The trial of a criminal case begins with trial preparation. Trial preparation comes from the moment an attorney meets his client or a prosecutor gets their case. Which witnesses to call and which evidence is absolutely necessary for the prosecution or defense of the case are questions that should be answered early on long before the attorney is asked to announce ready for trial at a trial calendar. Prior to trial, a defendant is entitled to rely upon his lawyer investigating the facts, circumstances, pleadings and laws involved in the case and then offering an informed opinion as to what plea should be entered. Johnson v. State, 289 Ga. 532 (2011); Cammer v. Walker, 290 Ga. 251 (2011). The attorney has an obligation to make reasonable investigation or to make a reasonable decision that makes a particular investigation unnecessary. Barker v. Barrow, 290 Ga. 711 (2012).
Standard trial preparation includes interviewing witnesses for both sides, running the criminal histories of the witnesses for the opposing side, obtaining transcripts of all prior court proceedings relevant to the trial of the case, obtaining witness convictions for impeachment, and preparing jury selection questions, an opening statement, examination questions, and a closing argument. The attorney can also subpoena any documents or records necessary for adequate trial preparation. The attorney can ask the judge for a court order authorizing the release of certain records that might not otherwise be obtainable. The attorney should also determine which laws apply to the case and be prepared to submit written proposed jury instructions to the judge at the beginning of trial. Uniform Superior Court Rule 10.3.
The defense should also determine whether the defendant will be testifying during the trial of the case. Finally, the attorney should determine if the defendant is a recidivist for sentencing purposes, and if so, are the earlier convictions valid and unchallengeable.
Witness criminal histories are obtained through the Georgia Bureau of Investigation, Criminal History Division, P.O. Box 370748, Decatur, Georgia 30037-0748, 404 -244-2639. The State does not have to provide the defense with the criminal histories of its witnesses. Ashmid v. State, 316 Ga. App. 550 (2012). O.C.G.A. § 35-3-34 (a)(2) provides that the Georgia Bureau of Investigation shall make criminal history records of the defendant or witnesses in a criminal action available to counsel for the defendant upon receipt of a written request from the defendant's counsel. If the defendant does not receive the witness' name and date of birth needed to obtain the criminal history, defense counsel should request a continuance. State v. Dickerson, 273 Ga. 408 (2001).
Transcripts are obtained through the court reporter for a fee. If the defendant is indigent, his attorney can ask the judge to have the government pay the cost for the transcript.
Witnesses
The decision of which witnesses to call is left to the attorney after consultation with the defendant. Hendricks v. State, 290 Ga. 238 (2011); Smiley v.
State, 288 Ga. 635 (2011). The Sixth Amendment to the U.S. Constitution and Article I, Sec. I, Para. XIV of the Georgia Constitution guarantee a Georgia criminal defendant the right to compulsory process for obtaining witnesses in his defense. "Criminal defendants have the right to the government's assistance in compelling the attendance of favorable witnesses at trial and the right to put before a jury evidence that might influence the determination of guilt." Pennsylvania v. Ritchie, 480 U.S. 39 (1987).
In order to ensure the attendance of a witness, the witness should be placed under subpoena. The defendant cannot rely upon the State to summon a witness when the State had subpoenaed but chose not to call as a witness. Hill v. State, 291 Ga. 60 (2012); Todd v. State, 243 Ga. 539 (1979). Subpoenas can be obtained from the clerk of court where the case is pending. O.C.G.A. § 24-13-22. The clerk will issue a subpoena signed and sealed but otherwise blank. The attorney requesting the subpoena will then fill it out before serving it on a witness. O.C.G.A. § 24-10- 20; O.C.G.A. § 24-13-22. The subpoena may then be served anywhere in the state and by anyone over 18 years of age. O.C.G.A. § 24-10-21; O.C.G.A. § 24- 13-24. The person serving the subpoena can then prove that it was served by filing a return or endorsement on a copy of the subpoena indicating it was served. Subpoenas may also be served by registered or certified mail, and the return receipt will constitute proof of service. O.C.G.A. § 24-10-23; O.C.G.A. § 24-13-24. A witness is entitled to a $25.00 fee plus mileage of 20 cents per mile for traveling expenses. O.C.G.A. § 24-10-24; O.C.G.A. § 24-13-25 (.45 cents per mile).
If the witness fails to honor the subpoena the party that served the subpoena can seek to enforce the subpoena by attachment for contempt, a fine not to exceed $300.00 and imprisonment not to exceed 20 days. Before a witness can be convicted of contempt for failure to appear as a witness, it must be shown that the subpoena was served upon the witness by a means authorized by law. The witness is also entitled to reasonable notice of the charge of contempt, an opportunity to retain counsel, call witnesses, and present evidence to defend against the charge. Apoian v. State, 313 Ga. App. 800 (2012). The judge has to consider whether the subpoena was served within a reasonable time. A reasonable time has to be at least 24 hours before the required testimony. The judge can also grant a continuance. If the subpoena was issued blank, a return should be filed at least six hours before the testimony is required in order to be in a legal position to ask for a continuance. O.C.G.A. § 24-10-25; O.C.G.A. § 24- 13-26.
A witness can be compelled to bring certain documents to court by serving the witness with a subpoena for the production of documentary evidence. Subpoenas for the production of documentary evidence are also obtained from the clerk of court. The person who received the subpoena can file a motion asking the judge to quash or modify the subpoena if complying with the subpoena would be unreasonable or oppressive. O.C.G.A. § 24-10-22; O.C.G.A. § 24-13-23.
