Archive for category: Blog

Technology makes it easier than ever to hit “record” on a conversation, whether it’s a phone call, a meeting, or even a casual chat at a restaurant. But in Georgia, doing so without understanding the law could land you in hot water. The state’s eavesdropping law, found in O.C.G.A. § 16-11-62, sets clear limits on when you can record a conversation and when doing so crosses the line into criminal conduct.

Georgia is what’s known as a “one-party consent” state. That means that as long as one person involved in the conversation consents to the recording, it is generally legal to record the communication—whether it’s over the phone or in person. So, if you’re having a phone call and you decide to record it, that’s typically lawful, even if the other person has no idea.

This rule, however, only applies when you are actually a participant in the conversation. If you’re not part of the communication, you’re not protected by the one-party consent rule. However, it remains lawful to record publicly held conversations, even if you are not a party to the conversation. But, that’s where Georgia’s eavesdropping laws come in.

O.C.G.A. § 16-11-62 makes it a crime to intentionally and secretly observe, photograph, or record another person under certain conditions where they have a reasonable expectation of privacy. This includes:

• Recording private conversations in a home, hotel room, or private office.
• Recording someone in a dressing room or restroom.
• Intercepting phone calls or electronic communications that you’re not a party to.

Under this law, it is illegal to use any device to overhear, record, or transmit the private conversation of others without consent, unless a specific legal exception applies. Violations are punishable by fines or even imprisonment of up to 5 years, depending on the nature and circumstances of the offense.

The phrase “reasonable expectation of privacy” is key here. If someone is having a loud conversation in a public place, like yelling on a cell phone at a bus stop, there’s probably no expectation of privacy. But if that same conversation happens behind closed doors in their home or office, the expectation is much stronger.

Georgia courts look at the context of the communication—who was involved, where it took place, and whether the participants could reasonably expect not to be overheard or recorded. If that expectation is present, secretly recording the conversation could be illegal, even if done with innocent intentions.

Under O.C.G.A. § 16-11-67, recordings made in violation of Georgia’s eavesdropping or wiretapping statutes are generally inadmissible in any civil or criminal trial. That means if someone illegally records a conversation and tries to hand it over to the police, prosecutors may be prohibited from using it as evidence.

There are limited exceptions. In some cases, courts have allowed illegally obtained recordings for impeachment purposes (i.e., to challenge the credibility of a witness), but not as direct proof of guilt. This creates a significant risk: if police or prosecutors rely on illegally obtained recordings to build their case, they may jeopardize the entire prosecution.

Likewise, law enforcement in Georgia cannot simply record your private communications without a warrant. If they want to legally intercept a phone call or place someone under surveillance, they must obtain a wiretap warrant, which requires judicial approval based on probable cause. Any evidence collected without such authorization may be thrown out in court as a violation of the Fourth Amendment and state privacy laws.

Georgia law tries to strike a balance between the right to document important conversations and the right to privacy. You are allowed to record a conversation if you are part of it—but you cannot secretly record others without their knowledge when they have a reasonable expectation of privacy. Doing so could not only result in criminal charges for you, but also make the recording inadmissible in any legal proceeding.

If you’re ever unsure whether a recording is legal, consult an attorney before pressing record. The line between lawful and unlawful eavesdropping can be blurry—and crossing it can have serious consequences.

 

Possession is a term we see regularly in our judicial system. In the criminal defense world, it is often in conjunction with guns, drugs, and the like.

Under Georgia law, “possession” is generally defined as having control, ownership, or the right to control an item, either directly or indirectly. Georgia recognizes two types of possession: actual possession and constructive possession. “Actual possession” occurs when a person has direct physical control over an object. “Constructive possession” occurs when a person, though not in physical contact with an item, knowingly has both the power and intention to exercise control over it. Let’s go through two different hypotheticals.

Hypothetical 1) Possession of a Firearm

Example A – Actual Possession:

If an individual is found with a firearm in their waistband during a traffic stop, they are in actual possession of the firearm.

