# SUPREME COURT OF GEORGIA (2026)

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## Record

- **Collection:** Court rules
- **Document type:** Court rule

## Text

SUPREME COURT OF GEORGIA

December 8, 2025
IN RE: UNIFIED APPEAL PROCEDURE.
It is ordered that the Unified Appeal Procedure (“UAP”)
promulgated by the Supreme Court of Georgia pursuant to OCGA §
17-10-36(a) and (b), which relates to procedures in death penalty
cases, be amended and revised. The amendment incorporates new
procedures with respect to intellectual disability claims in death
penalty cases following the enactment of HB 123, which amended
OCGA § 17-7-128. The revisions update citation styles and make
other non-substantive edits.
The amended UAP shall take effect on January 15, 2026, and
will read as follows.

SUPREME COURT OF THE STATE OF GEORGIA
Clerk’s Office, Atlanta
I certify that the above is a true extract from the
minutes of the Supreme Court of Georgia.
Witness my signature and the seal of said court hereto
affixed the day and year last above written.

, Clerk

UNIFIED APPEAL PROCEDURE
TABLE OF CONTENTS
INTRODUCTION............................................................................................................................1
RULE I. STATEMENT OF PURPOSES..........................................................................................1
A. Purposes of the Outline of Proceedings.......................................................................................1
B. Purposes of the Checklist.............................................................................................................1
RULE II. PRE-TRIAL PROCEEDINGS..........................................................................................2
A. Qualifications of Appointed Counsel...........................................................................................2
B. Counsel for Indigent Defendants.................................................................................................3
C. First Proceeding...........................................................................................................................3
D. Motion Hearing...........................................................................................................................5
E. Forms For Required Jury Certificates (Superseded)....................................................................6
F. Pre-trial Intellectual Disability Hearing.......................................................................................6
G. Pre-trial Review Hearing.............................................................................................................6
H. Forms for Pre-trial Reports..........................................................................................................8
I. Pre-trial Review in the Supreme Court........................................................................................8
RULE III. TRIAL PROCEEDINGS.................................................................................................9
A. Guilt/Innocence Phase.................................................................................................................9
B. Intellectual Disability Phase......................................................................................................10
C. Sentencing Phase.......................................................................................................................11
RULE IV. REVIEW PROCEEDINGS..........................................................................................13
A. In the Superior Court............................................................................................................13
B. In the Supreme Court.................................................................................................................14
CHECKLIST..................................................................................................................................16
PART I. PRE-TRIAL...................................................................................................................16
PART II. INTERIM REVIEW.....................................................................................................19
PART III. TRIAL PROCEEDINGS: GUILT/INNOCENCE PHASE.........................................19
PART IV. TRIAL PROCEEDINGS: SENTENCING PHASE....................................................22
PART V. MOTION FOR NEW TRIAL.......................................................................................25
PART VI. REVIEW IN THE SUPREME COURT......................................................................25
PART VII. RETRIAL AS TO SENTENCE.................................................................................25
APPENDIX: FORM FOR THE REPORT OF THE TRIAL JUDGE.....................................A1-A6

OUTLINE OF PROCEEDINGS
INTRODUCTION
The Unified Appeal Procedure is promulgated by the Supreme Court pursuant to OCGA § 17-1036(a) and (b). The revised Unified Appeal Procedure should be followed beginning on January 15,
2026. The proceedings outlined here shall be applicable only in cases in which the death penalty
is sought.
NOTE
All proceedings in the superior court, including but not limited to all phases of the trial, all pretrial hearings, and all conferences, shall be recorded and transcribed. The defendant shall be present
and accompanied by defense counsel.
RULE I. STATEMENT OF PURPOSES
A. Purposes of the Outline of Proceedings. The Outline of Proceedings is a procedure to be
followed before, during, and after trial, having as its purposes:
1. Ensuring that all legal issues that ought to be raised on behalf of the defendant have been
considered by the defendant and defense counsel and asserted in a timely and correct manner.
2. Minimizing the occurrence of error and correcting as promptly as possible any error that
nonetheless may occur.
3. Making certain that the record and transcripts of the proceedings are complete for unified review
by the sentencing court and by the Supreme Court.
B. Purposes of the Checklist.
1. Appended to the Outline of Proceedings is a Checklist of legal issues that may arise in a death
penalty case. Its purpose is to remind the court, defense counsel, and the prosecuting attorney of
these issues and to provide a quick reference to case authority on issues specific to death penalty
trials. The parties may raise any issue, regardless of whether or not it is listed on the Checklist.
The Checklist will be revised and updated periodically.
2. Proper use of the Checklist as a means of avoiding or promptly correcting error will require the
court to schedule conferences (see Rules II and III) during which defense counsel and the
prosecuting attorney will be given an opportunity to present, or to schedule for presentation, issues
that would be waived if not asserted in the proper and timely fashion. These conferences shall be
transcribed by the official court reporter.

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RULE II. PRE-TRIAL PROCEEDINGS
A. Qualifications of Appointed Counsel. In order to ensure that persons are adequately
represented in death penalty cases, any attorney appointed to serve as either lead or co-counsel is
required to meet the following minimum qualifications:
1. Trial. Two attorneys shall be appointed to handle matters in death penalty cases:
a. Lead Counsel
(1) must be a member in good standing of the State Bar or admitted to practice pro hac vice, and
must have at least five years criminal litigation experience as a criminal defense attorney or a
prosecuting attorney; and
(2) must have been lead counsel on at least one death penalty murder trial to verdict or three capital
(non-death penalty) trials to verdict, one of which must have been a murder case, or been cocounsel on two death penalty cases; and
(3) must be familiar with the Unified Appeal Procedure; and
(4) must be familiar with and experienced in the utilization of expert witnesses and evidence,
including, but not limited to, psychiatric and forensic evidence; and
(5) must have attended within twelve months previous to appointment at least ten hours of
specialized training or educational programs in death penalty defense or, upon appointment, agree
to take ten hours of such training or educational programs and maintain annually during the
pendency of the case ten hours of such training or educational programs. This requirement may be
met by viewing video-recorded instruction and written materials and certifying to the trial court
that the materials have been reviewed; and
(6) must have demonstrated the necessary proficiency and commitment that exemplify the quality
of representation appropriate to capital cases.
b. Co-counsel
(1) must be a member in good standing of the State Bar with combined three years of criminal trial
experience either as a criminal defense attorney or a prosecuting attorney; and
(2) must have been lead or co-counsel in at least one (non-death penalty) murder trial to verdict,
or in at least two felony jury trials; and
(3) must have attended within twelve months previous to appointment at least ten hours of
specialized training or educational programs in death penalty defense or, upon appointment, agree
to take ten hours of such training or educational programs and maintain annually during the
pendency of the case ten hours of such training or educational programs. This requirement may be
met by viewing video-recorded instruction and written materials and certifying to the trial court
that the materials have been reviewed.
2. Direct Appeal. It is recommended that two attorneys be appointed to handle matters on a direct
appeal, unless the appointing authority decides for good cause that it is not necessary to have cocounsel.

