Prior False Allegations Are Admissible in a Sex Offense Case

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You are accused with child molestation or rape and your accuser has previously falsely accused another person of these horrific crimes. Can you bring up these prior false accusations in your case? The answer is yes.

The Georgia Supreme Court held in State v. Burns, that a defendant in a sexual-offense prosecution may bring up evidence that the alleged victim has previously made false accusations of sexual misconduct. This evidence is admissible to attack the credibility of the victim and show that the current charges did not occur.

In this case, James Burns was charged with aggravated sexual battery, aggravated sodomy, and incest. It was discovered that the alleged victim had made up a prior rape allegation.

The Rape Shield Statute of Georgia does not prohibit testimony of previous false allegations by a victim. This is because prior false accusations establish that the victim has a propensity to make false statements regarding sexual misconduct. The Rape Shield Statute in Georgia is designed to prohibit bringing up the victim’s past sexual conduct. But it does not protect the victim in cases where a false allegation was made.

A criminal defendant has a Sixth Amendment right to make a full defense. A defendant has the right to bring up prior false allegations where it can be shown that the allegation was indeed false. The Sixth Amendment also grants the defendant the right of confrontation. This includes the right to physically face the person who is testifying against him and the right to conduct a thorough cross-examination. A defendant is guaranteed the opportunity for effective cross-examination.

In addition, the due process clause of the Fourteenth Amendment guarantees a criminal defendant a meaningful opportunity to present a complete defense. The defendant does not have a right to offer any testimony that is either privileged, irrelevant or excluded under the rules of evidence. However, if the defendant has evidence of a prior false allegation of the alleged victim then it is admissible in order to protect the integrity of the trial.

In State v. Burns, the Georgia Supreme Court has made a bright line rule that prior false allegations are admissible, regardless of other rules of evidence.

If you are charged with aggravated child molestation, child molestation, sexual battery, rape or any other sexual offense in Georgia, it is imperative that you aggressively defend yourself and learn everything you can about the alleged victim. If the alleged victim in your case has ever made up an allegation against any other person, you must use this information to your advantage when confronting your accuser in court.

If you are charged with any sexual offense in Georgia, please contact us at 404-581-0999

What is Arraignment?

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If you are charged with committing a crime, there are many different hearings that you might have to attend. One of those is an Arraignment. What is an Arraignment? An arraignment is the first court appearance or first court date someone receives after they get out of jail on bond or after they receive a traffic ticket. Some counties don’t give you a court date immediately. Other counties will mail you a court date. Sometimes it can be a while before you have your first court date.

What is the purpose of Arraignment? Arraignment is to notify you what your charges are and give you an opportunity to plead guilty or not guilty. In Georgia, every defendant has the right to an arraignment in a felony and misdemeanor case.

Sometimes the charge you were originally given or arrested for is not the same charge that the prosecutor is going forward on. This means that they can charge you with something more serious or charge you with something less serious.

Arraignment is not the time where you can present evidence or argue your case to the judge.  It is simply the time to enter guilty or not guilty and hear the formal charges the prosecutor is moving forward against you on. In all, not much happens at Arraignment. Ideally, you should have an attorney to represent you at arraignment. A lawyer can appear in court on your behalf and waive arraignment to excuse you from court.

If you or someone you know has been arrested or charged with a crime or is under investigation, having a lawyer help you through the process can ensure your rights are protected. Contact the Law Office of Scott Smith today for a free consultation at 404-581-0999.

 

Rape Shield in Georgia

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If you are charged with Rape anywhere in the State of Georgia, it is imperative that you retain a sex crimes defense attorney immediately. There are rules in Georgia that protect the alleged victim from having her character attacked.

O.C.G.A. 24-4-412 prohibits certain evidence from being introduced at trial. This is known as the Rape Shield Statute. The evidence that is excluded from trial include, but not limited to, evidence of the alleged victim’s marital history, mode of dress, and general reputation for promiscuity, nonchastity, or sexual mores contrary to the community standards.

The Rape Shield Statute contains an exception to its exclusionary rule. The past sexual behavior of the complaining witness is not admissible unless the trial court found that the past sexual behavior directly involved the participation of the defendant and found that the evidence expected to be introduced supported an inference that the defendant could have reasonably believed that the complaining witness consented to the conduct complained in the prosecution.

Do not think that if you are charged with Rape in Georgia that you can attack the alleged victim for her past sexual behavior or think that just because she was dressed a certain way that you can argue that to the jury. The laws in Georgia protect rape victims from a character assassination in Georgia.

If you want to bring in evidence that fits the exception to the Rape Shield Statute, then the defendant shall notify the court of such intent, whereupon the court shall conduct an in camera hearing to examine the accused’s evidence. At the conclusion of this hearing, if the court finds that any of the evidence introduced at the hearing is admissible or is so highly material that it will substantially support a conclusion that the accused reasonably believed that the complaining witness consented to the conduct complained of and that justice mandates the admission of such evidence, the court shall by order state what evidence may be introduced by the defense at the trial of the case and in what manner the evidence may be introduced.

