How Your Defense Attorney Can Use Georgia Rules of Evidence Rule 403 to Keep Out Prejudicial Evidence


When a person is charged with a crime, the State will often try to present evidence of other bad acts performed by the defendant or evidence that is intended to inflame the passions of the jury. When wielded correctly, Rule 403 gives your defense attorney a weapon to fight back with.

Rule 403 states that “[r]elevant evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence.” This simply means that a judge may decide that certain evidence may not be presented to the jury if it is likely to prejudice the jury against the defendant, is a waste of time, or is unnecessarily cumulative (an example of unnecessarily cumulative evidence would be prosecutors showing a music video where the defendant points guns and claiming it is being shown for identification purposes when other witnesses had already identified the defendant in surveillance footage from the incident) . A 2020 Georgia Supreme Court case says it perfectly: “the major function of rule governing exclusion of relevant evidence due to prejudice, confusion, or waste of time is to exclude matters of scant or cumulative probative force, dragged in by the heels for the sake of its prejudicial effect.” Jernigan v. State, 357 Ga.App. 415.

A recent example of Rule 403 being used effectively was in the Ross Harris case from 2016. Ross Harris was charged with intentionally leaving his son in the hot car where he ultimately died. The State presented evidence of text messages Harris had sent to underage girls as well as large amounts of evidence of Harris’ infidelity. Although Harris was convicted of sex crimes and murder, his attorneys used Rule 403 at his appeal to show that the two crimes (sexual texts with underage girls and murder) should have been tried separately. While the text messages proved he was guilty of the sex crimes, they did nothing to prove Harris’ intent when he walked away from his car and were highly prejudicial when the jury considered the murder charge.

If you find yourself facing serious charges, it is important that you hire a lawyer that understands the rules of evidence and will use every tool available to prevent the jury from hearing prejudicial evidence. The lawyers at W. Scott Smith will explore every aspect of your case and fight for you in the courtroom to give you the best chance of hearing “Not Guilty”. If you face serious charges like rape, murder, child molestation, drug trafficking, or aggravated assault in Fulton, Cobb, Dekalb, Gwinnett, Douglas, Rockdale, or Barrow counties, call our office at 404-581-0999 for a free consultation.

How the Fourth Amendment Could Protect You in Drug Cases

The Fourth Amendment provides safeguards for individuals during their interactions with law enforcement. If evidence is discovered during an interaction that violates an individual’s Fourth Amendment rights, that evidence cannot be used against the individual in court.

This issue commonly arises in cases where an individual is pulled over for a traffic violation and is subsequently charged with possessing drugs. For example, if an officer pulls you over for crossing the solid line, they are not allowed to search your car for drugs if you do not consent to the search. While there are certain exceptions in place to ensure officer safety and to prevent the destruction of evidence (such as patting down an individual on the outside of their clothing to search for weapons, for example), the officer cannot freely look through your pockets or inside your vehicle.

Understanding Fourth Amendment protections is complex, and it is important that you hire an experienced attorney if you are charged with a serious offense like possession of drugs, possession of drugs with intent to distribute, or trafficking drugs. The lawyers at W. Scott Smith, PC will work diligently to discover any Fourth Amendment violations in your case and to keep the harmful evidence out of court. If you are charged with one of these serious offenses in Clayton, Cobb, Dekalb, Fulton, Gwinnett, or Fayette Counties, call our office at 404-581-0999 today for a free consultation.

How Other Acts Evidence Can Benefit a Criminal Defendant

The State often uses “other acts” evidence to introduce other bad things that a defendant has done to a jury. While the State cannot bring this evidence in to show that the defendant has a bad character, they can bring the evidence in if they can convince a judge that they are doing so to prove something like motive, intent, knowledge, identity, plan, or purpose. These exceptions are all part of the Georgia Rules of Evidence and can be found in O.C.G.A § 24-4-404(b) (often referred to as 404(b) evidence).

But the defense can use these powerful exceptions to their advantage to introduce other bad acts of an alleged victim to the jury (often call reverse 404(b) evidence). Here is an example of how reverse 404(b) evidence could be used to your advantage:

Imagine that you are working in your garage and see a teenager approach your elderly neighbor’s front door. You see the teenager peering in windows and you feel that the teenager is going to harm your elderly neighbor. You approach the teenager, with your firearm by your side, and ask them to leave the property. The teenager reports your behavior to the police and you suddenly find yourself facing criminal charges.