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a. Lead Counsel
(1) must be a member in good standing of the State Bar or admitted to practice pro hac vice and
must have at least five years criminal litigation experience as a criminal defense attorney or a
prosecuting attorney; and
(2) must have been co-counsel, or have actively assisted in the direct appeal of at least one death
penalty case and have been counsel of record in at least three felony appeals; and
(3) must have attended within twelve months previous to appointment at least ten hours of
specialized training or educational programs relating to post-conviction appeals and appellate
procedures relating to post-conviction appeals or, upon appointment, agree to take ten hours of
such training or educational programs and maintain annually during the pendency of the case ten
hours of such training or educational programs. This requirement may be met by viewing videorecorded instruction and written materials and certifying to the trial court that the materials have
been reviewed.
b. Co-counsel
(1) must be a member in good standing of the State Bar with combined three years of criminal trial
experience either as a criminal defense attorney or a prosecuting attorney; and
(2) must have experience as counsel of record in three felony appeals either as a criminal defense
attorney or a prosecuting attorney; and
(3) must have attended within twelve months previous to appointment at least ten hours of
specialized training or educational programs relating to post-conviction appeals and appellate
procedures relating to post-conviction appeals or, upon appointment, agree to take ten hours of
such training or educational programs and maintain annually during the pendency of the case ten
hours of such training or educational programs. This requirement may be met by viewing videorecorded instruction and written materials and certifying to the trial court that the materials have
been reviewed.
3. Exceptions for Good Cause. The enforcement of these minimum qualifications rests with the
trial courts and the Supreme Court. If a trial judge finds that an attorney is otherwise competent
but does not meet these standards, the judge shall petition the Supreme Court prior to the First
Proceeding (Rule II(C)) under the Unified Appeal Procedure for authorization to appoint the
attorney by specifying the attorney’s qualifications and stating the reasons the trial judge has
determined that the attorney is competent to serve as either lead counsel or co-counsel.
B. Counsel for Indigent Defendants. The trial court shall ensure that representation of indigent
defendants has been arranged in conformity with the law. See OCGA § 17-12-1 et seq.
C. First Proceeding. At the earliest possible opportunity after indictment and before arraignment,
the court shall confer with the prosecuting attorney and defense counsel.
The following matters shall be concluded during the first proceeding:

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1. The prosecuting attorney shall state whether he or she intends to seek the death penalty. If the
prosecuting attorney intends to seek the death penalty, a written notice of such intention shall be
prepared and filed with the clerk of the superior court. Within ten days of receiving this notice, the
clerk of the superior court shall send a copy to the clerk of the Supreme Court. (If the prosecuting
attorney does not seek the death penalty, these procedures and the Checklist are not applicable. If
the prosecuting attorney later abandons seeking the death penalty, the defendant has proven that
he or she is intellectually disabled during a pre-trial proceeding or during the trial, or the sentencing
jury returns a verdict of life imprisonment, these procedures and the Checklist are no longer
applicable. In such cases, the clerk of the superior court shall notify the clerk of the Supreme Court
that these procedures and the Checklist are no longer applicable and the reason.)
2. Defense counsel shall be identified, it shall be made a matter of record whether they are retained
or appointed, and, if appointed, the qualifications required by Rule II(A)(1) or the fact that an
exception for good cause has been granted under Rule II(A)(3) shall be specifically reported.
3. The Unified Appeal Procedure, as amended, shall be published on the Supreme Court website
(www.gasupreme.us). Copies of this procedure shall be given to the defendant, defense counsel,
and the prosecuting attorney, all of whom shall be instructed to read and adhere to its provisions.
A copy also shall be given to the reporter for inclusion in the record. The reporter shall be reminded
that the trial shall be completely transcribed as set forth in Rule IV(A). Defense counsel shall be
instructed that the Outline and Checklist are intended to assist them in protecting the defendant's
rights, but it remains the responsibility of defense counsel to protect those rights; the Outline and
Checklist do not take the place of diligent counsel actively representing the defendant.
4. Defense counsel shall be reminded of the defendant’s option to invoke the provisions of
Georgia’s Criminal Procedure Discovery Act, OCGA § 17-16-1 et seq. If the defendant elects to
participate in reciprocal discovery, both parties shall be reminded that the information provided
shall be accurate and complete. If the defendant files a pre-trial notice of intent to raise a claim of
intellectual disability, the court shall remind the parties of their discovery obligations under OCGA
§ 17-7-128(d).
5. The court shall determine whether the defendant intends to present a challenge to the
composition of the applicable county master jury list or the manner in which the grand or traverse
jury is drawn. Any such challenge shall be heard at the earliest possible time consistent with the
court’s calendar and with the right of the defendant to seek a continuance. The court shall hear the
asserted factual and legal basis of a challenge regardless of whether the right to raise the challenge
may have been waived.
6. The county’s use of a county master jury list produced pursuant to the Jury Composition Rule
shall establish a prima facie case that the list represents a fair cross-section of the community. This
provision shall not be construed to deprive the defendant of any rights under the Constitution of
the United States or the Georgia Constitution.

