---
title: Ga. Const. Art. I, Sec. I, Para. XVI. Self-incrimination.
collection: code
id: ga-const:art-i-sec-i-para-xvi
cite_as: Ga. Const. Art. I, Sec. I, Para. XVI
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---

# Ga. Const. Art. I, Sec. I, Para. XVI. Self-incrimination.

A constitution provision shown as in force is in force as printed in the volume. A court decision can make a printed provision unenforceable without changing the volume, and the volume does not record that.

No person shall be compelled to give testimony tending in any manner to be self-incriminating.

## Cross References

Due process of law and just compensation, U.S. Const., amend. 5, and § 38-2-411. Juvenile delinquency proceedings, § 15-11-31. Voluntary testimony of defendant, §§ 17-7-28 and 24-5-506. Admissibility in evidence of confessions and admissions, § 24-8-824 et seq. Freedom from self-incrimination in trial discovery, § 24-5-505. Certain situations in which incriminating testimony may be compelled, §§ 34-8-253, 46-2-55, and 46-2-93. Use of evidence of driver’s refusal to submit to chemical test for alcohol or drugs in blood, § 40-6-392.

## Law Reviews

For article, ‘‘Personal Rights, Property Rights and Due Process: A Comparison of Constitutional Protection in the Georgia Supreme Court and the United States Supreme Court,’’ see 9 Mercer L. Rev. 253 (1958). For article discussing admissibility of illegally obtained evidence as violative of right not to incriminate self and advocating a state exclusionary rule, see 11 Ga. L. Rev. 105 (1976). For article surveying developments in Georgia juvenile court practice and procedure from mid-1980 through mid-1981, see 33 Mercer L. Rev. 167 (1981). For article, ‘‘The Georgia Bill of Rights: Dead or Alive?,’’ see 34 Emory L.J. 341 (1985). For article, ‘‘Court Ordered Surgery to Retrieve Evidence in Georgia in Light of the Supreme Court Decision in Winston v. Lee,’’ see 37 Mercer L. Rev. 1005 (1986). For annual survey of criminal law, see 57 Mercer L. Rev. 113 (2005). For annual survey of death penalty decisions, see 57 Mercer L. Rev. 139 (2005).

For note, ‘‘Criminal Discovery: The Use of Notices to Produce,’’ see 30 Mercer L. Rev. 331 (1978). For note on the Georgia right against self-incrimination, see 15 Ga. L. Rev. 1104 (1981).

For comment on Allbright v. State, 92 Ga. App. 251, 88 S.E.2d 468 (1955), holding that the admission of photographs in which defendants were ordered to pose was error as photographs were taken in violation of the self-incrimination clause of the Georgia Constitution, see 18 Ga. B.J. 344 (1956). For comment on Thomas v. State, 213 Ga. 237, 98 S.E.2d 548 (1957), holding that since defendant did not object to being placed in his car for the purposes of identification, it was not error to allow testimony concerning the incriminating act and no constitutional right was violated, see 20 Ga. B.J. 384 (1958). For comment discussing privilege against self-incrimination involved when accused is forced to speak so as to identify voice, in light of Aaron v. State, 122 So. 360 (Ala. 1960), see 24 Ga. B.J. 125 (1961). For comment criticizing Aldrich v. State, 220 Ga. 132, 137 S.E.2d 463 (1964), applying privilege against self-incrimination to driver who refuses to drive his truck onto weighing scales, see 16 Mercer L. Rev. 315 (1964). For comment on Smith v. State, 225 Ga. 328, 168 S.E.2d 587 (1969), see 6 Ga. St. B.J. 294 (1970). For comment, ‘‘The Tacit Admission Rule: Unreliable and Unconstitutional — A Doctrine Ripe for Abandonment,’’ see 14 Ga. L. Rev. 27 (1979). For comment on Alderman v. State, 241 Ga. 496, 246 S.E.2d 642, cert. denied, 439 U.S. 991, 99 S. Ct. 593, 58 L. Ed. 2d 666 (1978), see 31 Mercer L. Rev. 349 (1979).

