DEFENSES
Accident
Georgia law says that no person shall be found guilty of any crime committed by misfortune or accident where there was no criminal scheme, undertaking, or intention (or criminal negligence). An accident is an event that takes place without one's foresight or expectation, which takes place, or begins to exist, without design. O.C.G.A. § 16-2-2. The defense of accident is available to a defendant charged with a strict liability offense. Ogilvie v. State, 313 Ga. App. 305 (2011).
Alibi
The defense of alibi involves the impossibility of the defendant's presence at the scene of the offense. O.C.G.A. § 16-3-40. The evidence of alibi must reasonably exclude the possibility of the defendant's presence. If the evidence is vague or uncertain, the judge does not have to instruct the jury that the defense of alibi applies to the case. Morey v. State, 312 Ga. App. 678 (2011); Dixon v. State, 157 Ga. App. 550 (1981).
Character (Good)
Merely having no convictions or a clean record is not sufficient evidence of good character. Pulley v. State, 291 Ga. 330 (2012).
Coercion
Under the defense of coercion a person is not guilty of a crime, except murder, if the act upon which the supposed criminal liability is based is performed under such coercion that the person reasonably believes that performing the act is the only way to prevent his imminent death or great bodily injury. O.C.G.A. § 16-3-26. Bush v. State, A12A0918. The danger of present and immediate violence must coincide with the commission of the act. Calmes v. State, 312 Ga. App. 769 (2011); Gordon v. State, 234 Ga. App. 531 (1998).
Insanity
Under O.C.G.A. § 16-3-2 a person cannot be found guilty of a crime if at the time of the act the person did not have the mental capacity to distinguish between right and wrong. When an insanity defense is raised the jury can find the defendant: (1) Guilty; (2) Not guilty; (3) Not guilty by reason of insanity at the time of the crime; (4) Guilty but mentally ill; or (5) Guilty but mentally retarded. McBride v. State, 314 Ga. App. 725 (2012). An insanity defense does not require expert testimony. Motes v. State, 256 Ga. 831 (1987). However, if the defense chooses to raise insanity through an expert, the State must have the opportunity to have an expert interview the defendant and be available to present evidence. McBride v. State, 314 Ga. App. 725 (2012). If the defense of insanity is raised the judge must instruct the jury to consider it in arriving at their verdict. Morgan v. State, 224 Ga. 604 (1968).
When a defendant files a notice of an insanity defense, O.C.G.A. § 17-7-130.1 requires the judge to appoint at least one psychiatrist or licensed psychologist to examine the defendant and to testify at trial. Both the prosecution and defense are entitled to cross-examine the court appointed witness and to introduce evidence in rebuttal of the testimony of that witness. Danenberg v. State, 291 Ga. 439 (2012); Tolbert v. State, 260 Ga. 527 (1990).
Justification
The fact that a person's conduct is justified is a defense to prosecution for any crime based on that conduct. The defense of justification can be claimed: 1. When the person's conduct is justified under O.C.G.A. §16-3-21 (Self-defense and defense of a third person), O.C.G.A. §16-3-23 (defense of self or others, or habitation, or property other than habitation), O.C.G.A. §16-3-24 (to prevent or terminate such other's trespass on or other interference with real property other than a habitation or personal property, O.C.G.A.§16-3-25 (entrapment), or O.C.G.A. §16-3-26 (Coercion);
When the person's conduct is in reasonable fulfillment of his duties as a government officer or employee;
When the person's conduct is the reasonable discipline of a minor by his parent or a person in loco parentis;
When the person's conduct is reasonable and is performed in the course of making a lawful arrest;
When the person's conduct is justified for any other reason under the laws of this state; or
In all other instances which stand upon the same footing of reason and justice as those enumerated in this article.
Justification cannot be based upon an assault which has ended. Willis v. State, 316 Ga. App. 258 (2012); Collier v. State, 288 Ga. 756 (2011). The mere fact that the person or persons that assaulted the defendant and are departing could return and continue the assault does not mean the defendant claiming justification is in imminent danger. Cloud v. State, 290 Ga. 193 (2011); Carter v. State, 285 Ga. 565 (2009).
A convicted felon can still raise justification as a defense to possession of a firearm by a convicted felon. State v. Burks, 285 Ga. 281 (2009).
Mistake of Fact
Mistake of fact is a defense to a crime to the extent that the ignorance of some fact negates the existence of the mental state required to establish a material element of the crime. Windhom v. State, 315 Ga. App. 855 (2012); Allen v. State, 290 Ga. 743 (2012); Jones v. State, 263 Ga. 835 (1994; O.C.G.A. § 16-3-5.
Other Dude
A defendant is entitled to introduce relevant and admissible evidence suggesting that another person committed the crime for which the defendant is on trial. Mutazz v. State, 290 Ga. 389 (2012); Dawson v. State, 283 Ga. 315 (2008). The evidence must raise a reasonable inference of the defendant's innocence, and must directly connect the person with the corpus delicti (the body or essence of the crime), or show that the other person has recently committed a crime of the same or similar nature. Ridley v. State, 290 Ga. 798 (2012); Klinect v. State, 269 Ga. 570 (1998).
Evidence that merely casts a suspicion on a third person is not admissible. Heard v. State, S14A0563; Curry v. State, 291 Ga. 446 (2012).
The prosecution can bring a person into the courtroom to be identified in front of the jury to rebut a defense argument that the other person committed the crime. There is no violation of the defendant's right to confront the witnesses against him. Grady v. State, 290 Ga. 166 (2011); Davis v. State, 255 Ga. 598 (1986).
The testimony of a co-defendant who pleads guilty may be of little value to a defendant. This is because once convicted, a defendant who “seeks to exculpate his co-defendant lacks credibility, since he has nothing to lose by testifying untruthfully regarding the alleged innocence” of his co-defendant. Silvers v. State, 278 Ga. 45 (2004).