It is error for the judge in any criminal case, during its progress or in his instructions to the jury, to express or suggest his opinion as to what has or has not been proved or as to the guilt of the accused. O.C.G.A. § 17-8-57; Weems v. State, S23A1179 (January 17, 2024). This includes referring to a defendant's possible appeal. Gibson v. State, 288 Ga. 617 (2011); Faust v. State, 222 Ga. 27 (1966). The purpose of this rule is in part to prevent the jury from being influenced by any disclosure of the judge's opinion regarding the credibility of the witnesses. Murphy v. State, 290 Ga. 459 (2012).
O.C.G.A. § 17-8-57 does not apply to discussions between the judge and the attorneys regarding the admission of evidence. Adams v. State, 312 Ga. App. 570 (2011). Also, comments by the judge giving a reason for his ruling on the admissibility of evidence are not an expression of opinion or comment on the evidence. Butler v. State, 290 Ga. 412 (2012); Ridley v. State 290 Ga. 798
(2012).
The judge also should not engage in ex parte (both the State and defense are not present) communications. Such communications are presumptively harmful. In the Interest of D.D., 310 Ga. App. 329 (2011).
To violate O.C.G.A. § 17-8-57 the comments must focus on a disputed issue of fact. Bugh v. State, A12A0918. A violation of O.C.G.A. § 17-8-57 is always plain error and the failure of counsel to object will not prevent review on appeal. State v. Garner, 286 Ga. 633 (2010).