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7. The court shall give the defendant an opportunity to state any objections to defense counsel or
to the manner in which defense counsel have conducted or are conducting the defense.
8. The court shall review Part I of the Checklist with defense counsel and the prosecuting attorney
to determine which pre-trial issues the defendant intends to raise. If the defendant intends to raise
a claim of intellectual disability and moves the court for a pre-trial hearing on that issue, the trial
court may in its discretion schedule a hearing on that issue. See OCGA § 17-7-128(c)(1). If the
state and the defendant jointly move for a pre-trial hearing on the defendant’s claim of intellectual
disability, the trial court shall schedule the hearing. See OCGA § 17-7-128(c)(2). Hearings shall
be scheduled for any other issues the defense wishes to present. The defendant shall be reminded
that issues not raised may be waived if not timely presented.
9. The court shall instruct defense counsel to locate and interview all persons whose testimony
might be helpful in discovering or supporting (1) available theories of defense, (2) a claim of
intellectual disability (if pursued), or (3) available theories in mitigation of punishment.
10. The court shall schedule for an appropriate time an arraignment and plea on the merits of the
indictment.
D. Motion Hearing. At an appropriate time consistent with the court’s calendar and with the right
of the defendant to seek a continuance, the court shall conduct a motion hearing. The hearing shall
precede trial of the case.
The following matters shall be concluded during the motion hearing:
1. Except in the case of the defendant’s unilateral motion for a pre-trial hearing to address whether
the defendant has an intellectual disability, which is within the trial court’s discretion to grant, all
motions previously filed shall be heard.
2. The court shall review Part I of the Checklist with defense counsel and the prosecuting attorney
to determine if there are possible pre-trial issues that have not been raised. The court shall
determine during this conference whether defense counsel intend to allow the deadline for raising
of any such issue to pass without presenting the issue for decision. If so, the court shall question
defense counsel in the presence of the defendant to determine whether defense counsel have
explained the defendant’s rights regarding that issue and whether defense counsel and the
defendant have agreed not to assert the issue.
3. The court shall remind defense counsel to be prepared to present evidence during the sentencing
phase, the intellectual disability phase (if applicable), as well as the guilt-innocence phase of the
trial.

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4. The court shall give the defendant an opportunity to state any objections to defense counsel or
to the manner in which defense counsel have conducted or are conducting the defense.
5. The court reporter shall be advised that all pre-trial proceedings and hearings should be
transcribed prior to trial.
E. Forms For Required Jury Certificates (superseded by the Jury Composition Rule).
F. Pre-trial Intellectual Disability Hearing.
1. In the event that the defendant has filed pre-trial notice of his or her intent to raise a claim of
intellectual disability, a pre-trial hearing on the issue may be conducted upon motion of the
defendant, at the discretion of the court, or shall be conducted upon joint consent motion of the
parties. If a pre-trial intellectual disability hearing has been granted, the court shall conduct a
hearing and, acting as the finder of fact, make a determination of whether the defendant has shown
by a preponderance of the evidence that he or she is intellectually disabled. See OCGA § 17-7-128.
2. If the court concludes that the defendant has met his or her burden to demonstrate intellectual
disability, the court shall enter an order so stating and bar the state from seeking the death penalty.
3. If the court concludes that the defendant has not met his or her burden to demonstrate intellectual
disability, the court shall enter an order so stating. However, the defendant is not precluded from
raising the issue of his or her alleged intellectual disability in further proceedings. In such case, the
defendant may raise the issue of his or her alleged intellectual disability as set forth in OCGA §
17-7-131(b)(2) or OCGA § 17-7-131(c)(2).
4. Either party may seek immediate review of the trial court’s determination regarding intellectual
disability pursuant to OCGA § 5-6-34(b) or OCGA § 5-7-1.
G. Pre-trial Review Hearing.
1. After the completion of all pre-trial proceedings, the trial court shall conduct a hearing to
determine if an interim appellate review of pre-trial rulings is appropriate. The trial court shall hear
from the state and the defense as to whether the delay to be caused by interim appellate review
outweighs the need for such review. If the trial court concludes that interim appellate review would
not serve the ends of justice in the case, the trial court shall enter an order so stating and declaring
the case stands ready for trial. An order obviating interim appellate review shall not be appealable.
See OCGA § 17-10-35.2.
2. If the trial court concludes that interim appellate review of the pre-trial proceedings is
appropriate, the trial court shall order such review and initiate the procedure by filing in the office
of the clerk of superior court and delivering to the parties a report certifying that all pre-trial

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proceedings in the case have been completed. See OCGA § 17-10-35.1. The report of the trial court
shall state whether there is arguably any reversible error with respect to any of the following
matters:
a. Any proceedings with respect to change of venue;
b. Any proceedings with respect to recusal of the trial judge;
c. Any challenge to the jury array;
d. Any motion to suppress evidence;
e. Any motion to exclude statements by the defendant;
f. Any motion for psychiatric or other mental or physical evaluation;
g. Any proceedings with respect to a pre-trial determination of intellectual disability;
h. Any motion for additional legal, investigative, or expert assistance; and
i. Any other pre-trial matter that may arguably result in reversible error.
j. If the trial court determines that there is arguably any reversible error with respect to any ex parte
proceedings, the report of the trial court shall so state and shall identify the issue in a manner that
does not disclose ex parte communications.
3. Within ten days after the filing of the report of the trial court or the filing of the transcripts of
the proceedings, whichever is later, the prosecutor and the defendant may each seek review of any
areas of the pre-trial proceedings in which reversible error may arguably have occurred by filing
with the clerk of the superior court, and not in the Supreme Court, a report on the appropriateness
of interim review. Either party may consolidate with such a report an application to appeal any
order, decision, or judgment entered in the case. Any application for appeal shall be in the form of
a petition and shall set forth the need for such an appeal and the issue or issues to be resolved.
a. The application shall include citations to those portions of the record that pertain to each of the
issues as to which review is sought.
b. The application shall also include copies of the order or orders to be reviewed.
c. No certificate of immediate review shall be required for the filing of such an application for
appeal.
d. Copies of the report and/or application shall be served upon the opposing party and the Attorney
General in the manner prescribed by OCGA § 5-6-32, except that such service shall be perfected
at or before the filing of the report and/or application.
4. The time for filing a report and/or application may be extended by the trial court upon a showing
of good cause for doing so. No requests for extensions of time for filing a report and/or application
shall be filed in the Supreme Court.
5. The opposing party shall not be required or permitted to respond in the superior court to an
application for appeal.

