Sunday, September 27, 2015

The Georgia prohibition on judicial comments| Paulding County criminal defense lawyer

The Georgia prohibition on judicial comments goes back to at least 1849 and the new statute that was passed by the Gen. assembly was OCGA 9-10-7 which currently provides as to civil cases, it is error for any judge, during the progress of any case, or in his charge to the jury, to express or intimate his opinion as to what has or has not been proved. Should any judge violate this code section, the violation shall be held by the Supreme Court or Court of Appeals to be error, the decision in the case shall be reversed, and the new trial shall be granted in the court below with such directions as the Supreme Court or the Court of Appeals may lawfully give. In 1850 the Gen. assembly also passed the predecessor to OCGA 17-8-57 which currently provides us to criminal cases, it is error for any judge in any criminal case, during its progress or in his charge to the jury, to express or intimate his opinion as to what has or has not been proved or as to the guilt of the accused. This of course makes a lot of sense as juries give a lot of credibility to what the trial judge believes or has to say. The problem is sometimes the trial judge doesn't say anything but makes facial expressions or movements that show opinion or disbelief. The jury is able to pick up on the subtle hints given by the trial judge and often times are persuaded. Based on the law this should not happen but what should a trial lawyer do when this is happening in a case he or she is trying? The answer that is to object and ask the judge to give a curative instruction to the jury. If the judge refuses it is important  to put everything on the record. This will preserve the issue on appeal. The Georgia judicial comments statute do not apply in federal court, even in diversity actions were Georgia law provides the rule of decision. The stringency of the Georgia prohibition on judicial comment is demonstrated by the mandatory provision in both OCGA 9-10-7 and OCGA 17-8-57 that a new trial shall be granted if the judicial comment occurs. Furthermore, at least in the context of criminal cases, it appears that corrective instructions, whereby the trial judge explains that he did not intend to express an opinion, may not be able to cure the presumptively harmful error. There are a number of civil cases indicating, without directly holding, that a curative instruction may preclude the grant of a new trial. Contact an experienced trial attorney, an attorney in Paulding County to represent you in your legal matters.

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