SB 202: Discovery; discovery in misdemeanor cases; change provisions

Senate Bill 202

By: Senators Jones II of the 22nd, Rhett of the 33rd, Rahman of the 5th, Goodman of the 8th and James of the 28th

A BILL TO BE ENTITLED

AN ACT

To amend Chapter 16 of Title 17 of the Official Code of Georgia Annotated, relating to discovery, so as to change provisions relating to discovery in misdemeanor cases; to provide for a defendant to opt into reciprocal discovery similar to provisions in felony cases; to require the defendant to provide the prosecuting attorney with a list of witness and alibi information; to provide for procedure; to provide for sanctions; to provide for related matters; to repeal conflicting laws; and for other purposes.

BE IT ENACTED BY THE GENERAL ASSEMBLY OF GEORGIA:

SECTION 1.

Chapter 16 of Title 17 of the Official Code of Georgia Annotated, relating to discovery, is amended by revising Article 2, relating to discovery in misdemeanor cases, as follows: "ARTICLE 2

17-16-20.

(a) The provisions of this article shall apply only to misdemeanor cases or to felony cases docketed, indicted, or in which an accusation was returned prior to January 1, 1995, if the prosecuting attorney and the defendant do not agree in writing that the provisions of Article 1 of this chapter shall apply when at or prior to arraignment, or at such time the court permits, the defendant provides written notice to the prosecuting attorney that such defendant elects to have this article apply to the defendant's case. When one defendant in a multidefendant case demands discovery under this article, the provisions of this article shall apply to all defendants in the case, unless a severance is granted.

(b) Except as provided in subsection (c) of this Code section, this article shall not apply to juvenile court proceedings.

(c) This article shall be deemed to have been automatically invoked, without the written notice provided for in subsection (a) of this Code section, when a defendant has sought discovery pursuant to Chapter 11 of Title 9, the 'Georgia Civil Practice Act,' pursuant to Part 8 of Article 6 of Chapter 11 of Title 15, or pursuant to the Uniform Rules for the Juvenile Courts of Georgia when such discovery material is the same as the discovery material that may be provided under this article when a written notice is filed pursuant to subsection (a) of this Code section.

(d) This article is not intended to authorize discovery or inspection of attorney work product.

17-16-21.

(a) Prior to or at arraignment, every person charged with a criminal offense the defendant shall be furnished with a copy of the indictment or accusation and, on demand, with a list of the witnesses on whose testimony the charge against such person is founded. Without the consent of the defendant, no witness shall be permitted to testify for the state whose name does not appear on the list of witnesses as furnished to the defendant unless the prosecuting attorney shall state that the evidence sought to be presented is newly discovered evidence which the state was not aware of at the time of its furnishing the defendant with a list of the witnesses.

(b) If a defendant elects to have this article apply, the prosecuting attorney, not later than ten days before trial, or as otherwise ordered by the court, shall provide the defendant with a list of witnesses that the state intends to call as witnesses at trial. Such list shall include the names, address and current locations, dates of birth, and telephone numbers of the state's witnesses, unless for good cause the court allows an exception to this requirement, in which event the defendant shall be afforded an opportunity to interview such witnesses prior to the witnesses being called to testify. If the witness is a law enforcement officer, the prosecuting attorney shall furnish the defendant with such officer's current work location and work phone number.

(c) Within ten days after the prosecuting attorney provides a list of witnesses, but no later than five days prior to trial, or as otherwise ordered by the court, the defendant shall furnish the prosecuting attorney with a list of witnesses that the defendant intends to call at trial. Such list shall include the names, address and current locations, dates of birth, and telephone numbers of the defendant's witnesses, unless for good cause the court allows an exception to this requirement, in which event the prosecuting attorney shall be afforded an opportunity to interview such witnesses prior to the witnesses being called to testify.

(d) If prior to or during trial the prosecuting attorney or defendant learns of additional witnesses whose identity, if known, should have been included in the information furnished pursuant to this Code section, the discovering party shall notify the other party of the existence and identity of such additional witnesses.

(e) The prosecuting attorney or defendant may call as a witness any individual listed on either witness list.

(b)(f) Nothing in this Code section shall be construed to require any person charged with a criminal offense to be furnished the home address, date of birth, or home telephone number of a witness who is a law enforcement officer or a nonsworn employee of a law enforcement agency. Instead, in such cases, such person shall be furnished with the current work location and work phone number of the law enforcement officer or nonsworn employee of a law enforcement agency.

(c)(g) Any formerly employed or retired law enforcement officer or nonsworn employee of a law enforcement agency may use the address and phone number of the last agency where he or she was employed as his or her contact information for purposes of this Code section. Use of this subsection by an officer or employee shall constitute a waiver of any claim by such officer or employee as to any defect of service or notice of hearing if the service or notice was provided to the designated law enforcement agency and shall impose an affirmative obligation on such officer or employee to keep current his or her personal address and phone number information with such agency.

17-16-22.

(a) At If the defendant elects to have this article apply, the prosecuting attorney shall, at least ten days prior to the trial of the case, disclose to the defendant shall be entitled to have a copy of any statement given by the defendant while in police custody. The defendant may make such request for a copy of any such statement, in writing, within any reasonable period of time prior to trial.

(b) If the defendant's statement is oral or partially oral, the prosecution prosecuting attorney shall furnish, in writing, all relevant and material portions of the defendant's statement.