Example B – Constructive Possession:

If a firearm is found in the glove compartment of a car that a person is driving, and they admit knowing it was there and having access to it, this may constitute constructive possession — even though they weren’t physically holding it.

Key Point: Constructive possession requires knowledge and control.

 

Hypothetical 2) Possession of Narcotics

Example A – Actual Possession:

If someone is caught with a bag of cocaine in their jacket pocket, that’s actual possession.

Example B – Constructive Possession:

If illegal drugs are found in a shared apartment, hidden in a drawer in a common area, a resident who knew the drugs were there and had control over the space may be charged with constructive possession, depending on the facts.

Important Consideration: In drug cases, prosecutors must prove beyond a reasonable doubt that the accused knowingly possessed the drugs — not just that they were nearby.

 

Here’s a helpful cheat sheet:

Type of Possession	Definition	Example (Firearm)	Example (Drugs)
Actual Possession	Direct physical control	Gun in waistband	Drugs in pocket
Constructive Possession	Control without physical contact, but with knowledge and access	Gun in glovebox of driver’s car	Drugs hidden in a room the person controls

If you’re charged with possession of any sort, give our office a call today to talk to one of our experienced attorneys at (404)581-0999.

 

A new bill introduced in Georgia’s statehouse aims to protect artistic expression in the courtroom, specifically targeting rap music and other forms of creative work. House Bill 237, introduced during the 2025-2026 legislative session, seeks to prevent rap lyrics—or any other artistic expression such as music, dance, performance art, poetry, literature, film, and visual art—from being used as evidence in criminal trials, unless certain conditions are met.

Under this proposed law, in order for rap lyrics or any other form of artistic expression to be admissible at trial, prosecutors must meet four specific requirements:

1. Intent: The defendant must have intended to adopt the literal meaning of the artistic work as their own statement or belief.
2. Factual Nexus: There must be a clear connection between the artwork and the specific facts of the alleged crime.
3. Relevance: The artwork must be relevant to an issue that is in dispute during the trial.
4. Probative Value: The artwork must have distinct probative value that cannot be demonstrated by other admissible evidence.

Prosecutors must prove all four of these elements by clear and convincing evidence in a pre-trial hearing. If they fail to do so, the artwork cannot be used as evidence in the trial.

The bill’s main goal is to protect the First Amendment rights of individuals, ensuring that creative works are not unfairly used against defendants in criminal cases. The bill, which has gained bipartisan support, was introduced by State Representative Kasey Carpenter.

As the bill moves forward, it highlights the ongoing conversation about the intersection of art, expression, and the law. If passed, this legislation could have significant implications for how creative works are treated in Georgia courtrooms.

 

By W. Scott Smith, P.C. – Criminal Defense Attorneys

If you or someone you love has ever faced criminal charges, you’ve probably found yourself asking, “Are prosecutors good people?” As criminal defense attorneys, we hear this question often, and we understand where it comes from. When you or a family member is being prosecuted—especially if you believe you or your loved one is innocent—it can feel like the prosecutor is the enemy, determined to take away your freedom or ruin your future.

The truth, however, is more nuanced. The answer is yes: prosecutors are, by and large, good people. But it’s also understandable why that’s hard to see in the middle of a criminal case.

The system is designed to be adversarial.  In an adversarial legal system, the prosecutor is inherently adversarial because their role is to build a case against the defendant and present it to the court, aiming to prove guilt beyond a reasonable doubt.

Where the System Fails

Some critics argue that the adversarial system can prioritize winning over truth, and that resource disparities between prosecution and defense can create unfair advantages. It is true, we all want to win.  It is human nature.

Why Prosecutors May Seem Unsympathetic

Prosecutors have a tough job: their role is to enforce the law and seek justice, which sometimes means pursuing convictions in cases where the circumstances are complex, or where the accused is facing significant hardship. In high-profile cases, like the prosecution of Jeffrey Epstein and Ghislaine Maxwell, the public often sees prosecutors as relentless or even ruthless—sometimes firing or publicly criticizing those who push for more transparency or leniency. This perception can deepen when prosecutors appear unwilling to consider factors outside of the defendant’s immediate actions.