## 1976 Constitution.

Art. I, Sec. I, Para. XIII.

## O.c.g.a. § 35-3-160) Constitutional.

Prisoners’ claim that former O.C.G.A. § 24-4-60 (see now O.C.G.A. § 35-3-160) was unconstitutional because the statute forced them to submit self incriminatory evidence in violation of the Fifth Amendment of the United States Constitution and Ga. Const. 1983, Art. I, Sec. I, Para. XVI, failed because DNA samples were not testimonial in nature. Padgett v. Ferrero, 294 F. Supp. 2d 1338 (N.D. Ga. 2003).

## Defendant Not Subjected to Custodial Interrogation.

Defendant’s claim that the statements defendant made to an officer as to defendant’s intent to buy drugs and ownership of the jacket defendant was wearing, which contained a digital scale, should have been excluded as defendant had not been advised of defendant’s Miranda rights was rejected. Miranda was inapplicable as defendant was not in custody since: (1) defendant was being questioned pursuant to a developing crime scene investigation; (2) a reasonable person in defendant’s position would not have believed that the person was in custody as defendant’s accomplice was the target of the investigation; and (3) defendant was allowed to leave the scene. Lewis v. State, 268 Ga. App. 547, 602 S.E.2d 278 (2004).

Miranda warnings required before

## Custodial Interrogation.

Questioning an inmate, whether by peace officers or prison officials, when the purpose of the interrogation relates to a suspected crime for which criminal prosecution might ensue, is a custodial hearing, and requires a Miranda warning in order to render any statements made therein admissible in a subsequent hearing. Grant v. State, 154 Ga. App. 758, 270 S.E.2d 42 (1980).

A disciplinary hearing while incarcerated in a state correctional institution is a custodial hearing which requires an appropriate warning of the right against self-incrimination before any statements made are admissible against the speaker in a subsequent criminal proceeding for those same criminal acts (in the absence of waiver). Grant v. State, 154 Ga. App. 758, 270 S.E.2d 42 (1980).

## Time When Miranda Warnings Required.

Defendant who voluntarily accompanied police to a sheriff’s office where the defendant was interviewed, who was not under arrest and not restrained, and who began telling the officers what the defendant had ‘‘heard’’ when it became apparent that the defendant knew too much about the crime only needed to have Miranda warnings at that point. Wilson v. State, 208 Ga. App. 812, 432 S.E.2d 211 (1993).

Factors for determining whether

## Defendant in Custody.

Trial court erred in suppressing a defendant’s pre-Miranda statements based on the court’s findings that police had probable cause to arrest and that defendant was the focus of the investigation as these considerations were irrelevant for determining whether the defendant was ‘‘in custody’’ for Miranda purposes. The proper inquiry was how a reasonable person in the defendant’s position would have perceived the situation. State v. Folsom, 285 Ga. 11, 673 S.E.2d 210 (2009).

Inadequate invocation of

## Self-incrimination Privilege.

Because defendant’s statement that defendant should not talk in the absence of ‘‘real talk’’ was insufficient to trigger the interrogating agent’s duty to cease questioning, the trial court did not err in admitting defendant’s later statements to the police. Barnes v. State, 287 Ga. 423, 696 S.E.2d 629 (2010).

## Warnings Not Required at Nonaccusatory, On-the-scene Investigation.

Miranda warnings are not required when a person responds to an officer’s initial inquiry at an on-the-scene investigation which has not become accusatory. Collins v. State, 154 Ga. App. 651, 269 S.E.2d 509 (1980). ney. United States v. Webb, 633 F.2d 1140 (5th Cir. 1981).

Privilege applies to attorney being

## Interrogation Must Cease When Individual Unequivocally Asks for Attorinvestigated by Disciplinary Authorities of Bar.

An attorney whose professional activities are under investigation by the disciplinary authorities of the State Bar of Georgia is entitled to the protection of the constitutional safeguards of the federal and state Constitutions against self-incrimination. Wilson v. State Bar, 225 Ga. 343, 168 S.E.2d 584, cert. denied, 396 U.S. 957, 90 S. Ct. 429, 24 L. Ed. 2d 421 (1969).

