Notable Opinions: May 6, 2019

The Court issued two notable opinions today. The first deals with the development of Georgia's new federal-style evidence code, and the second addresses whether police must administer Miranda-style warnings before asking suspected drunk drivers to submit to breath tests.


The State v. Orr (S18G0994)

The State v. Orr continues the development of evidence law in Georgia following the adoption of the new federal style evidence rules in 2013. Specifically, Orr abrogates a previously categorical rule that pre-arrest silence ("failure to come forward") is always inadmissible; after Orr, trial courts must evaluate these situations under the case-by-case prejudice vs. probativity analysis laid out in OCGA 24-3-403.

Orr involved a domestic violence/simple battery charge where the defendant claimed at trial that he had only ever hit the victim in self defense. The prosecution elicited testimony that the defendant had never (including on the night in question) told law enforcement about the victim assaulting him, and had argued in closing that his silence on the subject should be understood as belying his testimony that he acted in self defense.

The Court of Appeals upheld the trial court's grant of a motion for new trial, noting that until the Georgia Supreme Court denounced the rule from Mallory v. State, 261 Ga. 625 (1991), its holding bound lower courts to deem the evidence and argument in Orr's trial inadmissible. See State v. Orr, 345 Ga. App. 74. 78-79 (2018) (noting cases in which the Supreme Court had "express[ed] no opinion about the continuing validity of Mallory under the new evidence code).

Writing for the Court, Justice Nahmias made clear that "there is no doubt that [the Mallory rule] was abrogated by the new evidence code." See Case No. S18G0994 at *16. The Mallory Court said that "a comment upon a defendant's silence or failure to come forward is far more prejudicial than probative, and therefore . . . such a comment will not be allowed even where the defendant has not received Miranda Warnings and . . . takes the stand in his own defense." See 261 Ga. at 630. The new evidence code, however, "created a new evidence world in this state," S18G0994 at *17, and is largely derivative of the federal rules of evidence. Georgia courts may only look to the substantive provisions of the prior evidence rules when those rules are not displaced by the new evidence code. See generally State v. Almanza, 304 Ga. 553 (2018). Under the new rules, the provision for exclusion of evidence based on the prejudice vs. probativity analysis is 24-4-403 ("rule 403"), which expressly provides for a balancing test, not systematic exclusion. Thus, Mallory's flat exclusion of this evidence is contrary to an on-point rule of the new code, and is therefore no longer good law. See also State v. Jones, 297 Ga. 156, 158 (2018).

Justice Nahmias emphasized the decision does not foreclose other avenues for keeping such evidence out, but instead "[t]he point is that careful attention must now be paid to the specific evidence offered and the specific theory and rules the proponent . . . contends authorize its admission." S18G0994 at *29. Indeed, in many cases rule 403 will provide a basis for exclusion, since "in most circumstances silence is so ambiguous that it is of little probative force." Id. at *30, citing United States v. Hale, 422 U.S. 422 U.S. 171, 176 (1975).

It is worth noting as a practice point that in footnote 6 of the opinion the court clarified it did not decide whether Mallory still applied to cases that had been in the appellate pipeline before the new evidence code came into effect.


The full opinion can be found at: https://www.gasupreme.us/wp-content/uploads/2019/05/s18g0994_sub.pdf


The State v. Turnquest 

Turnquest stands for the proposition that neither the Georgia Constitution nor OCGA 24-5-506, a Georgia statute prohibiting self-incrimination, require Miranda-style warnings before police ask people arrested for DUI to submit to a breath test. See The State v. Turnquest, S19A0157.

In Olevik .v. State, 302 Ga. 228, 235-246 (2017) the Court held that the Georgia Constitution offers broader protection against self incrimination than the Federal Constitution. Whereas the Federal Constitution protects only against the compulsion of incriminating testimony, the Georgia Constitution forbids the compulsion of incriminating acts as well. Shortly after, the Court held that the exercise of that right against self-incrimination cannot be offered into evidence by the state as proof of guilt. Elliot v. State, 824 S.E.2d 265 (2019). Turnquest clarifies, however, that officers need not expressly advice suspected drunk drivers of their right to take a breath test before asking them to do so.

Because the Federal Constitution's self-incrimination provision only deals with testimony, Miranda v. Arizona, 384 U.S. 436 (1966), it does not apply to incriminating acts; i.e. since the 5th amendment only covers speech, the Miranda warnings are only required when police seek to elicit incriminating statements (submitting to a breath test is an act not a statement). Thus, the question becomes whether any provision of Georgia law requires such a warning.

Writing for the Court, Justice Peterson rejected arguments that Miranda-style warnings were required under the self-incrimination provision, Ga. Const. Art. 1 § 1, ¶16, the due process provision Ga. Const. Art. 1 § 1, ¶1, and Georgia's statutory prohibition on compelled self incrimination, O.C.G.A. § 24-5-506. As to constitutional self-incrimination, Justice Peterson explained for the Court that to the extent Miranda could be viewed as an interpretation of any federal constitutional provision, it was not based on any language history or context that was shared by the Georgia provision. Further, nothing in the language, history, or context of paragraph 16 of the Georgia Constitution (nor, for that matter, the statutory self-incrimination provision) indicates that a suspect must be warned of his right against compelled self incrimination. The failure to apprise a suspect of their rights does not, Justice Peterson wrote, render subsequent incriminating acts "compelled," neither in the the common sense of the word nor as reflected by the common law history enshrined in the Georgia Constitution.

Similarly, Justice Peterson pointed out that nothing in the text or history of the Georgia's due process right requires police to inform a person of their right against self-incrimination, and even the fact that Miranda changed the nature of the Federal right does not mean it similarly changed the scope of the Georgia right. Even if it did, there is no United States Supreme Court decision indicating the Federal Due Process right requires Miranda warnings before a breath test.

The decision in Turnquest overrules Price v. State, 269 Ga. 222 (1998) (holding the failure to give Miranda warnings renders evidence regarding field sobriety tests inadmissible).

The full opinion can be found at: https://www.gasupreme.us/wp-content/uploads/2019/05/s19a0157.pdf


Other Cases
The Court also upheld murder convictions and life sentences in the following cases:

S19A0068.  JONES v. THE STATE
S19A0101.  JONES v. THE STATE
S19A0276.  WILLIAMSON v. THE STATE
S19A0346.  WILLIAMS v. THE STATE
S19A0351, S19A0352.  HANEY V STATE (two cases)