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Posted by Ben Sessions | Sep 26, 2015 | 0 Comments

Generally, nothing good happens on appeal when the trial lawyer failed to object to the complained-of jury instructions at trial. “Waiver” is probably the favorite go-to position for our appellate courts.


It is always a difficult decision for trial counsel as to whether objections should be interposed repeatedly throughout a trial. Often times, repeatedly interposing objections during a criminal trial can affect the way in which a jury views the defendant. Of particular concern is the possibility that the repeated objected objections can be viewed as an effort to hide the truth from the jury. However, once the case is on appeal, post-conviction relief attorneys would much rather deal with potential errors that were objected to by trial counsel.

If you are not sure why that is the case, consider Brown v. State, No. S15A0992, 2015 WL 5316796 (Ga. Sept. 14, 2015):

Finally, Appellant contends that the trial court erred in giving the jury an instruction on prior consistent statements. Because he did not object to this instruction at trial, we review his claim only for plain error, meaning that we will reverse the trial court only “ ‘if the instructional error was not affirmatively waived …, was obvious beyond reasonable dispute, likely affected the outcome of the proceedings, and seriously affected the fairness, integrity, or public reputation of judicial proceedings.' “ Woodard, 296 Ga. at 806, 771 S.E.2d 362 (citation omitted). See also OCGA § 17–8–58(b).

Appellant relies on this Court's holding in Stephens v. State, 289 Ga. 758, 716 S.E.2d 154 (2011), that “an instruction on prior consistent statements should no longer be given except where the circumstances of an unusual case suggest that the jury may have the mistaken impression that it cannot consider a prior consistent statement as substantive evidence.” Id. at 759, 716 S.E.2d 154. Although Stephens was not decided until a year after Appellant's trial, before his trial the Court of Appeals had expressed doubts about the prior consistent statements charge. See Boyt v. State, 286 Ga.App. 460, 468, 649 S.E.2d 589 (2007) (“The better practice would be to give no charge at all on prior consistent statements and leave that matter to the arguments of counsel.”). Even assuming that the giving of the charge was “obvious” error, however, Appellant's claim fails because he has not demonstrated that the instruction “likely affected the outcome of the proceedings.” The prior inconsistent statements instruction essentially just stated a truism and thus, as in most cases, any error in giving the charge was harmless. See Stephens, 289 Ga. at 760, 716 S.E.2d 154; Boyt, 286 Ga.App. at 468, 649 S.E.2d 589.

Brown v. State, No. S15A0992, 2015 WL 5316796, at *5 (Ga. Sept. 14, 2015)

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Ben Sessions

I work to provide exceptional service, attention, and results to each of my clients. Most of clients come to me because they are in a completely overwhelming situation. They need someone that will do more than address their legal problems.


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