A witness cannot be arrested on any civil process while attending court under subpoena or while going to or returning from court. Any officer who arrests a witness in those circumstances after being shown the subpoena will be liable for false imprisonment. O.C.G.A. § 24-13-1; O.C.G.A. § 24-13-1.
If a defendant wishes to call as a witness someone who is in a prison or county jail, the defense should make a motion asking the judge for a production order to produce the inmate. O.C.G.A. § 24-10-60; O.C.G.A. § 24-13-60. The motion should specify that the prisoner's presence is required by the ends of justice and that the defendant is financially unable to pay the expenses associated with the production of the prisoner.
Out of State Witnesses
A Georgia court has authority to compel the attendance at a Georgia criminal trial of persons anywhere within Georgia, however, process issued by Georgia courts does not cover out-of-state witnesses. Hughes v. State, 228 Ga. 593 (1972) (Georgia's constitutional provision to a criminal defendant of "compulsory process to obtain the testimony of his own witnesses ... is of no benefit when the witnesses reside beyond the jurisdiction of the courts of this State)." Dimauro v. State, 310 Ga. App. 526 (2011).
The Uniform Act to Secure the Attendance of Witnesses from Without the State in Criminal Proceedings, "is intended to provide a means for a state court to compel the attendance of out-of-state witnesses at criminal proceedings." Dimauro v. State, 310 Ga. App. 526 (2011).
Georgia's version of the Uniform Act, O.C.G.A. § 24-10-90 through O.C.G.A. § 24-10-97 is the statutory means by which a witness living in a state other than Georgia can be compelled to attend and testify at a criminal proceeding in Georgia, and a witness living in Georgia can be compelled to attend and testify at a criminal proceeding in another state. O.C.G.A. § 24-13-90 through O.C.G.A. § 24-13-97. While the statute speaks only to securing the attendance of an out-of-state witness, the scope of the statute has been interpreted in Georgia and several other states to authorize issuance of a summons that requires the out-of-state witness to bring items or documents with the witness. Yeary v. State, 289 Ga. 394 (2011); French v. State, 288 Ga. App. 775
(2007).
"For a witness from another state to be summoned to testify in this state he must be a necessary and material witness." Chesser v. State, 168 Ga. App. 195 (1983). A material witness is one who can testify about matters having some logical connection with the facts of the case. Cronkite v. State, A12A0671. Moreover, a party requesting the presence of an out-of-state witness does not have an absolute right to obtain the witness. The law requires presentation of sufficient facts to enable both the judge in the demanding state and the judge in the state to which the request is directed to determine whether the witness should be compelled to travel to a trial in a foreign jurisdiction. The party seeking the witness has the burden of showing that the witness sought is a necessary and material witness to the case. The decision whether to grant the subpoena is within the judge's sound discretion. Davenport v. State, 289 Ga. App. 399 (2011); Holowiak v. State, 308 Ga. App. 887 (2011).
Motions for Continuance
If an attorney is not prepared to try a case, a motion for continuance should be made. Motions for continuance seeking additional time to prepare for trial are left to the sound discretion of the judge. Williams v. State, A12A1623. The judge's ruling on a motion for continuance will be upheld on appeal unless there was a clear abuse of discretion. Eskew v. State 309 Ga. App. 44 (2011); O.C.G.A. § 17-8-22; Loyd v. State, 288 Ga. 481 (2011).
With a trial at hand, a defendant may realize that he is not satisfied with his current lawyer. Motions for continuance to hire or substitute counsel are also addressed to the sound discretion of the judge, and the judge's ruling will not be overturned unless there was an abuse of discretion. Tyner v. State, 313 Ga. App. 557 (2012). In addition, the judge may consider the conduct of a defendant in order to prevent the defendant from using the discharge and employment of counsel as a delay tactic. Jordan v. State, 247 Ga. App. 551 (2001). The party requesting the continuance must show that he exercised due diligence. Coats v. State, 303 Ga. App. 818 (2010); Bearden v. State, 241 Ga. App. 842 (2000). Also, if a new lawyer is hired before trial, the lawyer should be ready to try the case. “There is no fixed rule as to the number of days that should, of right, be allowed counsel for a defendant after his employment or appointment in a criminal case to prepare the case for trial.” White v. State, 304 Ga. App. 158 (2010). Mere shortness of time does not by itself show a denial of the rights of the defendant, and mere shortness of time will not reflect an abuse of the judge's discretion in denying a continuance, where the case is not complex and is without a large number of intricate defenses. Gibbs v. State, 213 Ga. App. 117 (1994);
Presley v. State, 307 Ga. App. 528 (2011).
Motions for continuance based on the unavailability of a witness are covered by O.C.G.A. § 17-8-25. That law provides that in all requests for continuance upon the ground of the absence of a witness, it must be shown to the judge that the witness is absent; that he has been subpoenaed; that he does not reside more than 100 miles from the place of trial; that his testimony is material; that the witness is not absent by permission of the lawyer; that the lawyer expects he will be able to obtain the witness' testimony at the next term of court; that the request is not made for the purposes of delay; and the facts the lawyer expects to be proved by the absent witness. Each of the requirements set forth in
O.C.G.A. § 17-8-25 must be met before an appellate court may review the exercise of the judge's discretion in denying a motion for continuance based upon the absence of a witness. Brown v. State, 304 Ga. App. 168 (2010).
Trial preparation is important because during the actual trial, it will be difficult for the attorney and defendant to talk during witness testimony or while the judge is addressing an issue.