The presentation of evidence begins after opening statements. The prosecution has the burden of proof and presents its evidence first. The State is not required to produce any physical evidence. Roberts v. State, 305 Ga. 257, 259 (2019) ; Plez v. State, 300 Ga. 505 (2017) (“Although the State is required to prove its case with competent evidence, there is no requirement that it prove its case with any particular sort of evidence.”); Bradley v. State, S24A0010 ( January 17, 2024).
Prior to witness testimony, either side can invoke the rule of sequestration. O.C.G.A. § 24-9-61; O.C.G.A. § 24-6-615. The rule means that witnesses will be examined out of the hearing of the other witnesses. The purpose of the rule is to prevent a witness who has not testified from having his testimony affected by another witness. Pennington v. State, 313 Ga. App. 764 (2012). The judge can make an exception to the rule of sequestration and allow the State to have the lead investigator remain in the courtroom to assist in the presentation of the State's case. Mauldin v. State, 290 Ga. 574 (2012). The State must show that the investigator's presence is necessary for the orderly presentation of evidence. Mitchell v. State, 290 Ga. 490 (2012); Dockery v. State, 287 Ga. 275 (2010); O.C.G.A. § 24-6-615. The investigator can be allowed to testify after other witnesses. Holloman v. State, 291 Ga. 338 (2012). Further, pursuant to the new evidence code effective January 1, 2013, the victim of a crime shall be exempt from the rule provided, however, that the judge shall require that the victim be scheduled to testify as early as practical in the case. A violation of the rule does not make the witness' testimony inadmissible, but goes only to the credibility of the witness who heard the earlier witness' testimony. Hawkins v. State, 316 Ga. App. 415 (2012; Rakestrau v. State, 278 Ga. 872 (2005).
The State calls a witness to the stand and the witness is placed under oath.
O.C.G.A. § 24-6-603. It will be presumed unless there is proof otherwise that a lawful oath was administered. Grovner v. State, 317 Ga. App. 623 (2012). The State then questions the witness through a process called direct examination. During direct examination the attorney is generally not permitted to ask leading questions. O.C.G.A. § 24-6-611. A leading question is a question that suggests the answer that is desired. Milner v. State, 258 Ga. App. 425 (2002). Under certain circumstances such as child or hostile witnesses the judge can allow the prosecutor to ask leading questions of its own witness. Perkins v. State, 226 Ga. App. 613 (1997).
The privilege against self-incrimination allows a witness to avoid answering questions that might support a conviction or create a real and appreciable danger of establishing a link in the chain of evidence needed to prosecute. In re Tidwell, 279 Ga. App. 734 (2006). When a witness invokes the 5th Amendment privilege the judge must first determine if the answers could incriminate the witness. If so, then the decision whether it might must be left to the witness. If the answers would not incriminate the witness, he must testify or be subject to contempt. Whitman v. State, 316 Ga. App. 665 (2012).
The judge also has the right to question the witness for the purpose of developing fully the truth of the case. Dunn v. State,325 Ga. App. 888 (2014); Chambers v. State, 313 Ga. App. 39 (2011); Price v. State, 310 Ga. App. 132 (2011). This right should be exercised sparingly because a judge is prohibited from expressing or suggesting his opinion as to what has or has not been proved. Walker v. State, 267 Ga. App. 155 (2004). The extent of the examination by the judge is a matter within the judge's discretion Bush v. State, A12A0918; Jackson v. State, 251 Ga. App. 171 (2001); Cotton v. State 308 Ga. App. 645 (2011).
A juror may not ask questions of a witness. However, this rule has been called into question. Allen v. State, 286 Ga. 392 (2010); Cotton v. State 308 Ga. App. 645 (2011).