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Flashcards in Criminal Procedure Distinctions Deck (45)
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1

Under Georgia law, when may a law enforcement officer can make a warrantless arrest?

A law enforcement officer can make a warrantless arrest if:

  • The offense is committed in the officer's presence or within the officer's immediate knowledge
  • The offender is attempting to escape
  • The officer has probable cause to believe that an act of family violence has been committed
  • The officer has probable cause to believe the offender has violated a crminal family violence order; additionally, the officer cannot have any prior or current familial relationship with the alleged victim or the offender
  • The officer has probable cause to believe that an offense involving physical abuse has been committed against an adult with a physical or mental impairment
  • For other cause if there is likely to be failure of justice for failure to issue a warrant.

2

Under Georgia law, who holds the burden of proof for the validity of a search warrant?

The burden of proof is always on the state when the validity of a search warrant is in question. The challenger has the burden of production, but only after the state has met its initial burden of producing evidence showing the validity of the warrant.

3

Under Georgia law, what is considered "unreasonable delay" regarding executing warrants?

Warrants must be executed within ten days, or the warrant is void.

4

Under Georgia law, who may a police officer search when processing a warrant?

A police officer executing a warrant can reasonably detain or search any person in the location listed in the warrant to protect himself or keep the person from concealing or disposing anything particularly described in the search warrant.

5

Under Georgia law, may law enforcement use "pen registers"?

The use of a pen register requires a warrant under Georgia law.

6

Under Georgia law, may law enforcement make audio recordings?

Georgia is a "one-party" state for recording conversations by audio, which means that any party to a conversation can make an audio recording of a conversation without the knowledge of any other party to the conversation.

7

Under Georgia law, may law enforcement use video recording?

Georgia is an "all-party" state for video recording, meaning that all parties recorded by video in a private place and out of public view must consent for their actions to be recorded.

8

Under Georgia law, may a person record another in a private place?

By statute, it is unlawful for a person to photograph or record another in a private place without consent of all persons, and evidence obtained in violation of this statute is inadmissible in any Georgia court except to prove the violation.

The statute provides exceptions for law enforcmeent use and for real property owners who record activity on their land for security purposes.

9

Under Georgia law, when does the "good-faith" exception apply?

There is no good-faith exception to the exclusion rule in Georgia.

10

Under Georgia law, when are Miranda warnings required?

Miranda warnings are only required when the defendant has been taken into custody or significantly deprived of freedom of action.

11

Under Georgia law, what is considered "custody"?

In Georgia, the inquiry focuses on whether the defendant was formally arrested, or restrained to the degree associated with formal arrest.

The inquiry does not hinge on whether the police had probable cause to make the arrest.

12

Under Georgia law, is a traffic stop considered "custodial"?

A traffic stop is generally not considered custodial.

If the officer makes statements that would lead a reasonable person to believe the detention is not temporary, then the stop may be custodial.

13

Under Georgia law, is an involuntary confession admissible?

Georgia law specifically provides that a statement is not voluntary when it was "induced by another by the slightest hope of benefit or remotest fear of injury."

The hope of benefit contemplated by the statute includes the promise of a lighter sentence for the crime charged.

14

Under Georgia law, what is a Gerstein hearing?

The U.S. Supreme Court, in Gerstein v. Pugh, held a preliminary hearing must be held after the defendant's arrest to determine whether probable cause exists to hold the defendant, unless such determination has already been made before the defendant's arrest through a grand jury indictment or the judicial issuance of an arrest warrant. This hearing need not be adversarial.

It is considered a commitment hearing.

15

Under Georgia law, what is the initial appearance requirement?

Arrested parties must be brought before a committing judicial officer within 72 hours after arrest.

The defendant must be provided advanced notification of the time and place of the hearing, or he must be released.

16

Under Georgia law, what is the law of bail considerations and entitlement?

In general, granting or refusing bail is within the sound discretion of the trial court.

The primary consideration for the court is whether the defendant poses a significant risk of fleeing or failing to appear. In addition, the court should consider whether there is a significant risk of

  • threat to any person, the community, or property,
  • committing a felony pending trial, or
  • intimidating witnesses or obstructing the administration of justice.

17

Under Georgia law, what is any defendant refused bail entitled to?

Any person who is arrested for a crime and is refused bail is entitled to have the charge against him heard by a grand jury within 90 days of confinement.

