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Seeking Evidence in a Criminal Case

by merlin on October 16th, 2013
  • Sumo

When seeking tangible evidence in a criminal matter, as opposed to a civil matter, the primary vessel is always the reciprocal evidentiary Discovery provisions of § 17-6-4, which applies to that evidence that is considered “exculpatory” in possession of either the State, in exchange for the evidence in the possession of the defense, or vice-versa (for damning information in the possession of the Defendant).

Whether the evidence is “exculpatory” or not is yet another question!

The necessity of “opting in” to criminal reciprocal Discovery is long-settled.  The evidence in possession of the State may not be available otherwise (see, for instance, the 1999 case of Lucious v. State, 271 Ga. 361, in which it was established that there is no general constitutional right to discovery in a criminal case, and that a defendant who does not opt in to the reciprocal Discovery provisions is not entitled to scientific reports in the possession of the State).

The 1984 case of Sims v. State (251 Ga. 877) established that the statutory provisions governing a “notice to produce” are applicable to criminal cases.  In civil Discovery, it is possible to seek permission from the Court to pursue evidence in the possession of a third party not involved in the case itself.  The general rule is that the Discovery procedure is to be given a liberal construction in favor of supplying a party with the facts without reference to whether the facts sought are admissible upon the trial of the action.  Sechler Family Partnership v. Prime Group, Inc., 255 Ga.App. 854, 567 S.E.d2 24 (Ga. Ct. App. 2002).  What Sims holds is something not generally confronted in the criminal forum, it is particularly notable for the following:

“In a criminal case a notice to produce pursuant to OCGA § 24–10–26 (Code Ann. § 38–801) may compel the production of books, documents or tangible things in the State’s possession “where such books, etc., would be admissible and are needed for use as evidence on behalf of the defendant.” 246 Ga. at 64, 268 S.E.2d 895. [Emphasis supplied.]”  Sims at 879-880.

This was decided under a previous iteration of the Georgia Code, but there does not appear to be anything inhibiting that idea.

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