Luckily, you have hired one of the lawyers at W. Scott Smith who begins thoroughly investigating your case and discovers that only two weeks after the incident at your neighbor’s, the teenager is arrested for breaking into another house nearby. By utilizing Rule 404(b) your lawyer is able to introduce this other robbery evidence to a jury to show that the teenager intended to rob your neighbor and that you were justified in approaching the teenager with your firearm.

If you are charged with a serious crime like murder or aggravated assault, it is important that you hire an experienced lawyer who will thoroughly investigate your case and fight to admit any evidence that helps to prove your innocence. If you are charged in Gwinnett, Cobb, Fulton, Dekalb, Clayton, or Newton County, and believe that there is evidence that should be admitted about an alleged victim, call our office at 404-581-0999 today for a free consultation.

When Does a Prosecutor Have to Disclose a Deal Made with a Witness in Exchange for Testimony?

Often, the State will work with co-defendants to offer them a favorable plea deal to testify against another defendant. But, is the prosecutor required to disclose these deals to the other co-defendants or the jury during the trial?  The short answer is found in a 1963 United States Supreme Court case called Brady v. Maryland (373 U.S. 83). The State is required to turn over any evidence that meets four prongs: the evidence must be favorable to the defendant, the defendant must have been unable to obtain the evidence himself, the State must have suppressed the favorable evidence, and, had the evidence been disclosed to the defense, there must have been a reasonable probability that the outcome of the trial would have been different. Williamson v. State, 300 Ga. App. 538 (2009); Brannon v. State, 298 Ga. 601 (2016).

How does this rule apply to statements made by co-defendants in exchange for favorable plea deals?   A co-defendant’s statement could become favorable to a defendant if it calls into question a co-defendant’s credibility. In Byrd v. Owen, 272 Ga. 807 (2000), the Georgia Supreme Court found that the prosecutor was obligated to disclose an immunity agreement it made with its main witness, who was the defendant’s partner in drug trafficking. The Court found that the deal should have been disclosed because, if the defense could have discredited the witness’s testimony (and ultimately shown that he had incentive to lie to get a plea deal), there was a substantial likelihood that the outcome of the trial would have been different. Additional Georgia Supreme Court cases like Schofield v. Palmer, 279 Ga. 848 (2005) tell us that because the reliability of a particular witness may be determinative of guilt or innocence, impeachment evidence, including evidence about any deals or agreements between the State and the witness, falls within the Brady rule, which requires the prosecution to disclose favorable evidence that is material either to guilt or to punishment.

All of this means that if you are charged with a serious crime like murder, armed robbery, or drug offenses, and the State is offering a co-defendant a plea deal in exchange for their testimony against you, they are obligated to disclose that deal. You need an experienced attorney to demand that disclosure and to work diligently to prove that witness unreliable. The lawyers at the Law Office of W. Scott Smith are dedicated to their clients and insist on holding the State accountable to the rules. If you find yourself charged with a serious crime and in need of a lawyer to fight for you, call our office at 404-581-0999 for a free consultation.


Polygraph Evidence in Georgia

Polygraph tests can be a powerful tool in criminal defense. The tests are widely accessible, portable, relatively inexpensive, painless, and simple to administer. However, it is important to understand how polygraphs can be used in court before deciding if a polygraph would be helpful to your case.

In Georgia, polygraph results are only admissible if both parties agree before the test is administered that the results can be used in court regardless of what they results show. This rule comes from the Georgia Supreme Court case State v. Chambers, which was decided in 1977.   That means that your attorney and the prosecutor will have to agree to who administers the test, what questions are on the test, when and where the test is given, and that the results will be admissible during your trial before you take the test. If there is no agreement, the test results cannot be used.

However, the State cannot use your refusal to consent to a polygraph test against you. In Brown v. State, a 1985 Georgia Court of Appeals case, the court reiterated that only the results are admissible, not the fact that a defendant refused to take a polygraph. It is also important to note that a defendant does not have to be represented by counsel at the time they agree to have the results of a polygraph test admitted in court.

Finally, the admission of polygraph evidence is governed by the Georgia Rules of Evidence in that the test must be administered in a reliable manner and the person testifying about the results (the polygraph examiner) must be qualified as an expert.

If you are charged with a serious crime, it is important to speak with an experienced criminal defense lawyer before agreeing to take a polygraph test because once you agree, the results will be admitted in your trial regardless of what the results say. The lawyers at W. Scott Smith are experienced in representing clients charged with murder, rape, child molestation, drug offenses, gang crimes and aggravated assault, and know how to leverage polygraph evidence to benefit our clients. If you are facing criminal charges in Gwinnett, Fulton, Cobb, Douglas, Forsyth, Dekalb, Clayton, or Fayette County, call our office at 404-581-0999 today for a free consultation.

