Recently, many criminal defense lawyers who have never considered having their clients testify in a motion hearing have started looking at the issue much more closely. With the Georgia Supreme Court's ruling in Williams v. State, which opened the door to constitutional challenges regarding the voluntariness of submission to testing, Georgia DUI lawyers, in particular, are contemplating whether to have their clients testify at a motions hearing. It is important to recognize what implications testimony at a pre-trial motions hearing may permissibly have upon the trial of the case. The answer is, for the most part, provided by Culpepper v. State:
The defendant filed a motion to suppress evidence and provided sworn testimony in support thereof. Some of this testimony was later presented to the jury, over the objections of defendant's counsel, by way of testimony from Sgt. Hallman and Sheriff Lee, the arresting officers. These circumstances fall squarely within the rule announced by the United States Supreme Court in Simmons v. United States, 390 U.S. 377, 394, 88 S.Ct. 967, 976, 19 L.Ed.2d 1247: ‘. . . in this case Garrett was obliged either to give up what he believed . . . to be a valid Fourth Amendment claim or, in legal effect, to waive his Fifth Amendment privilege against self-incrimination.
In these circumstances, we find it intolerable that one constitutional right should have to be surrendered in order to assert another. We therefore hold that when a defendant testifies in support of a motion to suppress evidence on Fourth Amendment grounds, his testimony may not thereafter be admitted against him at trial on the issue of guilt unless he makes no objection.' **20 The objections to the testimony of Sgt. Hallman and Sheriff Lee should have been sustained, and this case must be reversed on these grounds as well.
Culpepper v. State, 132 Ga. App. 733, 734, 209 S.E.2d 18, 19-20 (1974).
Under Culpepper, when a criminal defendant challenges the admissibility of the state's evidence on constitutional grounds, the defendant should be free to testify in support of the motion without fearing use of the testimony at the trial of the case. Concern over later use of such testimony really only arises when the motion is grounded in state evidentiary law or the theory of the defense requires the defendant to testify in the trial of the case.
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