burney v. State, 299 Ga. 813, 792 S.E.2d 354 (2016).
Because the neighbor was not called as a witness at the hearing on the motion for new trial, and the appellate court did not know what the neighbor would have said had the neighbor been given the opportunity to explain or deny the neighbor's prior statements, trial counsel was not ineffective as the defendant did not show that the defendant was prejudiced by counsel's failure to introduce extrinsic evidence of the neighbor's alleged prior statements. Espinosa v. State, 352 Ga. App. 698, 834 S.E.2d 558 (2019).
Officers testimony consistent with dates of victim not bolstering.
- Admission of testimony by an officer who spoke with a child molestation victim was proper to show that the victim's prior statement of what occurred that was made to the officer was consistent with the dates the victim testified to on direct examination and which were directly challenged during cross-examination; the officer's testimony was limited to the credibility issue raised in the victim's cross-examination and was not a bolstering of the victim's general credibility. Joines v. State, 264 Ga. App. 558, 591 S.E.2d 454 (2003) (decided under former O.C.G.A. § 24-9-83).
Admission of conversation between officers.
- Testimony by one officer regarding what a witness told another officer was admissible under the prior consistent statement exception to the hearsay rule since the witness's veracity was placed in issue and the witness was subject to cross-examination. Johnson v. State, 265 Ga. App. 777, 595 S.E.2d 625 (2004) (decided under former O.C.G.A. § 24-9-83).
Instructions
Charging statute not required.
- There is no error in failing to charge this statute in the absence of an appropriate written request. Western & Atl. R.R. v. Holt, 22 Ga. App. 187, 95 S.E. 758 (1918) (decided under former Civil Code 1910, § 5881); Carson v. State, 22 Ga. App. 743, 97 S.E. 202 (1918); Lee v. State, 37 Ga. App. 632, 141 S.E. 317 (1928) (decided under former Penal Code 1910, § 1052); Smith v. State, 79 Ga. App. 595, 54 S.E.2d 378 (1949); Hinton v. State, 85 Ga. App. 249, 69 S.E.2d 116 (1952) (decided under former Penal Code 1910, § 1052); Hand v. State, 90 Ga. App. 452, 83 S.E.2d 276 (1954);(decided under former Code 1933, § 38-1803);(decided under former Code 1933, § 38-1803);(decided under former Code 1933, § 38-1803).
Failure to charge all modes of impeachment.
- When the judge having charged correctly upon one of the modes or methods of impeachment, to wit, impeachment by contradictory statements, the judge's failure to charge also upon the other modes of impeachment of disproving facts testified to by the witness, and also on the method of impeachment when a witness's testimony shall be disregarded entirely, was not reversible error in the absence of a request. Hall v. Burpee, 176 Ga. 270, 168 S.E. 39 (1933) (decided under former Code 1933, § 38-1803); Milwaukee Mechanics Ins. Co. v. Davis, 79 Ga. App. 70, 52 S.E.2d 643 (1949);(decided under former Code 1933, § 38-1803).
Failure to give pattern instruction on impeachment proper.
- In a married couple's personal injury case, the trial court did not err in not giving parts of the pattern charge on impeachment requested by an insurance carrier on the ground that the couple's trial testimony contradicted their previous statements or actions. Because the carrier did not offer evidence that disproved the facts to which the couple testified, the portion of the charge that pertained to impeachment by disproving facts was not applicable, and the trial court was thus authorized to refuse the entire charge; furthermore, the trial court's charge to the jury that the jury could consider the witnesses' manner of testifying and demeanor as well as the probability or improbability of their testimony and their personal credibility adequately covered the necessary principles. Ga. Farm Bureau Mut. Ins. Co. v. Turpin, 294 Ga. App. 63, 668 S.E.2d 518 (2008) (decided under former O.C.G.A. § 24-9-83).
Charge on relevant testimony not required.
- Charge need not be qualified by a statement that only relevant testimony could be contradicted when impeachment of irrelevant evidence was not attempted. Tucker v. Central of Ga. Ry., 122 Ga. 387, 50 S.E. 128 (1905) (decided under former Civil Code 1895, § 5292); Goldberg v. State, 22 Ga. App. 122, 95 S.E. 541 (1918);(decided under former Penal Code 1910, § 1052).
Corroboration unnecessary.
- When instructing the jury on the method of impeachment provided for by statute it was error for the court to instruct the jury that, if the jury believed a witness had made previous statements contradictory to the witness's testimony delivered on the trial, such testimony should be disregarded, unless the testimony was corroborated by other credible evidence, or was corroborated by the proven circumstances in the case. Ricks v. State, 70 Ga. App. 395, 28 S.E.2d 303 (1943) (decided under former Code 1933, § 38-1803).
Former trial.
- In criminal prosecution, court's charge to the effect that the jury should not consider anything said or done in the former trial of the case was not an infringement and invasion of the province of the jury trying the case, notwithstanding the contention that had the jury been allowed to consider testimony from the former trial, the jury could have concluded that the evidence in the present trial was inconsistent and contradictory to evidence and statements made by prosecution witness previously and thus could have believed the statement of the defendant. Crosby v. State, 92 Ga. App. 335, 88 S.E.2d 523 (1955) (decided under former Code 1933, § 38-1803).
Charge alluding to particular witness.