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6. Any application for appeal that seeks review of any order, decision, or judgment entered ex parte
shall so state and shall identify the issue in a manner that does not disclose confidential
information. Such application shall be accompanied by a separate ex parte application in the form
described above. Copies of the separate ex parte application shall not be served on the opposing
party or the Attorney General.
7. Upon the filing of the reports and/or applications by both parties, or upon the expiration of the
time for filing as may have been extended by the trial court, the clerk of the superior court shall
immediately transmit to the Supreme Court a copy of the entire record, including the report of the
trial court and any reports and/or applications of the parties. A copy of all of the foregoing shall
also be delivered by the clerk of the superior court to the Attorney General, except the clerk of the
superior court shall transmit to the Supreme Court under seal any ex parte proceedings in the record
without furnishing a copy to the Attorney General.
H. Forms for Pre-trial Reports.
Report of the _____________________________________ (Judge, District Attorney, or Defense
Counsel)
Is there arguably reversible error with respect to any of the following matters? If so, describe the
pertinent factual and legal issues:
(1) Any proceedings with respect to change of venue;
(2) Any proceedings with respect to recusal of the trial judge;
(3) Any challenge to the jury array;
(4) Any motion to suppress evidence;
(5) Any motion to exclude statements by the defendant;
(6) Any motion for psychiatric or other mental or physical evaluation;
(7) Any proceedings with respect to a pre-trial determination of intellectual disability;
(8) Any motion for additional legal, investigative, or expert assistance; and
(9) Any other pre-trial matter that may arguably result in reversible error.
(10) If the trial court or defense counsel determines that there is arguably any reversible error
with respect to any ex parte proceedings, the report of the trial court or defense counsel shall so
state and shall identify the issue in a manner that does not disclose ex parte communications.
I. Pre-trial Review in the Supreme Court.
1. The Supreme Court shall issue an order granting review of the pre-trial proceedings, or portions
thereof, or denying review within 45 days of the date on which the case is docketed. The order of
the Supreme Court shall identify the matters that shall be subject to review, and such matters may
include, but need not be limited to, any matters called to the court’s attention in any of the reports
and/or applications for appeal.

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2. If review is granted by the Supreme Court, no notice of appeal need be filed. The order granting
review shall specify the period of time within which each party shall file briefs and responsive
briefs as to matters identified in the order granting review. Oral argument in such an appeal will
be mandatory.
3. Pre-trial review of any matter as provided for herein, as to any question passed on in such review,
shall be res judicata as to such question and shall be deemed to be the law of the case.
4. This pre-trial review procedure shall not apply to any ruling or order made, invoked, or sought
subsequent to the filing of the report of the trial court.
5. The failure of either party to assert its rights under this pre-trial review procedure, or the failure
of the Supreme Court to grant review, shall not affect the right to post-trial review of any question
that could be raised under this procedure, and shall not constitute an adjudication as to such
question.
RULE III. TRIAL PROCEEDINGS
A. Guilt/Innocence Phase.
1. Before Commencement of Trial. Immediately before trial, the court shall confer with the
prosecuting attorney and defense counsel.
The following matters shall be concluded during the conference:
a. All pending motions shall be heard.
b. The court shall determine whether there are any last-minute motions the defense wishes to
present and give the prosecuting attorney and defense counsel an opportunity to present any
stipulations to which they have agreed.
c. The court shall ascertain whether counsel for both sides have reviewed Part III(A) through (H)
of the Checklist and are prepared to raise any possible trial issues in a timely manner.
d. The court shall give the defendant an opportunity to state any objections he or she may have to
defense counsel or to the manner in which defense counsel have conducted or are conducting the
defense.
2. After Close of the Evidence. After close of the evidence, but before closing arguments, the court
shall confer with the prosecuting attorney and defense counsel.
The following matters shall be concluded during the conference after close of the evidence:
a. Written requests to charge shall be presented to the court for rulings.
b. The court shall make a final ruling on any issues as to which a tentative ruling or no ruling was

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made during the presentation of the evidence.
c. The court shall hear any timely and otherwise proper motions or objections the defense wishes
to present. Defense counsel shall be given an opportunity to perfect the record by making a tender
of proof as to any evidence that was excluded by the court.
d. The court shall ascertain whether the parties have reviewed Part III(I) through (Q) of the
Checklist and are prepared to raise these issues in a timely manner. Defense counsel shall be
advised that objections to the state’s closing argument will be waived if not raised as soon as
grounds for such objection arise, unless explicit permission is granted to reserve objection until
the conclusion of argument.
e. The court shall give the defendant an opportunity to state any objections he or she may have to
defense counsel or to the manner in which defense counsel have conducted or are conducting the
defense.
3. After Charge of the Court. After charge of the court, the court shall confer with the prosecuting
attorney and defense counsel.
The following matters shall be concluded during the conference after charge of the court:
a. Any issue as to arguments of counsel or as to the charge of the court shall be presented and
decided.
b. The court shall hear any timely and otherwise proper motions or objections the defense wishes
to present.
c. The court shall give the defendant an opportunity to state any objections he or she may have to
defense counsel or to the manner in which defense counsel have conducted or are conducting the
defense.
B. Intellectual Disability Phase (If Applicable).
1. Before Commencement of Intellectual Disability Phase. Immediately before the commencement
of the intellectual disability phase of the trial, if applicable, the court shall confer with the
prosecuting attorney and the defense counsel.
The following matters shall be taken up during the conference:
a. All pending motions shall be heard.
b. Defense counsel shall be given the opportunity to raise in limine any objections to the state’s
anticipated evidence. However, failure to object in limine shall not amount to a waiver of otherwise
timely objections to the introduction of evidence. The court shall give the prosecuting attorney and
defense counsel an opportunity to present any stipulations to which they have agreed.
2. After Close of the Evidence. After close of the evidence, but before closing arguments, the court
shall confer with the prosecuting attorney and defense counsel.

