CONSENT TO SEARCH: WHY DOESN’T THE JURY DETERMINE IF IT EXISTED?

By Ben Sessions on September 25th, 2015 in Criminal Defense

One of the most frustrating issues in Georgia criminal cases is what juries don’t actually know about the case and the direct implications of a conviction, and perhaps more frustrating is the submission of some issues to the jury, while others are decided solely by the trial court.

Recently, in the Georgia Supreme Court’s Williams decision, the Court presented attorneys defending DUI charges, particularly those involving blood or breath tests, with a tremendous opportunity. However, in the months that have passed, what DUI defense lawyers have continually experienced is that judges are simply unwilling to take an honest approach to the Williams decision. I have no doubt that it is hard to make decisions that, as an elected official, seem unpopular. Here’s the thing though, these decisions are not really politically unpopular. Recognizing that many DUI suspects cannot freely and voluntarily submit to testing is just right, and I believe that if we submitted the issue to juries, we would see a different result in the vast majority of cases.

SO, HOW DID THE COURTS DECIDE NOT TO SUBMIT THE “VOLUNTARINESS” OF CONSENT TO SEARCHES TO JURIES IN GEORGIA?

Below are the fundamental cases that serve as the basis for the rule in Georgia that the voluntariness of consent to searches will not be decided by the jury:

Pierce next contends that the trial court erred in refusing to give his requested jury charge that the jury was to decide whether consent to the search was given and thus whether the search was valid. This issue, however, is solely the province of the trial judge on a motion to suppress and is not a question for the jury. Rogers v. State. Thus, we have consistently upheld a trial court’s refusal to give a jury charge such as that requested by Pierce. See Hamilton v. State; Duffee v. State.6 We similarly uphold the trial court’s refusal here.

Pierce v. State, 274 Ga. App. 670, 671, 618 S.E.2d 700, 701-02 (2005).

Our Code Ann. s 27-313 appears to have been patterned after Federal Rules of Criminal Procedure 41 (18 U.S.C.A.) as both have similar wording. Federal courts are unanimous in interpreting FRCP 41 that “(i)t is for the court and not the jury to decide whether evidence has been illegally seized.” Bretti v. Wainwright, 439 F.2d 1042(7) (5th Cir. 1971), U.S. cert. den. 404 U.S. 943, 92 S.Ct. 293, 30 L.Ed.2d 257; accord, Ford v. United States, 273 U.S. 593, 605, 47 S.Ct. 531, 535, 71 L.Ed. 793, supra; Burris v. United States, 192 F.2d 253(2) (5th Cir. 1951); Miller v. United States, 354 F.2d 801(1) (8th Cir. 1966). Jackson v. Denno, 378 U.S. 368, 84 S.Ct. 1774, 12 L.Ed.2d 908 cannot be invoked to determine validity of a search and seizure. Phelper v. Decker, 401 F.2d 232, 235 (5th Cir. 1968). Thus, existence and voluntariness of consent to search are questions to be decided solely by the judge and not the jury. United States v. Aldrete, 414 F.2d 238(4) (5th Cir. 1969); United States v. Watson, 459 F.2d 588(1) (8th Cir. 1972). The trial court did not err in failing to instruct the jury on consent to search.

Rogers v. State, 155 Ga. App. 685, 686, 272 S.E.2d 549, 551 (1980).

A couple of questions remain in my mind. In determining the voluntariness of statements, juries examine the totality of the circumstances to determine what weight, if any, should be given to the statements. Why doesn’t the Equal Protection Clause forbid the different treatment of defendants (or even the same defendant) challenging the weight of confessions as opposed to searches?

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