The Prior Inconsistent Statement Project, Part 4 (Georgia)

Based on my posts from the last two days (here and here), I have identified eight possible jurisdictions where a recanted prior inconsistent statement not given subject to the penalty of perjury might be sufficient to support a conviction: (1) Colorado, (2) Delaware, (3) Georgia, (4) Kansas, (5) Kentucky, (6) Maryland, (7) Nevada, and  (8) South Carolina. In the next series of posts, I want to look at precedent from each of these jurisdictions to see exactly what they have (and have not) held on this issue.

In United States v. Bahe, 40 F.Supp.2d 1302, 1311 (D.N.M. 1998), the court noted that it had done an exhaustive search on the issue and found that,

with the single exception of the state of Georgia, every state court to address the issue, the single federal court to address the issue, and respected legal scholars have all concluded that a prior inconsistent statement which is neither sworn nor reduced to [a signed] writing is insufficient evidence on which to base a conviction.

Therefore, it’s quite possible that state courts in Georgia are the only state or federal courts across the country to reach such a conclusion. So, let’s look at the Georgia case cited in Bahe.

In Ramsey v. State, 448 S.E.2d 790 (Ga.App. 1994), Gary Ramsey was charged with child molestation based on allegedly “fondling the breasts and vagina of his stepdaughter, a child under the age of 14.” 

At trial, the appellant’s first cousin, Diane Foster, testified that the victim of the offense on trial told her that “her daddy [the appellant] had touched her private parts in the trailer that they’d lived in [sic] town. They were on the couch.” The witness also testified that the appellant had sexual intercourse with her numerous times when she was between the ages of 12 and 14. One of the appellant’s brothers and four nieces and nephews testified to the appellant’s acts of fondling, sodomy and attempted intercourse committed against them as children aged three to fourteen. Russell Ramsey, another brother of the appellant, testified that he had seen the appellant go into the bathroom to give the victim a bath at their parents’ house, and on another occasion he heard the appellant make lewd comments in her presence about the victim’s developing breasts and pubic hair.

When it came time for the victim to testify, however, she recanted, testifying “that the appellant had never touched her improperly and that the allegations were ‘a bunch of lies.'” The prosecution responded by admitting the victim’s prior inconsistent statement under OCGA § 24-3-16, which provides an exception to the rule against hearsay for statements made by child younger than 16 years of age describing acts of sexual contact or physical abuse. Additionally, “the sexual abuse investigator for the Department of Family & Children Services testified, based on her experience and training, that the victim’s behavior and recantation of her allegations are consistent with the child abuse accommodation syndrome.”

After he was convicted, Ramsey appealed, claiming, inter alia, that the evidence was insufficient to support his conviction. The Court of Appeals of Georgia disagreed, concluding that

Although the evidence was conflicting and depended largely on an assessment of the victim’s credibility and other testimony regarding the child sexual abuse accommodation syndrome, the credibility of witnesses and the resolution of evidentiary conflicts are for the jury. “On appeal of a conviction based on a jury verdict, this court resolves all conflicts in favor of the verdict and examines the evidence in a light most favorable to that verdict.”…Viewed in the light most favorable to the verdict, the evidence authorized a rational trier of fact to find the appellant guilty of the charged offense beyond a reasonable doubt.

I find it odd that the Bahe court concluded that Ramsey was a case in which the court concluded that a prior inconsistent statement alone was sufficient to support a conviction. As the above discussion makes clear, in addition to the recanted statement by the alleged victim, there was also modus operandi testimony by other alleged victims as well as testimony by a sexual abuse investigator.

That said, as reader Charles Cork noted in a comment to one of my prior posts, there is Georgia case law, including Andrews v. State, 275 Ga. App. 426, 429 (Ga. Ct. App. 2005), which supports the conclusion that, in Georgia, a prior inconsistent statement alone was sufficient to support a conviction. That said, it appears that there are two key limitations on this conclusion.

First, in Holiday v. State, 534 S.E.2d 411, 413 (Ga. 2000), the Supreme Court of Georgia noted that, “[a]lthough the better practice would be to introduce a video or audio recording of any prior statement, a recording is not required if the statement is shown to be given under reliable circumstances.” This makes it seem like a Georgia judge should only admit a prior inconsistent statement (1) via audio or video recording; or (2) after finding that the statement was given under relible circumstances.

Second, Georgia has a fairly significant foundational requirement for the admission of prior inconsistent statements. As the Court of Appeals of Georgia concluded in Miller v. State, 665 S.E.2d 692, 694, 695 (Ga.App. 2008):

We do not agree that the statement was admissible as a prior inconsistent statement because our examination of the transcript shows that the state failed to lay the proper foundation for admissibility of the testimony. OCGA § 24-9-83* provides:

A witness may be impeached by contradictory statements previously made by him as to matters relevant to his testimony and to the case. Before contradictory statements may be proved against him, unless they are written statements made under oath in connection with some judicial proceedings, the time, place, person, and circumstances attending the former statements shall be called to his mind with as much certainty as possible.

“It is not sufficient to ask merely whether the witness spoke to another person about a certain matter.” In this case, Goodrum was not asked at all about her statement to Falberg that Miller was drunk. Therefore, the state did not lay a proper foundation for the admission of the statement as a prior inconsistent statement.

So, it looks like there are some safeguards in place before a recanted prior inconsistent statement can support a conviction. First, it must be proven through a recording or otherwise be found reliable, and, second, foundationally, the time, place, person, and circumstances attending the former statement(s) shall be called to the witness’s mind with as much certainty as possible.

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*Which is now § 24-6-613(a).

-CM