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The following matters shall be concluded during the conference after close of the evidence:
a. Written requests to charge shall be presented to the court for rulings.
b. The court shall make a final ruling on any issues raised during the intellectual disability phase
as to which a tentative ruling or no ruling was made during the presentation of the evidence.
c. The court shall hear any timely and otherwise proper motions or objections the defense wishes
to present. Defense counsel shall be given an opportunity to perfect the record by making a tender
of proof as to any evidence that was excluded by the court.
d. Defense counsel shall be advised that objections to the state’s intellectual disability phase
closing argument will be waived if not raised as soon as grounds for such objection arise, unless
explicit permission is granted to reserve objection until the conclusion of argument.
e. The court shall give the defendant an opportunity to state any objections he or she may have to
defense counsel or to the manner in which defense counsel have conducted or are conducting the
defense.
3. After Charge of the Court. After charge of the court, the court shall confer with the prosecuting
attorney and defense counsel.
The following matters shall be concluded during the conference after charge of the court:
a. Any issue as to arguments of counsel or as to the charge of the court shall be presented and
decided.
b. The court shall hear any timely and otherwise proper motions or objections the defense wishes
to present.
c. The court shall give the defendant an opportunity to state any objections he or she may have to
defense counsel or to the manner in which defense counsel have conducted or are conducting the
defense.
C. Sentencing Phase.
1. Before Commencement of Sentencing Phase. Immediately before the commencement of the
sentencing phase of the trial, the court shall confer with the prosecuting attorney and defense
counsel.
The following matters shall be taken up during the conference:
a. All pending motions shall be heard.
b. The court shall review Part IV of the Checklist with defense counsel and the prosecuting
attorney. Defense counsel shall be given the opportunity to raise in limine any objections to the
state’s anticipated evidence in aggravation. However, failure to object in limine shall not amount
to a waiver of otherwise timely objections to the introduction of evidence. The court shall give the
prosecuting attorney and defense counsel an opportunity to present any stipulations to which they
have agreed.

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c. In the event of a retrial as to sentence, the court shall also review Part VII of the Checklist with
defense counsel and the prosecuting attorney.
2. After Close of the Evidence. After the close of the evidence, but before closing arguments, the
court shall confer with the prosecuting attorney and defense counsel.
The following matters shall be concluded during the conference:
a. Written requests to charge shall be presented to the court for rulings.
b. The court shall make a final ruling on any issues raised during the sentencing phase of the trial
as to which a tentative ruling or no ruling was made during the presentation of the evidence.
c. The court shall again review Part IV of the Checklist with defense counsel and the prosecuting
attorney and shall hear any timely and otherwise proper motions or objections the defense wishes
to present. Defense counsel shall be given an opportunity to perfect the record by making a tender
of proof as to any evidence that was excluded by the court. If the court determines that a mistake
was made in the exclusion of potentially mitigating evidence, the court shall reopen the evidence
and allow its presentation to the jury.
d. Defense counsel shall be advised that objections to the state’s sentencing phase closing
argument will be waived if not raised as soon as grounds for such objection arise, unless explicit
permission is granted to reserve objection until the conclusion of argument.
e. The court shall give the defendant an opportunity to state any objections he or she may have to
defense counsel or to the manner in which defense counsel have conducted or are conducting the
defense.
3. After Charge of the Court. After charge of the court at the sentencing phase of the trial, the court
shall confer with the prosecuting attorney and defense counsel.
The following matters shall be concluded during the conference after the charge of the court:
a. The court shall review Part IV(D) and (E) of the Checklist with the prosecuting attorney and
defense counsel. Any issue as to arguments of counsel or as to the charge of the court shall be
presented and decided. Defense counsel shall be advised that any such issue not timely raised shall
be waived. Reservations of objections to the sentencing phase charge will not be permitted.
b. The court shall also review Part IV(F) of the Checklist with the prosecuting attorney and defense
counsel. Defense counsel shall be advised that objections to the form of the verdict must be raised
when the verdict is returned. The court shall note that a poll of the jurors is required.
c. The court shall give the defendant an opportunity to state any objections he or she may have to
defense counsel or to the manner in which defense counsel have conducted or are conducting the
defense.

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RULE IV. REVIEW PROCEEDINGS
A. In the Superior Court.
1. Filing of a Complete Transcript. Within 90 days from the jury’s verdict in the sentencing phase
of the proceedings, the court reporter shall file with the superior court a complete transcript of all
phases of the case unless the reporter has obtained an extension of time. Requests for extensions
of time for filing shall be directed to the Chief Justice of the Supreme Court; however, no extension
of time for filing the transcript shall exceed 60 days. For purposes of this rule, the term “complete
transcript” shall include a complete transcription of the following: all pre-trial hearings; the
selection of the jurors, including challenges for cause; the voir dire examination and the striking;
the opening statements and closing arguments of counsel; the examination of the witnesses; all
documentary evidence, including photographs; a copy of all video and audio recordings in the pretrial and trial records; all oral motions (whether pre-trial, during trial, or after trial) and all hearings
on oral and written motions; all oral objections and all hearings on oral and written objections; all
conferences and hearings of every description and for every purpose conducted between court and
counsel, including all bench and chamber conferences; all oral stipulations of counsel; the charges
of the court to the jury during the guilt-innocence, intellectual disability, if applicable, and
sentencing phases of the proceedings; the publication of the verdict and the polling of the jury; the
pronouncement of whether the defendant was found to have an intellectual disability, if applicable;
the pronouncement of sentence; and all oral comments, instructions, directions, admonitions,
rulings, and orders of the court in the case from the first proceeding through conclusion of the trial.
a. The filing of a motion for new trial is not a procedural prerequisite for review by the superior
court and the Supreme Court. A defendant may, but is not required to, file a motion for new trial.
A defendant may elect to proceed either by motion for new trial or direct appeal, or may allow the
case to be presented directly to the Supreme Court for review. The case nevertheless shall be
considered by the Supreme Court.
b. These rules shall not be construed so as to limit or restrict the grounds of review available
through motion for new trial, motion to withdraw a guilty plea, direct appeal, writ of habeas corpus,
or any other writ, motion, or proceeding cognizable in the courts of this state. It is, however, the
purpose of these rules to ensure that as many issues as possible that heretofore could be raised by
writ of habeas corpus or other post-trial procedure are timely raised before or during trial.
c. The procedures governing the writ of habeas corpus may be employed by any defendant to assert
rights and seek remedies if the procedures established by these rules are inadequate or ineffective
in any constitutional sense.
d. It is not the intent of these rules to permit any issues to be raised or presented in the superior
court or the Supreme Court that previously have been waived, procedurally defaulted, or
abandoned pursuant to the laws of this state or of the United States.
2. Motion for New Trial. The sole function of a motion for new trial shall be to bring to the attention
of the superior court after imposition of sentence such grounds as defense counsel may wish the