(c) Failure of the prosecution to comply with a defendant's timely written request for a copy of such defendant's statement, whether written or oral, shall result in such statement being excluded and suppressed from the prosecution's use in its case-in-chief or in rebuttal. If the defendant elects to have this article apply, the prosecuting attorney shall, at least ten days prior to the trial of the case, make available for inspection or copying by the defendant copies of the police incident report and all supplemental police reports, if any, regarding the occurrence which forms the basis of the charges.

(d) If the defendant's statement is oral, no relevant and material, incriminating or inculpatory, portion of the statement of the defendant may be used against the defendant unless it has been previously furnished to the defendant, if a timely written request for a copy of the statement has been made by the defendant.

(e)(d) This Code section shall not apply to evidence information subject to disclosure pursuant to this Code section which is discovered after a request has been filed. If a request has been filed, such evidence information shall be produced as soon as possible after it has been discovered.

17-16-23.

(a) As used in this Code section, the term 'written scientific reports' includes, but is not limited to, reports from the Division of Forensic Sciences of the Georgia Bureau of Investigation; an autopsy report by the coroner of a county or by a private pathologist; blood alcohol test results done by a law enforcement agency or a private physician; and similar types of reports that would be used as scientific evidence by the prosecution in its prosecuting attorney in the prosecution's case-in-chief or in rebuttal against the defendant.

(b) In all criminal trials the defendant shall be entitled to have If the defendant elects to have this article apply, the prosecuting attorney shall, at least ten days prior to trial of the case, disclose to the defendant a complete copy of any written scientific reports in the possession of the prosecution which will be introduced in whole or in part against the defendant by the prosecution in its prosecuting attorney in the prosecution's case-in-chief or in rebuttal. The request for a copy of any written scientific reports shall be made by the defendant in writing at arraignment or within any reasonable time prior to trial. If such written request is not made at arraignment, it shall be within the sound discretion of the trial judge to determine in each case what constitutes a reasonable time prior to trial. If the scientific report is in the possession of or available to the prosecuting attorney, the prosecuting attorney must comply with this Code section at least ten days prior to the trial of the case.

(c) Failure by the prosecution to furnish the defendant with a copy of any written scientific report, when a proper and timely written demand has been made by the defendant, shall result in such report being excluded and suppressed from evidence in the prosecution's case-in-chief or in rebuttal.

17-16-24.

If the defendant elects to have this article apply, the prosecuting attorney shall permit the defendant at a time agreed to by the parties or ordered by the court to inspect and copy or photograph books, papers, documents, photographs, tangible objects, or copies or portions thereof and to inspect audio and visual tapes or copies or portions thereof that are within the possession, custody, or control of the state or prosecution and are intended for use by the prosecuting attorney as evidence in the prosecution's case-in-chief or rebuttal at the trial.

17-16-25.

(a) If the defendant elects to have this article apply, when the prosecuting attorney provides a discovery response that includes the time, date, and place at which the alleged offense was committed, the defendant shall serve upon the prosecuting attorney, within ten days of the discovery response from the prosecuting attorney or ten days prior to trial, whichever is later or as ordered by the court, a written notice of the defendant's intention to offer a defense of alibi. Such notice by the defendant shall state the specific place or places at which the defendant claims to have been at the time of the alleged offense and the names, addresses, dates of birth, and telephone numbers of the witnesses, if known to the defendant, upon whom the defendant intends to rely to establish such alibi unless previously supplied.

(b) The prosecuting attorney shall serve upon the defendant within five days of the defendant's written notice but no later than five days before trial, whichever is later, a written notice stating the names, addresses, dates of birth, and telephone numbers of the witnesses, if known to the state, upon whom the state intends to rely to rebut the defendant's evidence of alibi unless previously supplied.

(c) If prior to or during trial a party learns of an additional witness whose identity, if known, should have been included in the information furnished under subsection (a) or (b) of this Code section, the party shall promptly notify the other party of the existence and identity of such additional witness.

(d) Upon a showing that a disclosure required by this Code section would create a substantial threat of physical or economic harm to a witness, the court may grant an exception to any of the requirements of subsections (a) through (c) of this Code section.

(e) If the defendant withdraws the notice of intention to rely upon an alibi defense, the notice and intention to rely upon an alibi defense are not admissible. However, the prosecuting attorney may offer any other evidence regarding alibi.

17-16-26.

If at any time during the course of the proceedings it is brought to the attention of the court that the state has failed to comply with the requirements of this article, the court may order the state to permit the discovery or inspection, grant a continuance, or, upon a showing of prejudice and bad faith, prohibit the state from introducing the evidence not disclosed or presenting the witness not disclosed, or may enter such other order as it deems just under the circumstances. If at any time during the course of the proceedings it is brought to the attention of the court that the defendant has failed to comply with the requirements of this article, the court may order the defendant to permit the discovery or inspection, interview of the witness, grant a continuance, or, upon a showing of prejudice and bad faith, prohibit the defendant from introducing the evidence not disclosed or presenting the witness not disclosed, or may enter such other order as it deems just under the circumstances. The court may specify the time, place, and manner of making the discovery, inspection, and interview and may prescribe such terms and conditions as are just.

17-16-27.

Nothing in this article shall supersede the prosecuting attorney's duty to disclose all evidence, known or that may become known to him or her, favorable to the defendant and material either to guilt or punishment."

SECTION 2.

All laws and parts of laws in conflict with this Act are repealed.