Tough prosecutors are often those who, intentionally or not, show less empathy for the many outside factors that can contribute to a person ending up in the criminal justice system. As defense attorneys, we see every day that criminal cases are rarely black and white. Many defendants are shaped by circumstances far beyond their control.

Factors That Contribute to Criminal Behavior

To truly understand the people in the criminal justice system—defendants and prosecutors alike—it’s important to look at the bigger picture:

Socioeconomic Factors

• Poverty and Economic Hardship: Many individuals turn to crime out of desperation to meet basic needs. Lack of financial resources can create a sense of hopelessness that increases the risk of criminal involvement. Studies consistently find that unemployment is correlated with higher rates of property and violent crime.
• Lack of Educational Opportunities: When people don’t have access to quality education, their opportunities for personal and economic growth are limited. Underfunded schools, high dropout rates, and a lack of extracurricular activities make kids more vulnerable to crime.

Family Environment

• Unstable or Dysfunctional Family Structures: Children raised in homes with neglect, abuse, or parental criminality face a much higher risk of engaging in crime themselves. Insufficient parental support and monitoring can make it even harder for adolescents to stay on the right path.
• Exposure to Violence: Witnessing violence at home or in the community can normalize aggressive behavior and make criminal activity seem like an acceptable way to solve problems.

Neighborhood and Community Factors

• Neighborhood Disadvantage: People living in neighborhoods with high poverty and unemployment have fewer opportunities and resources, making it harder to resist criminal influences.
• Social Disorganization: Weak social ties and a lack of informal social control can lead to higher crime rates.
• Presence of Gangs or Organized Crime: Especially for young people, gangs can provide a sense of belonging, even as they encourage criminal behavior.
• Lack of Access to Support Systems: Without access to healthcare, mental health services, substance abuse treatment, and positive community programs, many people find themselves trapped in cycles of crime and punishment.

Substance Abuse and Addiction

• The Link Between Drugs, Alcohol, and Crime: Substance use can cloud judgment and increase impulsivity, making criminal behavior more likely. Many people with substance use disorders commit crimes simply to support their addictions.

Why Understanding Matters

As criminal defense attorneys at W. Scott Smith, P.C., we believe that recognizing these contributing factors isn’t about excusing crime—it’s about understanding people. Prosecutors are tasked with upholding the law, but sometimes the system doesn’t leave enough room for compassion or individualized consideration.

This is why the work of criminal defense attorneys is so vital. We fight to make sure our clients’ stories are heard and their circumstances understood. We push back when prosecutors overlook the broader context. And we work to ensure that justice means more than just punishment.

Final Thoughts

So, are prosecutors good people? Most are, and many go into their profession because they genuinely want to serve justice and protect the community. But the system can make it hard for even the best prosecutor to see the full humanity of every defendant. If you or someone you love is facing prosecution, you deserve a defense team who will stand up for your rights and help the court see the whole picture.

If you need help, don’t hesitate to contact us at W. Scott Smith, P.C. We’re here to fight for you, every step of the way.

 

If you’re caught driving with a suspended license in Cherokee County, Georgia, the consequences can be severe. Georgia law treats this offense seriously, and penalties escalate with each subsequent violation.

According to Georgia Code §40-5-121, the penalties for driving with a suspended or revoked license depend on the number or prior convictions within the past five years:

• First Offense punishment:
  – No less than 2 days in jail
  – A fine of $500 to $1000
  – You could also be placed on probation
• Second or Third Offense punishment:
  – No less than 10 days in jail
  – A fine of $1000 to $2500
  – You could also be placed on probation
•  Fourth Offense punishment:
  – Considered a felony
  – 1 to 5 years in jail
  – Fines
  – Probation

Driving with a suspended license in Cherokee County, Georgia, is a serious offense with significant legal consequences. If you’re facing charges, consult the qualified lawyers at W. Scott Smith, P.C. to understand your options. Call us at 404-581-0999 for a free consultation.