13

trial court to decide.
a. When the court reporter files the complete transcript, as described above, he or she shall notify
the trial judge and counsel. The hearing on the motion for new trial shall be taken down and
transcribed by the reporter.
b. Additional evidence may be heard under the rules applicable to extraordinary motions for new
trial or otherwise as necessary to perfect the record and to rule upon the motion for new trial.
c. The hearing on the motion for new trial shall not be limited to the grounds asserted by the
defendant.
d. Every defendant shall have the right to be represented by appointed or retained counsel in all
matters and at all times during the pendency of a motion for new trial.
e. Within 20 days of the hearing by the trial court, the court reporter shall file with the trial court a
complete transcript of the proceedings on the motion for new trial, unless the reporter has obtained
an extension of time in writing from the judge who imposed the death sentence. No extension of
time for filing the transcript shall exceed 15 days.
3. Transmission to the Supreme Court.
a. It shall be the duty of the superior court to transmit the entire record, the Report of the Trial
Judge required by OCGA § 17-10-35(a) (attached as an appendix to these rules) and the complete
transcript, as defined in Rule IV(A) above, to the Supreme Court for review regardless of whether
a notice of appeal has been filed.
(1) If no review proceedings have been commenced in the superior court, the superior court shall
transmit the case to the Supreme Court for review within ten days of the filing by the court reporter
of the complete transcript of trial.
(2) The superior court shall transmit the case to the Supreme Court for review within 30 days from
entry of an order denying a motion for new trial.
b. Except as provided in these rules, the appeal shall be presented, heard, and determined in
accordance with the rules of the Supreme Court and the Appellate Practice Act.
B. In the Supreme Court. Review proceedings in the Supreme Court shall be conducted in
accordance with the following rules:
1. At any time after the case is docketed in the Supreme Court, the superior court may be directed
by the Supreme Court to conduct further hearings, to hold additional conferences for specified
purposes, or to make additional findings of facts or conclusions of law in respect to issues raised
by the parties on appeal or perceived by the Supreme Court although not asserted by the defendant
or the state. Any such matter may be referred to the superior court for disposition according to a
timetable established by order of the Supreme Court. The Supreme Court shall retain jurisdiction
of the entire appeal, unless otherwise specified by order, notwithstanding the referral to the

14

superior court, and may take such actions in respect thereto as are necessary or proper pending a
decision by the superior court on the matter or matters referred.
2. In all cases, the Supreme Court shall determine whether the verdicts are supported by the
evidence according to law. The Supreme Court shall review each of the assertions of error timely
raised by the defendant during the proceedings in the trial court regardless of whether an assertion
of error was presented to the trial court by motion for new trial and regardless of whether error is
enumerated in the Supreme Court. However, except in cases of plain error, 1 assertions of error not
raised on appeal shall be waived. The Supreme Court may direct defense counsel and the state to
brief and argue any or all additional grounds.

In the context of the UAP, the Supreme Court has defined “plain error” as “that which is ‘so clearly erroneous as to
result in a likelihood of a grave miscarriage of justice’ or which ‘seriously affects the fairness, integrity or public
reputation of a judicial proceeding.’” Lynd v. State, 262 Ga. 58, 61 n.2 (1992) (quoting United States v. Fuentes-Coba,
738 F2d 1191, 1196 (11th Cir. 1984)).

1

15

CHECKLIST
The following is a checklist of frequently arising issues that trial courts and counsel should
consider in death penalty trials. It would be impossible to produce an exhaustive list of the issues
that might arise at trial, and this checklist, including the citations provided regarding matters
specific to the sentencing phase, should not be treated as a substitute for independent research and
professional judgment in individual cases.
PART I. PRE-TRIAL
A. Arrest
1. With warrant
2. Without warrant
a. In public place
b. In home
3. Investigative detentions
a. Reasonable and articulable suspicion
b. Limited in scope
B. Search and Seizure
1. With warrant
a. Sufficiency of description
b. Sufficiency of probable cause
c. Scope of permissible search
2. Without warrant
a. Expectation of privacy; standing
b. Search of person
(1) Incident to arrest
(2) Inventory search of personal effects prior to incarceration
(3) Limited search during investigative detention
(4) Consent search
c. Search of vehicle
(1) Protective search during lawful investigative stop
(2) The “plain view” doctrine
(3) Incident to arrest
(4) Inventory search of seized automobile
d. Search of premises
(1) Incident to arrest
(2) Probable cause and exigent circumstances
3. Of a probationer’s person or premises
4. Electronic surveillance
a. Federal statutes
b. Georgia statutes

16

5. Motion to suppress
a. Form of motion
b. Timing of motion
C. Identification of Defendant
1. Of defendant
2. Of defendant’s voice
D. Confessions and Admissions
1. Applicability of Miranda
2. Assertion of right to counsel
3. Invocation of right to remain silent
4. Confessions and admissions of co-conspirators
5. Confessions and admissions during psychiatric examination
6. Confessions obtained after illegal arrest
7. Voluntariness of confession
E. Bail
F. Representation by Counsel
1. Right to counsel
2. Right of self-representation
3. No absolute right of indigent to appointment of attorney of own choosing
4. Factors favoring continuation of existing representation
5. Effective assistance of counsel
a. General standard
b. Includes meaningful access to attorney
c. Conflicts of interest
G. Demurrers, Motions to Quash, and Special Pleas
1. Special versus general demurrers
H. Arraignment
1. Notice
2. Guilty plea
a. Competence and advisement of rights
b. Plea to lesser offense
c. Plea without admission of actual guilt
d. Jury trial as to sentence after guilty plea
e. Withdrawal of plea
I. Pleas in Bar
1. Double jeopardy
a. Denial of timely-filed plea of double jeopardy appealable prior to trial
b. Aggravating circumstances (see below)
2. Statute of limitations
3. Speedy trial
a. Statutory right