## Judge Cannot Call Defendant as Witness at Hearing.

Although a defendant has the right to testify at the defendant’s Jackson-Denno hearing, the trial judge cannot call the defendant as a witness. Shepherd v. State, 236 Ga. 787, 225 S.E.2d 312 (1976).

Immunity promised when party compelled to answer incriminating

## Questions.

This paragraph is not violated by an act compelling a party to answer incriminating questions, provided it guarantees immunity from a criminal proceeding. White v. Crane, 62 Ga. 399 (1879).

## Comments on Pre-trial Silence.

Prosecutor’s two improper comments on defendant’s pre-trial silence were not reversible error as the trial court took corrective measures after the first comment and defendant failed to request a curative instruction or a mistrial after the second comment. Lewis v. State, 279 Ga. 69, 608 S.E.2d 602, cert. denied, 546 U.S. 987, 126 S. Ct. 571, 163 L. Ed. 2d 478 (2005).

In a prosecution for shoplifting, the trial court properly denied defendant’s motion for a mistrial after the state improperly commented on the right to remain silent, as the error was harmless, given the overwhelming evidence of guilt, eyewitness testimony, and videotaped evidence of the crime, and the prosecutor’s compliance with an instruction to not make any further comment on defendant’s silence. Ekanger v. State, 279 Ga. App. 421, 631 S.E.2d 459 (2006).

During a defendant’s trial for aggravated child molestation and related charges, even if a police officer was properly allowed to testify about the defendant’s refusal to discuss or deny the allegations against the defendant, it was error to permit questioning of the defendant on the subject; the error was not harmless and the defendant’s convictions required reversal because the prosecution deliberately and repeatedly placed the evidence before the jury, the defendant denied having sexual relations with the victim, numerous witnesses testified for the defense, and the victim gave conflicting testimony. Maynard v. State, 282 Ga. App. 598, 639 S.E.2d 389 (2006).

In a case in which ineffective assistance of counsel was claimed due to counsel’s failure to object to a comment in the prosecutor’s closing argument that the defendant could have given the defendant’s version of the facts of a domestic dispute to the police, the appellate court improperly relied on exclusions to comments on a defendant’s silence in Morrison v. State, 554 S.E.2d 190 (2001); the court overruled Morrison based on the bright-line rule in Mallory v. State, 409 S.E.2d 839 (1991), that, with reference to former O.C.G.A. § 24-3-36 (see now O.C.G.A. § 24-8-801), that comment upon a defendant’s silence or failure to come forward was far more prejudicial than probative. Reynolds v. State, 285 Ga. 70, 673 S.E.2d 854 (2009).

## No Prejudice From Improper Comment on Silence.

Denial of a motion for a mistrial was proper given the trial court’s prompt, detailed curative instruction to the jury; it was unlikely that the defendant was prejudiced by the prosecutor’s improper comment on defendant’s silence. Ford v. State, 274 Ga. App. 695, 617 S.E.2d 262 (2005).

Denial of a motion for a mistrial was proper as there was only one reference to the defendant’s election not to make a statement to the police, the prosecutor did not solicit the reference, and the prosecutor neither mentioned the defendant’s silence nor sought to draw any prejudicial inferences from it; there was no focus on the defendant’s silence sufficient to constitute prejudicial error. Haggins v. State, 277 Ga. App. 742, 627 S.E.2d 448 (2006). General Consideration (Cont’d)

In a defendant’s trial for armed robbery and related offenses, a police officer’s comment on the defendant’s refusal to make a statement was harmless error because no prejudice resulted; the officer’s inadvertent remark was stopped mid-sentence, the trial court instructed the jury to completely disregard the remark, and the state made no subsequent references to the defendant’s silence and drew no prejudicial inferences from it. Wright v. State, 282 Ga. App. 649, 639 S.E.2d 581 (2006).

Accused may not be placed in in-


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