This period may be extended by an additional 90 days if the death penalty is being sought and the superior court grants an extension upon motion of the district attorney for good cause.

If the grand jury does not consider the charges within this 90 day period, the accused is entitled to bail upon request to the court.

18

Under Georiga law, what is the competency requirement?

If the defendant pleads incompetency and neither party demands a jury trial, the court must have a bench trial to determine if the defendant is competent to stand trial.

19

Under Georgia law, what occurs if a bench trial determines the defendant is incompetent?

If the defendant is incompetent, the court retains jurisdiction over the accused and must transfer the accused to the physical custody of the Department of Behavioral Heath and Developmental Disabilities.

The court can order a department physician or licensed psychologist to evaluate and diagnose the accused as to whether there is a substantial probability that the defendant will attain mental competency to stand trial in the foreseeable future.

The evaluation can be made on an outpatient basis if the defendant is not accused of a violent crime. The court retains custody for a maximum of nine months. After the time, if the defendant is still incompetent to stand trial, the court must proceed with civil commitment or release.

20

Under Georgia law, must the State provide a defendant in a felony case access to any witnesses?

In Georgia, the defendant in a felony case must be given a copy of the indictment and list of witnesses before the arraignment. The state may amend this witness list at a later time.

21

Under Georgia law, must the State provide evidence to felony defendants?

At least 10 days before trial, the prosecutor must disclose

  • any relevant written or recorded statements made by the defendant in response to interrogation that is in the possession, custody, or control of the state or prosecution,
  • the portion of any written record containing the substance of any relevant oral statement made by the defendant in response to interrogation, if intended for trial,
  • any relevant written or oral statement the defendant made while in custody, and
  • statements of co-conspirators that are attributable to the defendant.

22

Under Georgia law, to whom does the state provide evidence when the felony defendant is a corporation, partnership, association, or labor union?

If the defendant is a corporation, partnership, association, or labor union, the court can grant the defendant discovery of any similar statement of a witness who was an officer or employee with the ability to legally bind the defendant or was personally involved when the offense occurred.

23

Under Georgia law, must the state provide a defendant his or her criminal history?

The state must also give the defendant a copy of his or her Georgia Crime Information Center criminal history that is within the possession, custody, or control of the state or prosecution.

24

Under Georgia law, must the state provide physical evidence?

The state must allow the defendant to inspect and copy books, papers, documents, photographs, tangible objects, audio and visual tapes, films, and recordings, and to inspect and photograph buildings or places that are within the possession, custody, or control of the state or prosecution, and that the prosecution intends to use as evidence.

A defendant may not copy these written and visual items if they are intended for use in a trial regarding an obscenity charge relating to children. The defendant must provide the same type of items.

25

Under Georgia law, must the state provide a felony defendant any medical reports?

The state must also allow the defendant to inspect and copy a report of any physicial or mental examinations and scientific tests or experiments. The state must include a summary of the basis for the expert opinion rendered in the report if it will be introduced at trial and reduce oral reports to writing.

This section does not require disclosure of psychiatric or psychological treatment or therapy of any victim or witness. The defendant must provide the same type of items.

26

Under Georgia law, must the state provide evidence for aggravation of punishment?

The prosecutor must give the defendant notice of any evidence for aggravation of punishment that the state plans to introduce in sentencing.

27

Under Georgia law, what physical evidence must the defense provide?

At or before the announcement of the verdict, the defendant must provide any books, papers, documents, photographs, tangible objects, audio and visual tapes, films and recordings that he or she plans to use at a presentence hearing.

28

Under Georgia law, what medical or scientific evidence must the defendant provide?

At or before the announcement of the verdict, the defendant must give the prosecutor the reports of any physical or mental examinations and scientific tests of experiments, including a summary of the basis for the exprt opinions rendered in the reports. If they are oral, the defendant must reduce them to writing.

29

Under Georgia law, must the defendant provide a list of witnesses?

The defendant must provide a list of witnesses he will call at the presentence hearing, and any relevant statement made by those witnesses.

30

Under Georgia law, must the defendant provide notice that he plans to use a defense?

The defendant must provide written notice that he plans to use an alibi defense.

The state provide the names, addresses, dates of birth, and telephone numbers of known witnesses the state intends to provide to rebut the alibi defense.

Both parties must promptly inform the other party of the existence and identity of subsequently discovered witnesses.