Keeping Evidence of Bad Character Out of Your Trial

It is not uncommon in criminal cases for the state to attempt to introduce evidence of other bad things defendants have done. The Georgia Rules of Evidence are very clear that this evidence can not be admitted for propensity purposes. That means the state can’t introduce bad character evidence just to try to make the jury believe that because a defendant acted a certain way in the past that they acted in the same way during the commission of whatever crime they are charged with. For example, if you are charged with armed robbery, the state cannot admit evidence that you were involved in another armed robbery just to say “because he armed robbed someone in the past, he armed robbed someone this time”. But the state will also often try to use the Rules of Evidence to get around this ban on bad character evidence. If the state can convince a judge that they are attempting to bring in the evidence as proof of intent, motive, knowledge, identity, plan, or purpose, they will be allowed to present the evidence.

Additionally, the evidence the state is attempting to introduce should be kept out if any probative value (i.e., usefulness) is substantially outweighed by prejudice to the defendant. It is important to hire an attorney who will zealously fight to keep any bad character evidence out of your trial. At the Law Offices of W. Scott Smith, we fight to protect our clients and will work tirelessly to prevent the state from being able to introduce this bad character evidence to the jury. If you have been charged with a serious crime like murder, rape, armed robbery, or aggravated assault in Fulton, Cobb, Dekalb, Gwinnett, Clayton, or Rockdale Counties, call our office at 404-581-0999 for a free consultation.

Was my search warrant obtained properly?

In order for an investigator to obtain a search warrant, they have to prove to a magistrate judge that they have probable cause that a criminal activity occurred or is occurring. Probable cause basically means that investigators can communicate a “reasonable belief” that a criminal activity is taking place. Investigating officers have to lay out this probable cause in an affidavit attached to an application for search warrant. Then, a magistrate judge will review the affidavit and application and grant or deny the warrant. In addition to the written affidavit, magistrates may consider oral testimony of the officers during the warrant application process.

In Georgia, the courts have laid out several scenarios that instruct when probable cause has or has not been communicated. For example, a tip from a confidential informant in a drug case is not enough to establish probable cause. The tip would have to be corroborated by other circumstances. However, if police come to your door and you voluntarily speak with them and admit to a crime, there is enough probable cause to obtain a search warrant.

If a warrant is granted and it lacked probable cause, the warrant is bad and any search resulting from the warrant violates your Fourth Amendment rights. In this case, you need a lawyer to argue that your rights have been violated and that any evidence obtained during the execution of the bad search warrant must be suppressed.

At the Law Offices of W. Scott Smith, we are experienced at spotting issues with search warrants and often successful at having evidence suppressed. Often, after a judge has ruled that evidence must be suppressed, prosecutors are more willing to negotiate or even dismiss charges because they no longer have a strong case. If you are in Cobb, Clayton. Fulton, Gwinnett, Henry, or Rockdale County and are charged with a serious offense like Violation of the Georgia Controlled Substance Act, trafficking drugs, or possession of drugs with the intent to distribute and believe that your Fourth Amendment rights have been violated by a warrant lacking probable cause, call us for a free consultation at 404-581-0999.

Statements to the Police While in Custody

According to Miranda v. Arizona, a suspect must be given warning of their rights at the outset of the interrogation process. If a suspect states that he does not wish to speak with police, the police have a duty to halt the interrogation process.

A new ruling by the Georgia Supreme Court (State v. Burton) further affirms that the State holds the burden of proving that any statements made by a person suspected of a crime are made knowingly and voluntarily in light of a person’s right not to speak. If police ask a suspect if they want to speak and the suspect responds in an unambiguous way that they don’t, any statement that a suspect gives cannot be used against them in court. In fact, the interrogation should end immediately. Even if a suspect responds in a way that could be interpreted to be an agreement to speak, the totality of the circumstances should be examined to determine if the suspect actually knowingly and voluntarily agrees to speak with police

In the case of juvenile suspects, courts look at nine factors to determine whether a suspect knowingly and voluntarily waived his rights not to speak with police: (1) the age of the accused; (2) the education of the accused; (3) the knowledge of the accused as to both the substance of the charge . . . and the nature of his rights to consult with an attorney and remain silent; (4) whether the accused is held incommunicado or allowed to consult with relatives, friends or an attorney; (5) whether the accused was interrogated before or after formal charges had been filed; (6) the methods used in interrogation; (7) the length of interrogations; (8) whether the accused refused to voluntarily give statements on prior occasions; and (9) whether the accused has repudiated an extra judicial statement at a later date.

