Back in December I wrote about possible changes to Georgia’s “super-plain error” rule, OCGA § 17-8-57. Bills to amend OCGA § 17-8-57 have now been introduced in the House (HB 196) and the Senate (SB 99). Except for one phrase, the two bills are identical (at the time of this writing).
These are the changes to 17-8-57 in the current House version:
(a) It is error for any judge, during any phase of
in any criminal case, during its progress or in his charge to the jury, to express or intimate his to the jury the judge’s opinion as to what whether a fact that has not been stipulated has or has not been proved or as to the guilt of the accused. Should any judge violate this Code section, the violation shall be held by the Supreme Court or Court of Appeals to be error and the decision in the case reversed, and a new trial granted in the court below with such directions as the Supreme Court or Court of Appeals may lawfully give.
(b) Any party who alleges a violation of subsection (a) of this Code section shall make a contemporaneous objection, outside of the jury’s hearing and presence, and inform the court of the specific objection and the grounds for such objection.
(c) If the court finds that subsection (a) of this Code section has been violated, it shall be the duty of the court to give a curative instruction to the jury.
(d) Failure to make a contemporaneous objection to an alleged violation of subsection (a) of this Code section shall preclude appellate review, unless such violation constitutes plain error which affects substantial rights of the parties. Such plain error may be considered on appeal even if it was not brought to the court’s attention as provided in subsection (b) of this Code section.
In case it isn’t obvious, these changes would be good for prosecutors, and bad for criminal defendants. But then, § 17-8-57 as it currently exists is about as pro-defendant as it could be, so that isn’t surprising. On the spectrum of possible changes that I discussed in my earlier post, the proposals fall somewhere in the middle.
Section 17-8-57 today provides for automatic reversal when a judge expresses a prohibited opinion, even if the defendant didn’t object and no prejudice resulted (a “super-plain error” standard of review). The amended version would provide either “plain error” review (if no objection was made) or ordinary review (probably under an abuse of discretion standard) if an objection was made. Plain error is a relatively familiar standard that is already applied in other contexts, such as criminal jury charges under OCGA § 17-8-58.
The proposed changes borrow from § 17-8-58, but do much more than just copy-paste that section. Some comments, in the order the language appears in the statute:
“during any phase” – I don’t think this edit would make any substantive change to existing law. The new language would be clearer and more modern.
“to the jury” – It seems to me this should be “to the jury or the venire,” or even more broadly, “in the presence of any juror or any member of the venire.” Perhaps that is what is intended, and this phrase might be interpreted to include the venire anyway, but it could be clearer. The current version of § 17-8-57 has been interpreted to apply to comments to the venire (and such comments have been fertile ground for reversals). And if a comment is heard by the jury, I don’t think it should matter that it was made “to” counsel, a witness, or anyone else.
“a fact that has not been stipulated” vs. “a fact at issue” – This is the one phrase where the two current bills differ: SB 99 has “at issue” where HB 196 has “that has not been stipulated.” Comments about truly uncontested matters should not be grounds for reversal, as I said in my earlier post. I think this is already the law, but it would be helpful to set out the exact standard, so I am glad to see these proposals.
“That has not been stipulated” has the advantage of clarity (a fact is either in the written pre-trial stipulations or not), but facts not stipulated could be essentially uncontested or minor issues in the case. Such language could actually broaden § 17-8-57 (that is, result in more reversals) compared to current law. “At issue,” on the other hand, would be consistent with most of the existing cases.
Neither version addresses the problem that has arisen in several recent cases with venue comments. (Those include not only Rouse v. State, 296 Ga. 213 (2014), which was decided in November and got the General Assembly moving on this issue, but Sales v. State, S14A1478, decided two weeks ago based on an almost identical venue comment.) “Not stipulated” and “at issue” probably mean the same thing when it comes to venue in criminal cases, as a matter of Georgia law. Perhaps substituting language like “a fact contested by a defendant” or even “actively contested by a defendant” would fix that, but might run into constitutional problems.