- When there exists a difference between opposing counsel as to whether there is a discrepancy between the testimony of a witness and a previous statement alleged to be contradictory of the testimony, the court in the charge may allude to the particular witness. Walker v. State, 137 Ga. 398, 73 S.E. 368 (1912) (decided under former Penal Code 1910, § 1052).
Limiting instruction required for Miranda-violating prior statements.
- When prior inconsistent statements are used to impeach trial statements, a limiting instruction is required even absent a request. The significance of not so limiting the jury's consideration would be to allow a Miranda-violating statement to be used as substantive evidence. However, if the statement is found by the trial court not to have been obtained in violation of the defendant's rights against self-incrimination, the court need not give a limiting instruction absent defendant's request. Fussell v. State, 187 Ga. App. 134, 369 S.E.2d 511 (1988) (decided under former O.C.G.A. § 24-9-83).
Function of Jury
Impeachment and credibility are questions for jury when a witness is sought to be impeached by reason of having previously made contradictory statements out of court as to matters relevant to the witness's testimony and to the case. King v. State, 163 Ga. 313, 136 S.E. 154 (1926) (decided under former Penal Code 1910, § 1052); United Motor Freight Term Co. v. Hixon, 78 Ga. App. 638, 51 S.E.2d 679 (1949); Champion v. State, 84 Ga. App. 163, 65 S.E.2d 280 (1951) (decided under former Code 1933, § 38-1803); Wynn v. Johns, 97 Ga. App. 605, 104 S.E.2d 150 (1958); Travelers Ins. Co. v. Miller, 104 Ga. App. 554, 122 S.E.2d 268 (1961) (decided under former Code 1933, § 38-1803);(decided under former Code 1933, § 38-1803);(decided under former Code 1933, § 38-1803).
Question for jury or court.
- When contradictory statements are established as having been made by a witness, it then becomes a question for the jury as to whether or not such witness has been successfully impeached; if such contradiction is not on matters relevant to the witness's testimony and to the case, or if the prior statement fails to amount to a contradiction at all, the question of whether or not the witness has been successfully impeached is then one of law for the court. Travelers Ins. Co. v. Bailey, 76 Ga. App. 698, 47 S.E.2d 103 (1948) (decided under former Code 1933, § 38-1803).
Testimony need not be excluded.
- When a state's witness is impeached, the effect of the impeaching evidence is to be determined by the jury, and the testimony of the witness need not be excluded. Henrich v. McCouley, 151 Ga. 138, 106 S.E. 94 (1921) (decided under former Civil Code 1910, § 5881); Griffin v. State, 123 Ga. App. 820, 182 S.E.2d 498 (1971);(decided under former Code 1933, § 38-1803).
Jury may believe witness.
- Question of credibility is always for the jury, and though a witness swore falsely on the other trial, the witness's contention that the witness was under duress may cause the jury to believe the witness. Williams v. State, 69 Ga. 11 (1882) (decided under former Code 1882, §§ 3871, 3872, and 3875).
Accepting part of testimony.
- Jury may believe part of the testimony and disbelieve other parts. Atlantic Coast Line R.R. v. Heyward, 82 Ga. App. 337, 60 S.E.2d 641 (1950) (decided under former Code 1933, § 38-1803).
When testimony is disregarded, the jury must place that testimony in the same category as if the witness had not testified at all. Harper v. State, 85 Ga. App. 252, 69 S.E.2d 102 (1952) (decided under former Code 1933, § 38-1803).
When prior statement fails to amount to contradiction, the fact-finding tribunal cannot disregard the testimony of the witness, and when facts sufficient to support an issue have thus been testified to, such issue has, prima facie, been established. Travelers Ins. Co. v. Bailey, 76 Ga. App. 698, 47 S.E.2d 103 (1948) (decided under former Code 1933, § 38-1803).
RESEARCH REFERENCES
Am. Jur. 2d.
- 29 Am. Jur. 2d, Evidence, §§ 362, 365 et seq., 663. 81 Am. Jur. 2d, Witnesses, §§ 218, 423 et seq., 458 et seq., 501, 505.
ALR.
- May a witness who testifies to facts be impeached by showing of prior inconsistent expressions of opinion by him, 66 A.L.R. 289; 158 A.L.R. 820.
Extrajudicial statements by witness who is subject to cross-examination as evidence of facts to which they relate, 133 A.L.R. 1454.
Right to show in civil case that party or witness refused to testify on same matter under claim of privilege in previous criminal proceeding, 2 A.L.R.2d 1297.
Binding effect, upon party litigant, of testimony of his witnesses at a former trial, 74 A.L.R.2d 521.
Impeachment of accused as witness by use of involuntary or not properly qualified confession, 89 A.L.R.2d 478.
Denial of recollection as inconsistent with prior statement so as to render statement admissible, 99 A.L.R.3d 934.
Admissibility of affidavit to impeach witness, 14 A.L.R.4th 828.
Use or admissibility of prior inconsistent statements of witness as substantive evidence of facts to which they relate in criminal case - modern state cases, 30 A.L.R.4th 414.
Admissibility of impeached witness's prior consistent statement - modern state criminal cases, 58 A.L.R.4th 985; 59 A.L.R.4th 1000.
Effect of Rule 801(d)(1)(B) of the Federal Rules of Evidence upon the admissibility of a witness's prior consistent statement, 47 A.L.R. Fed 639.