If you believe that you have been questioned by police after you have invoked your right not to speak, it is important that those statements are not used against you. It doesn’t matter how serious the charges, you have a right to have those statements suppressed. Contact our office today at 404-581-0999 so that we may help protect your constitutional rights.


Self Defense In Georgia: Immunity Hearing

If you are charged with a crime in Georgia and believe you acted in self-defense, you are entitled to an immunity hearing. Your attorney will need to file a motion and request a hearing.

O.C.G.A. 16-3-24.2 gives you this right to an immunity hearing. At this hearing, a judge will determine if you acted in self-defense and the judge can dismiss your case.

Soon after you are arrested, start gathering information that may assist in your defense. Get contact information for any potential witness so that your attorney can interview. Write down everything you remember about the case and why you believed you had to use force.

The trial court has a duty to determine before trial whether a person claiming the use of threats or force in self-defense or defense of property is immune from prosecution.

The defendant bears the burden of proof at the immunity hearing in proving he was justified in using force by a preponderance of the evidence.

If the judge rules against you in an immunity hearing, you can still have a jury trial and argue self-defense to the jury. It might be easier to win at trial due the burden of proof being beyond a reasonable doubt. At the immunity hearing, the burden is on the defense to prove self-defense. At trial, the burden shifts to the State to show that the defendant was not acting in self-defense.

If you are arrested for any crime in Georgia where you believe you acted in self-defense, please call our office 24/7 at 404-581-0999. We will sit down with you and fully discuss your case and what to expect in court. There is no charge for the initial consultation. You will only retain us if you feel we are the best law firm to represent you. It is your case and your life so you need to hire the lawyer that you feel gives you the best chance to win.

What do you do if you are arrested for possession with intent or trafficking in drugs in Georgia?

If you or a loved one is arrested for Possession with Intent to Distribute or Trafficking in Georgia, it is important that you act immediately to protect yourself. Do not wait until your court date to get an attorney and to preserve evidence.

The District Attorney has a dedicated division to prosecute cases involving Possession with Intent to Distribute or Trafficking. They will vigorously prosecute you if you are charged with a crime involving selling cocaine, heroin, methamphetamines, marijuana or other illegal drugs.   

Do not think that just because you are innocent that the charges will be dismissed. Drug charges are aggressively prosecuted all over the State of Georgia.

Make sure your attorney has had felony jury trials and has won these cases. Do not let an attorney handle your case who does not specifically handle drug cases. Many drug cases are won at a motions hearing. It is imperative that you get body cams, dash cams, search warrants and take witness statements of anyone involved in the search and seizure of the drugs.  

The law may say you are presumed innocent but in drug cases, you have to prove your innocence.

Here is what you should do if arrested for Possession with Intent to Distribute or Trafficking.

  1. Hire an attorney – Make sure that attorney actually handles and tries drug cases. Most criminal defense attorneys do not handle these cases. Make sure the attorney you talk to does regularly handles drug cases in Georgia
  2. Avoid making any statements – Do not walk into the police department and profess your innocence. The police will not believe you. Do not think you can show up at your first court date and tell the prosecutor and judge that you are innocent and expect the charges to be dropped. If you are arrested for possession with intent to distribute or trafficking, you have to start preparing for your jury trial. Do not make any statements to anyone except your lawyer.
  3. Start gathering important evidence
    1. Gather and preserve any physical evidence in your possession.
    1. Gather and preserve any documents that might relate to this accusation including emails, texts, social media, phone records, GPS records, computer records or any other document that might show where you were when this incident allegedly occurred.
    1. Witnesses – Immediately make a list of any person who you think might have information about this accusation. Do not discuss the case with this person but pass this list of potential witnesses to your attorney and let your attorney contact them.

Here is what you should never do if arrested for possession with intent to distribute or trafficking in Georgia.

  1. Never talk to law enforcement or the prosecutor without an attorney.

If you are arrested for possession with intent to distribute or trafficking in cocaine, heroin, marijuana, methamphetamine or any other illegal drug, please call our office 24/7 at 404-581-0999 or send us an email at We will sit down with you and fully discuss your case and what to expect in court. There is no charge for the initial consultation. You will only retain us if you feel we are the best law firm to represent you. It is your case and your life so you need to hire the lawyer that you feel gives you the best chance to win.