So, if you are accused of Rape, it is important to write out a log of every interaction you have had with the alleged victim, exactly what you remember talking about with the alleged victim and any evidence or witnesses that may help you establish that you believe consent was given.

In a Rape case, your life is literally hanging in the balance. Do not think that just because you believe you had consent and just because you know it did not happen, that the case will just go away or the judge and jury will just understand your side. Once you are accused of Rape, you need to go on offense in your preparation and show that either 1) you were misidentified as the person accused of rape or 2) you had consent of the alleged victim.

A person convicted of Rape can be punished by death, by imprisonment for life without parole, by imprisonment for life with the possibility of parole or by a split sentence that is a term of imprisonment for not less than 25 years and not exceeding life imprisonment to be followed by probation for life. Any person convicted of rape is subject to the sentencing provisions of O.C.G.A. §§ 17-10-6.1 and 17-10-7.

In addition, the person could be on the Sex Offender Registry for life.

If you face charges in Georgia for Rape, it is imperative that you do not make any statements to law enforcement or to anyone else and immediately seek help from an experienced attorney handling Rape cases in Georgia. You must protect your rights and take this matter very seriously.

The statute of limitation for a prosecution of rape is 15 years.

I would be happy to meet with you any time for a free consultation to discuss your case, your rights and your defenses to these allegations.

Call me at 404-581-0999 and let’s schedule a time to meet and discuss your case.

Rape Shield Statute

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If you are charged with Rape in Georgia, it is imperative that you retain a sex crimes defense attorney immediately. There are rules in Georgia that protect the alleged victim from having her character attacked.

O.C.G.A. 24-4-412 prohibits certain evidence from being introduced at trial. This is known as the Rape Shield Statute. The evidence that is excluded from trial include, but not limited to, evidence of the alleged victim’s marital history, mode of dress, and general reputation for promiscuity, nonchastity, or sexual mores contrary to the community standards.

The Rape Shield Statute contains an exception to its exclusionary rule. The past sexual behavior of the complaining witness is not admissible unless the trial court found that the past sexual behavior directly involved the participation of the defendant and found that the evidence expected to be introduced supported an inference that the defendant could have reasonably believed that the complaining witness consented to the conduct complained in the prosecution.

Do not think that if you are charged with Rape in Georgia that you can attack the alleged victim for her past sexual behavior or think that just because she was dressed a certain way that you can argue that to the jury. The laws in Georgia protect rape victims from a character assassination in Georgia.

If you want to bring in evidence that fits the exception to the Rape Shield Statute, then the defendant shall notify the court of such intent, whereupon the court shall conduct an in camera hearing to examine the accused’s evidence. At the conclusion of this hearing, if the court finds that any of the evidence introduced at the hearing is admissible or is so highly material that it will substantially support a conclusion that the accused reasonably believed that the complaining witness consented to the conduct complained of and that justice mandates the admission of such evidence, the court shall by order state what evidence may be introduced by the defense at the trial of the case and in what manner the evidence may be introduced.

So, if you are accused of Rape, it is important to write out a log of every interaction you have had with the alleged victim, exactly what you remember talking about with the alleged victim and any evidence or witnesses that may help you establish that you believe consent was given.

In a Rape case, your life is literally hanging in the balance. Do not think that just because you believe you had consent and just because you know it did not happen, that the case will just go away or the judge and jury will just understand your side. Once you are accused of Rape, you need to go on offense in your preparation and show that either 1) you were misidentified as the person accused of rape or 2) you had consent of the alleged victim.

A person convicted of Rape can be punished by death, by imprisonment for life without parole, by imprisonment for life with the possibility of parole or by a split sentence that is a term of imprisonment for not less than 25 years and not exceeding life imprisonment to be followed by probation for life. Any person convicted of rape is subject to the sentencing provisions of O.C.G.A. §§ 17-10-6.1 and 17-10-7.

In addition, the person could be on the Sex Offender Registry for life.

If you face charges in Georgia for Rape, it is imperative that you do not make any statements to law enforcement or to anyone else and immediately seek help from an experienced attorney handling Rape cases in Georgia. You must protect your rights and take this matter very seriously.

The statute of limitation for a prosecution of rape is 15 years.

I would be happy to meet with you any time for a free consultation to discuss your case, your rights and your defenses to these allegations.

Call me at 404-581-0999 and let’s schedule a time to meet and discuss your case.