17

b. Constitutional right
J. Defendant’s Mental Condition
1. Motion for mental examination
2. Defendant’s competence to stand trial; jury trial on competence; trial court’s duty
to inquire if competence seems to be in question
3. Defendant’s mental condition at the time of the offense
a. Not guilty by reason of insanity
b. Guilty but mentally ill; does not bar death sentence
c. Guilty but intellectually disabled; bars death sentence
4. Ex parte hearings regarding funds
5. Pre-trial notice and hearing on intellectually disability
a. OCGA § 17-7-128; UAP Rule II(F)
K. Discovery
1. Statutory rights of discovery
2. State’s constitutional duty to disclose evidence favorable to defendant
3. State’s failure to preserve evidence
4. In-camera inspection by trial court
5. Independent examination of evidence by a defense expert
L. Motion for Severance
1. Severance of co-defendant’s case when death penalty sought
2. Severance of multiple offenses
M. Motion to Recuse
1. Judge
2. Prosecutor
N. Continuances
1. Absence of witness
2. Absence of attorney
3. Other reasons
O. Motions Regarding Publicity
1. Change of venue
2. “Gag orders”
3. Motion for closed hearing
P. Jury Composition Challenges
1. Statutory
2. Sixth Amendment
3. Equal Protection Clause of Fourteenth Amendment
4. Measuring under-representation
5. Cognizability of under-represented group
6. Time for interposing challenge

18

PART II. INTERIM REVIEW
A. Proceedings in the Trial Court
1. OCGA §§ 17-10-35.1; 17-10-35.2; UAP Rule II(G) and (H)
B. Proceedings in the Supreme Court
1. OCGA § 17-10-35.2; UAP Rule II(I)
PART III. TRIAL PROCEEDINGS: GUILT/INNOCENCE PHASE
A. Voir Dire
1. Individual voir dire
2. Request for sequestered voir dire
3. Scope of examination
4. Challenges for cause
a. Generally
b. Bias for or against the death penalty: Wainwright v. Witt, 469 U.S. 412 (1985)
c. Disqualification of law enforcement officers upon defense motion
d. Pre-trial publicity
5. Peremptory challenges
6. Racial discrimination
7. Gender discrimination
B. Opening Statements
C. Sequestration of Witnesses
D. Hearings Outside the Presence of the Jury
1. Admissibility of defendant’s statement
2. Motion to quash in-court identification
E. Issues that May Arise Regarding Admissibility of Evidence
1. Relevance
2. Videotapes
3. Audiotapes
4. Photographs
a. Authentication
b. Autopsy photographs
c. Trial court’s discretion to exclude photos with insufficient probative value
5. Documents
a. Public
b. Private
c. Handwriting
6. Tangible objects
a. Chain of custody
7. Best evidence rule
8. Character evidence
a. General criminal law considerations

19

b. Rules of admissibility in the guilt/innocence phase versus the sentencing phase
c. Victim’s character
9. Scientific evidence
10. Opinion evidence
a. Lay witnesses
b. Expert witnesses
11. Hearsay
a. Definition
b. Exceptions
12. Privileged communications
F. Examination of Witnesses
1. Competence of witnesses
a. Generally
b. Children
c. Interpreters
2. Direct examination
a. Leading questions
3. Cross-examination
a. Cross-examination of state witnesses regarding pending criminal charges
b. Right to thorough and sifting cross-examination
4. Re-direct/re-cross-examination
G. Motions for Mistrial and for Curative Instructions
1. Time for motion
2. Discretion of the trial court
3. Renewing motion for mistrial after curative instruction
H. Motion for Directed Verdict of Acquittal
I. Re-opening the Evidence
J. Closing Argument
1. Injection of matters not in evidence
2. Restriction of argument of defense counsel
3. Prosecutorial comment on pre-trial silence of accused
4. Prosecutorial comment on defendant’s failure to testify
5. Prosecutorial comment on the failure of the defendant’s spouse to testify
6. Expression of personal opinion as to defendant’s guilt
7. Reading the law versus discussing law that will be charged
8. Improper to argue future dangerousness or victim impact
9. “Golden Rule” argument
10. Objections must be raised at trial
K. Charge of the Court
1. Requests to charge
2. Lesser included offenses

20

a. When evidence fails to warrant such a charge
b. Improper sequential charges
3. Presumptions
a. Except for sanity and innocence, charge should not be cast in terms of
presumptions
b. Permissible inferences
4. Charges on confessions and admissions
5. Exceptions to charges should be raised before jury retires to deliberate
L. Conduct of the Judge
1. Expressions of opinion by trial court are forbidden
2. Control of counsel
a. Correction of misstatement of law by defense counsel
b. Rebuke of counsel for improper conduct
3. Physical control of defendant
4. Examination of the witnesses by the trial court
5. Coercion of jury forbidden
6. Judicial comment on the defendant’s failure to testify forbidden
7. Contempt power of court
M. Conduct of Counsel
1. Ethical considerations
2. Attorney-client privilege
N. Conduct of Jurors
1. Jury’s knowledge of co-defendant’s guilty plea
2. Communications with non-jurors
3. Unauthorized dispersal of jurors
4. Jury sequestration
5. Jurors not permitted to directly question witness
6. Jury request to rehear evidence
7. Jury request to be recharged
8. Alternate jurors not to deliberate with jury
O. Conduct of Witness
1. Violation of the rule of sequestration
2. Corrective measures versus barring testimony
P. Conduct of the Defendant
1. Voluntary absence of the defendant
2. Disruptive defendant
3. Right to assist in the defense
Q. Verdict
1. Form
2. Poll of jurors

