If a party believes that inadmissible evidence is being offered into evidence, that party must raise an objection. Brown v. State, 310 Ga. App. 835 (2011); Whitehead v. State, 287 Ga. 242 (2010). Otherwise, the issue will be considered waived on appeal. O.C.G.A. § 24-1-103. “In order to raise on appeal an error regarding the admissibility of evidence, the specific ground of objection must be made at the time the evidence is offered, and the failure to do so amounts to a waiver of that specific ground." Fraser v. State, A14A0863; Knight v. State, 311 Ga. App. 367 (2011); Keaton v. State, 311 Ga. App. 14 (2011).
An appeals court is a court for the correction of errors of law committed by the judge where proper objection is made. The appeals courts will not consider objections not raised at trial. Bryant v. State, 288 Ga. 876 (2011). An issue raised by a co- defendant at trial does not preserve the issue for another co-defendant who does not join in the objection. Cox v. State, 242 Ga. App. 334 (2000). If a timely objection is made, the lawyer does not have to renew the objection at the end of the case. Sledge v. State, 312 Ga. App. 97 (2011).
Failing to object to evidence which is introduced after a pre-trial motion concerning its admissibility does not waive the grounds for the motion to suppress. However, affirmatively stating that there is no objection in effect concedes the point and waives the grounds of the motion to suppress. Lightsey v. State, 316 Ga. App. 573 (2012); Williams v. State, 314 Ga. App. 840 (2012); Monroe v. State, 272 Ga. 201 (2000).
The attorney must also make sure there is a record of the objection. During trial, jury selection, opening statements, and closing arguments may not be transcribed by the court reporter. If there is an objection during any of these parts of a trial it is important that the objection be put on the record. Maxwell v. State, 267 Ga. App. 227 (2004 ); Jupiter v. State, 308 Ga. App. 386 (2011). Further, where the error alleged is that certain evidence has been wrongfully excluded (not allowed into evidence) there must have been a proffer or offer of proof as to what the evidence would have been so that both the judge and the appellate court can know whether the evidence really exists. Gawlak v. State, 310 Ga. App. 757 (2011). The record must show what questions would have been asked or what answers were expected of the witness. French v. State, 288 Ga. App. 775 (2007); Holder v. State, 242 Ga. App. 479 (2000). In the absence of such a proffer, the error is so incomplete as to prevent its consideration on appeal. Miceli v. State, 308 Ga. App. 225 (2011); See Appendix A, HB 24, O.C.G.A. § 24-1-103.
An attorney who seeks to have the judge give an instruction to the jury limiting its consideration of certain evidence must request the limiting instruction at the time the evidence is offered. The attorney cannot rely upon an earlier request for a limiting instruction that was granted at the time that the evidence was determined to be admissible. Smith v. State, 290 Ga. 768 (2012).
Sometimes an attorney may believe that the harm that has been done cannot be repaired in a way to allow the trial to be fair. Attorneys refer to this as a situation where you cannot un-ring the bell. The Georgia Supreme Court has recognized that “jurors, like other human beings, are unconsciously too much affected by strong mental impressions for these impressions to be nicely segregated from the mass of evidence.” Murphy v. State, 290 Ga. 459 (2012); Chumley v. State, 282 Ga. 855 (2008). In these circumstances the party can move for a mistrial.
A defendant generally must preserve the issue at trial. To do that, the defendant first must make a motion at the earliest opportunity in the trial court. See Thomas v. State, 310 Ga. 579, 581- 582 (2) (853 SE2d 111) (2020); Bates v. State, S23A0881 (December 19, 2023). A motion for a mistrial “must be promptly made as soon as the party is aware of the matter giving rise to the motion,” so “[i]f the defendant did not make a contemporaneous motion for a mistrial at the time the defendant became aware of the matter giving rise to the motion, then the defendant has waived review of this issue on appeal.” Neloms v. State, 313 Ga. 781, 785 (2) (873 SE2d 125) (2022); Lee v. State, S23A1097 (December 19, 2023); Hartsfield v. State, 294 Ga. 883, 886 (2) (757 SE2d 90) (2014); Clements v. State, S23A0857 (December 19, 2023). If there is no contemporaneous objection, a mistrial motion is untimely and will not be considered on appeal. Tennyson v. State, 282 Ga. 92, 94 (4) (646 SE2d 219) (2007) Cowart v. State, 294 Ga. 333, 336-337 (3) (751 SE2d 399) (2013) Jivens v. State, S23A1078 (December 19, 2023).
Whether to grant a mistrial is a matter within the discretion of the judge, and that discretion will not be interfered with on appeal unless it is apparent that a mistrial was essential to the preservation of the right to a fair trial. Warren v State, 314 Ga. App. 477 (2012); Belton v. State, 270 Ga. 671 (1999). The judge has the discretion to decide whether a mistrial is the only corrective measure to take or whether proper curative instructions withdrawing the testimony from the jury's consideration can correct the prejudicial effect. Smith v. State, 288 Ga. 348 (2010). The party who requested the mistrial must object to the curative instruction or renew the motion for a mistrial after the curative instruction. Warren v. State, 314 Ga. App. 477 (2012); Maudlin v. State, 313 Ga. App. 228 (2011).