Governor Kemp Signs Bill that will Enhance Penalties for Fleeing and Eluding in Georgia

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By: Attorney Erin Dohnalek

On April 25th, 2022, Governor Kemp signed legislation to further public safety efforts in the State of Georgia. One of the bills that he signed, which was passed in the House, as well as the Senate, will enhance or increase penalties and sentencing for individuals charged with fleeing or attempting to elude a police officer. This bill will go into effect on July 1st, 2022.

This bill states that:

  • It is unlawful for a driver to fail to stop his/her vehicle or attempt to flee or elude a police officer when he/she is given a visual or audible signal to stop.
  • Any person convicted of a first, second, or third violation of this law will be guilty of a high and aggravated misdemeanor.
  • Any person convicted of a fourth or subsequent violation of this law will be guilty of a felony.

Sentencing:

  • The penalties for a first conviction will be a fine of at least $1,000 and 30 days in jail.
  • The penalties for a second conviction within a 10-year period will be a fine of at least $2,500 and 90 days in jail.
  • The penalties for a third conviction within a 10-year period will be a fine of at least $4,000 and 180 days in jail.
  • The penalties for a fourth conviction, and any subsequent conviction, within a 10-year period will be a fine of at least $5,000 and 12 months in custody.

This bill will dramatically change the penalties for fleeing and eluding in Georgia. A high and aggravated misdemeanor generally means that the accused will have to serve the entire jail-sentence in custody without the possibility of receiving 2 for 1 credit. The fourth conviction of this crime in a 10-year period will constitute a felony offense. Furthermore, a nolo contendere plea will not avoid mandatory jail time, or a conviction.

Any arrests that occur prior to July 1st, 2022, for fleeing or attempting to elude a police officer will still be pursuant to the prior statute that allows for lower penalties and sentencing. However, if an accused is arrested for fleeing and eluding on, or after, July 1st, 2022, the sentencing will be enhanced pursuant to this new law.

Contact Us

Due to the severity of the punishment for fleeing and eluding based on this new legislation, it is of vital importance to speak with an experienced criminal defense attorney about your case. At the Law Offices of W. Scott Smith, our lawyers are trained to know every aspect of this new law, we understand the defenses to the charge, we take pride in advocating for our clients’ constitutional rights, and we detail all options for our clients when defending their case. If you or a loved one has been charged with fleeing and eluding, please call our office today at 404-581-0999 for a free consultation.

I was arrested with a warrant, and they did not bring me to court, what do I do?

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If you have been arrested, booked into the County Jail, and there is a warrant, you must be brought before a Judge within 72 hours. If you are not brought before a judge within 72 hours, you must be released from custody.

Under O.C.G.A. § 17-4-26, it requires the law enforcement officer to “exercise reasonable diligence in bringing the person arrested before the judicial officer authorized to examine, commit, or receive bail and in any event to present the person arrested before a committing judicial office within 72 hours of arrest.” Further, “[a]n arrested person who is not notified before the hearing of the time and place of commitment hearing, shall be released.” Chisholm v. State, 231 Ga. App. 835, 840 (1998)

If you or someone you know has been arrested for a charge with a warrant, and they have not been brought before a judge, having a lawyer fight your case can result in a better outcome. Contact the Law Office of Scott Smith today for a free consultation at 404-581-0999.

I was arrested without a warrant, and they did not bring me to court, what do I do?

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If you have been arrested, booked into the County Jail, and there is no warrant, you must be brought before a Judge within 48 hours. If you are not brought before a judge within 48 hours, you must be released from custody.

Under O.C.G.A. § 17-4-62, it requires the arresting person (typically the police officer) to “without delay, convey the offender before the most convenient judicial officer authorized to receive an affidavit and issue a warrant as provided for in Code Section 17-4-40.” Further, “[n]o such imprisonment shall be legal beyond a reasonable time allowed for this purpose; and any person who is not brought before such judicial officer within 48 hours of arrest shall be released.” Riverside v. McLaughlin, 500 U.S.  44, 57 (1991).

If you or someone you know has been arrested for a charge without a warrant, and they have not been brought before a judge, having a lawyer fight your case can result in a better outcome. Contact the Law Office of Scott Smith today for a free consultation at 404-581-0999.

What is an arraignment and what happens after?

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If you have been charged with a crime in Georgia, you will likely receive a court date in the mail, informing you that your case has been scheduled for an arraignment. An arraignment is an opportunity to have your charges read aloud in open Court, and for you to enter a plea of guilty, not guilty, or nolo. If your case is in Dekalb, Cobb, Fulton, Douglas, Clayton, or another State Court, then you are able to waive this arraignment by filing a waiver of arraignment with the Court. Many attorneys typically waive arraignment on behalf of their clients as a matter of course. This is because State Court arraignments are typically formalities, and not really necessary if you have retained an attorney (you are pleading not guilty! That’s why you hired an attorney!).