“has or has not been proved or as to the guilt of the accused” – This language is unchanged in the bills. But the more I think about this statute, the more I think this language is a big part of the problem with it. It is both underinclusive and overinclusive.
It’s underinclusive in that it doesn’t specifically address some judicial comments that I think most lawyers would agree have an unfairly prejudicial effect on a trial. Just to take one example, it doesn’t directly address comments on the credibility of a witness. For example, in McKee v. State, 275 Ga. App. 646, 649 (2005), the appeals court found no § 17-8-57 violation where the judge described the state’s expert witness as “the Godfather” of child abuse medical examiners. My gut feeling is that this type of comment should result in reversal. It’s gratuitous, and it puts the judge’s imprimatur on the witness. But it doesn’t quite fit into § 17-8-57’s prohibition. (Note that other cases have reversed under § 17-8-57 for other particular comments on credibility.) Two more examples are aggressive judicial questioning of witnesses, and derogatory judicial comments on the performance of counsel.
It’s overinclusive in that – under the current version of the statute – it results in reversals for comments that seem innocuous. What “has or has not been proved” is very broad. It forces trial judges to be overly cautious in their choice of words.
Now that legislators are considering narrowing the statute’s effect by taking away the automatic-reversal component, I think they could safely consider broadening the subject matter of prohibited comments.
Another suggestion I’ve heard is to treat expressions as to the guilt of the accused differently from other violations. Such expressions have the potential to be much more prejudicial than expressions about the evidence. But probably for the same reason, such expressions seem to occur rarely (or at least, to make it to appeal rarely). It’s a lot easier to find § 17-8-57 reversals for comments on the evidence than for comments on guilt, and to the extent there are reversals for comments on guilt, the comments are usually made indirectly. See, e.g., Gibson v. State, 288 Ga. 617 (2011).
Deletion of the second sentence – This is the change proposed by the dissenters in Rouse, which I discussed in my earlier post. This deletion would end the automatic reversal aspect of the statute. It would mean that the harmless error doctrine applies.
New subsection (b): “contemporaneous objection” – Pretty straightforward. Under the existing statute, a defendant often should deliberately avoid objecting to improper judicial comments on the evidence. Objecting just draws attention to the comment and is completely unnecessary to securing a new trial on appeal. By not objecting, the defendant gets to see how the first trial turns out, then play a new trial card if he’s convicted. Although the proposed changes don’t completely remove the possibility of strategic non-objection, they at least give defendants an incentive to contemporaneously object.
New subsection (c): “duty of the court to give a curative instruction” – I think the statute needs to at least mention the possibility of a mistrial. I doubt the drafters intend to take away the trial judge’s discretion to grant a mistrial, and the proposed language probably wouldn’t be interpreted to take it away, but it could be clarified.
Overall I find the phrasing of this subsection a little strange. It makes the curative instruction mandatory (“duty of the court”), but seems to leave it in the discretion of the court whether to find a violation in the first place (“If the court finds…”). So, arguably, a refusal to give a curative instruction would be reviewable only for abuse of discretion (which is the usual standard of review for curative instruction decisions in Georgia, but would be a major change from the current automatic reversal regime for judicial comments).
I would try phrasing it something like this: “If subsection (a) of this Code section has been violated, the court upon motion of a party shall give a curative instruction to the jury, in a form to be determined by the court, and may in its discretion declare a mistrial.”
New subsection (d): “plain error” – This is the core of the proposed amendment and goes hand-in-hand with the deletion of the second sentence of the current statute. It’s also the least interesting part of the changes since it largely tracks OCGA § 17-8-58(b).
I don’t know much about legislative procedure so I can’t add anything about the future prospects for these bills. I should mention there’s also a bill (SB 98) to similarly amend the civil analogue to § 17-8-57, which is § 9-10-7, but I’m not as familiar with the cases under that statute.