Cross-Examination & Impeachment
A defendant who testifies is subject to impeachment just as any other witness. However, it is inappropriate for the prosecutor to question a defendant about the content of his conversations with his attorney. O.C.G.A. §§ 24-9-21, 24-9-24; Bryant v. State, 288 Ga. 876 (2011).
A defendant may testify on his own behalf yet upon cross-examination as to matters not testified to on direct examination decline to give testimony which would tend to incriminate him. Bishop v. Bishop, 157 Ga. 408 (1924). Thus a defendant may testify in his own defense but refuse to answer questions about a pending similar transaction (404B). Whitman v. State, 316 Ga. App. 655 (2012). But See Dunham v. State, 315 Ga. App. 901 (2012)(by choosing to testify Dunham submitted himself to cross-examination about similar transaction that was already in evidence).
A plea of nolo contender, also called a no contest plea, cannot be used against a defendant in any other court or proceeding as an admission of guilt or for any other purpose including impeachment. Hooper v. State, 284 Ga. 824 (2009); Pittman v. State, 265 Ga. App. 655 (2004); O.C.G.A. § 24-6-609(d).
Confessions made during plea negotiations with the prosecutor are not admissible, because they are made in the hope that the defendant will get a better deal than he would otherwise. Gray v. State, 240 Ga. App. 716 (1999); McMahon v. State, 308 Ga. App. 292 (2011); O.C.G.A. § 24- 4-410.
Under O.C.G.A. § 24-9-84.1 a defendant's convictions may be admissible for impeachment. Damerow v. State, 310 Ga. App. 530 (2011). The judge can admit the evidence only when he determines that the probative value substantially outweighs its prejudicial effect. O.C.G.A. § 24-9- 84.1 (a) (2); O.C.G.A. § 24-9-84.1 (b); Johnson v. State, 307 Ga. App. 791 (2011); Robinson v. State, 312 Ga. App. 736 (2011); O.C.G.A. § 24-6-609(a) (evidence of conviction less than ten years old admissible if judge finds probative value outweighs prejudicial effect).
To ensure a meaningful analysis of the relevant factors, the judge is required to make express findings when balancing the probative value and the prejudicial effect of such evidence. Lawrence v. State, 305 Ga. App. 199 (2010). The judge's finding must be made on the record. Miller v. State, 298 Ga. App. 792 (2009). As long as the judge makes express findings, even if made in an order on a motion for new trial, the requirements of the statute are satisfied. Hogues v. State, 313 Ga. App. 717 (2012); Carter v. State, 303 Ga. App. 142 (2010).
Although the State cannot be the first to introduce bad character evidence of the defendant, the rules change somewhat after a defendant testifies. Evidence that would be inadmissible as bad character evidence may be admissible to impeach the truthfulness of the defendant's testimony. Robinson v. State, 312 Ga. App. 110 (2011); Keaton v. State, 311 Ga. App. 14 (2011).
Under O.C.G.A. § 24-9-82 a witness may be impeached by disproving the facts testified to by him. O.C.G.A. § 24-6-621. Thus, while a criminal defendant is not subject to impeachment by proof of general bad character until he puts his general good character in evidence, he is subject to impeachment the same as any other witness. Evidence of prior crimes or bad acts can be admitted where such evidence is necessary and relevant to impeach the defendant's specific testimony. Lucas v. State, 215 Ga. App. 293 (1994). Where the defendant testifies and admits prior criminal conduct he has raised an issue which may be fully explored by the State on cross examination. Cobb v. State, 251 Ga. App. 697 (2001); Durrence v. State, 307 Ga. App. 817 (2011).