If your case is located in Municipal Court, your court dates will likely all say “arraignment.” This is because many Municipal Courts hold arraignment calendars every day. Arraignment in Municipal Court, unlike in State Courts, cannot be waived, even if it is your first court date. If this is the case, you must be present at your first court date.

Some time after your arraignment date, if you or your attorney has filed a motion requesting discovery, the Prosecutor will send discovery. Discovery is the evidence that the prosecutor has which they plan on using in your case. If it has been several weeks since your arraignment and you have not received discovery after you have requested it, you should reach out to an attorney or to the Court to tell them that you have not received it.

The criminal legal process can be confusing and scary. You are not alone. We have an experienced team of attorneys who can guide you through the process from arraignment through trial. Reach out to our office today for a free consultation. Call us at 404-581-0999. Written by Attorney Katherine Edmonds.

Georgia Immunity Motions in Domestic Violence Cases

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If a person is charged in the State of Georgia with Domestic Violence, that person has the right to claim self-defense. Not only can the person claim self-defense at trial, but the person also has the right to file what is called an immunity motion under O.C.G.A. § 16-3-24.2.

This is a legal motion made pre-trial, whereby a person can assert that their self-defense claim is so strong that the Court cannot allow the prosecutor to continue with the case. Once the motion is filed, the Court must hear and rule on the motion prior to trial.

In an immunity motion the burden is on the defense to establish, by a preponderance of the evidence (more likely than not), that they should win on the self-defense theory. Once the defense has raised the self-defense claim, the State then has the burden of disproving the claim of self-defense beyond a reasonable doubt. The judge will hear testimony, consider evidence, and make a ruling. Two outcomes can occur:

  1. If the Court finds that the defense presented sufficient evidence at the pretrial hearing and persuaded the Court that they were acting in self-defense — the Court will grant the motion and dismiss the case.
  2. If the Court finds that the defense did not present sufficient evidence at the pretrial hearing and did not persuade the Court that they were acting in self-defense — the Court will deny the motion and the case will proceed to trial.

The advantage to filing this type of motion is that it can protect a person who is charged with domestic violence from the risk of uncertainty of going to trial. If the motion is not successful, the person charged, still has every right to fight the charges at trial. These motions can be very beneficial, in the right case, for the person charged with domestic violence.

If you or someone you know has been arrested for a domestic violence charge, having a lawyer fight your case can result in a better outcome. Contact the Law Office of Scott Smith today for a free consultation at 404-581-0999.

Rape in Gwinnett County

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Rape is a serious crime in Gwinnett County. O.C.G.A. § 16-6-1 defines rape as follows:

  1. A person commits the offense of rape when he has carnal knowledge of:
    1. A female forcibly and against her will or:
    2. A female who is less than ten years of age.

If you are charged with rape in Gwinnett County, do not speak to the police. Do not make statements to a Gwinnett County Detective. You will be taken to the Gwinnett County jail. You cannot get a bond at first appearance from a Gwinnett County Magistrate judge. Rape is only bondable by a Gwinnett County Superior Court judge. You will need to apply for this bond hearing.

Carnal knowledge in rape occurs when there is any penetration of the female sex organ by the male sex organ.  Any penetration, however slight, is sufficient and can be proven by direct or circumstantial evidence. The fact that the person allegedly raped is the wife of the defendant shall not be a defense to a charge of rape.

How do you define “force” in a rape case in Georgia? Force means acts of physical force, threats of death or physical bodily harm, or mental coercion, such as intimidation. Lack of resistance, induced by fear, is force.

The elements of Rape in Georgia are 1) penetration, 2) force, and 3) against her will. If the person is underage, then force is implied. If the person is above the age of consent, but due to mental incompetence or severe intoxication, then finding of constructive force based on penetration.

The law on Rape in Georgia does not require physical injury or semen.

A person convicted of Rape can be by imprisonment for life without parole, by imprisonment for life with the possibility of parole or by a split sentence that is a term of imprisonment for not less than 25 years and not exceeding life imprisonment to be followed by probation for life. Any person convicted of rape is subject to the sentencing provisions of O.C.G.A. §§ 17-10-6.1 and 17-10-7.

In addition, the person could be on the Sex Offender Registry for life.

A person convicted of rape can also be held to account for civil liability. Furthermore, if the rape was committed by the defendant while he was acting in his scope of his employment, his employer may also be held liable.

If you face charges in Gwinnett County for Rape, it is imperative that you do not make any statements to law enforcement or to anyone else and immediately seek help from an experienced attorney handling Rape cases in Georgia. You must protect your rights and take this matter very seriously.

The statute of limitation for a prosecution of rape is 15 years.

I would be happy to meet with you any time for a free consultation to discuss your case, your rights and your defenses to these allegations.

Call me at 404-581-0999 and let’s schedule a time to meet and discuss your case.

It is your life, your criminal record and you deserve the best representation possible.