21

PART IV. TRIAL PROCEEDINGS: SENTENCING PHASE
A. Opening Statements
1. Opening statements required upon request: O’Kelley v. State, 284 Ga. 758, 765–69
(2008)
B. Issues that May Arise Regarding the Admissibility of Evidence
1. General considerations applicable to evidence in mitigation and aggravation
a. Jury may consider all facts and circumstances of the case: Spivey v. State, 241
Ga. 477, 481 (1978); OCGA § 17-10-2
b. Evidence may not be excluded because it could have been presented in
guilt/innocence phase but was not: Brown v. State, 235 Ga. 644, 647–50 (1975)
c. Evidence may not be excluded as only relevant to guilt or innocence:
Blankenship v. State, 251 Ga. 621, 624 (1983)
2. Admissibility of mitigation evidence
a. Scope: Barnes v. State, 269 Ga. 345, 357–61 (1998)
b. Rules of evidence are relaxed but not suspended in the sentencing phase:
Gissendaner v. State, 272 Ga. 704, 714 (2000)
c. Testimony of friends or relatives asking for mercy admissible: Barnes v. State,
269 Ga. 345, 359 (1998)
d. Mental health testimony admissible
e. Examples of improper testimony or other evidence
(1) Death penalty is not a deterrent: Stevens v. State, 247 Ga. 698, 709 (1981)
(2) Religious/philosophical approaches to death penalty: Franklin v. State,
245 Ga. 141, 151–52 (1980), overruled on other grounds as recognized by Young v. State, 290 Ga.
392, 395 (2012)
(3) Mechanics of execution: Franklin v. State, 245 Ga. 141, 151–52 (1980),
overruled on other grounds as recognized by Young v. State, 290 Ga. 392, 395 (2012)
(4) Sentences imposed by juries in similar cases: Wilson v. State, 250 Ga.
630, 638–39 (1983)
(5) Defendant’s offer to plead guilty: Mobley v. State, 265 Ga. 292, 298–300
(1995)
3. Admissibility of aggravating evidence: OCGA § 17-10-2
a. Evidence of non-statutory aggravating circumstances admissible: Hicks v. State,
256 Ga. 715, 727 (1987)
b. Prior guilty verdicts and independent proof of prior crimes admissible: Mize v.
State, 269 Ga. 646, 657–58 (1998); Hammond v. State, 260 Ga. 591, 597 n. 4 (1990)
c. Proof of conviction resulting from plea: Mize v. State, 269 Ga. 646, 657 (1998)
d. Victim impact evidence about the victim’s life and the impact of the victim’s loss
admissible: OCGA § 17-10-1.2; Turner v. State, 268 Ga. 213, 214–15 (1997)
e. Testimony concerning a witness’s opinions about the crime, the defendant, and
the appropriate sentence impermissible: Bryant v. State, 288 Ga. 876, 895–98 (2011)
C. Issues Concerning Specific Statutory Aggravating Circumstances: OCGA § 17-10-30(b)
1. Aggravating Circumstance (b)(1)

22

a. Establishing validity of prior convictions: Pope v. State, 256 Ga. 195, 209–10
(1986), overruled on other grounds by Nash v. State, 271 Ga. 281, 281 (1999)
b. (b)(1) status determined at time of sentencing rather than time of offense:
Stephens v. Hopper, 241 Ga. 596, 602–03 (1978)
c. May be established by proof of out-of-state convictions that clearly are
comparable to Georgia capital felony offenses: Moon v. State, 258 Ga. 748, 752 (1988)
d. Age of a conviction is no ground for exclusion: Cook v. State, 255 Ga. 565, 576
(1986)
2. Aggravating Circumstance (b)(2)
a. “Capital felony” defined: Waters v. State, 248 Ga. 355, 368–69 (1981)
b. Aggravated battery must be separate from act causing instantaneous death:
Davis v. State, 255 Ga. 588, 593–94 (1986)
c. The supporting capital felony must be defined: Rivers v. State, 250 Ga. 303, 310
(1982)
d. No requirement that the defendant be charged with or convicted of the supporting
capital felony or that the supporting capital felony be completed: Brockman v. State, 292 Ga. 707,
710–12 (2013)
e. Continuous course of conduct may establish “in commission of” element of
(b)(2) aggravating circumstance: Romine v. State, 251 Ga. 208, 214 (1983)
f. Mutually supporting aggravating circumstances may be presented to and found
by the jury, regardless of their treatment on appeal: Heidler v. State, 273 Ga. 54, 65–66 (2000)
3. Aggravating Circumstance (b)(3)
a. Defined: Pope v. State, 256 Ga. 195, 210–11 (1986), overruled on other grounds
by Nash v. State, 271 Ga. 281, 281 (1999)
4. Aggravating Circumstance (b)(4)
a. Distinction between (b)(4) and (b)(2) aggravating circumstances: Simpkins v.
State, 268 Ga. 219, 220–23 (1997)
5. Aggravating Circumstance (b)(5)
6. Aggravating Circumstance (b)(6)
a. Applies where defendant directs a follower who acts without any payment: Mize
v. State, 269 Ga. 646, 656–57 (1998)
b. Does not apply where defendant acted at another’s behest but was “not hired”
by the defendant: Whittington v. State, 252 Ga. 168, 178 (1984)
7. Aggravating Circumstance (b)(7)
a. Scope: McMichen v. State, 265 Ga. 598, 601–03 (1995);
Whittington v. State, 252 Ga. 168, 178–79 (1984); Hance v. State, 245 Ga. 856, 860–63 (1980),
disapproved on other grounds by Clark v. State, 315 Ga. 423, 435 n.16 (2023).
b. Suggested charge: West v. State, 252 Ga. 156, 161–62 (1984)
8. Aggravating Circumstance (b)(8)
a. Scope: Fair v. State, 288 Ga. 244, 245–50 (2010); Fair v. State, 284 Ga. 165,
167–70 (2008)

23

9. Aggravating Circumstance (b)(9)
a. Evidence to prove lawful custody or confinement: Franklin v. State, 245 Ga.
141, 150 (1980), overruled on other grounds as recognized by Young v. State, 290 Ga. 392, 395
(2012)
10. Aggravating Circumstance (b)(10)
a. Scope: Humphreys v. State, 287 Ga. 63, 83–84 (2010), disapproved on other
grounds by Willis v. State, 304 Ga. 686, 706 n.3 (2018)
11. Aggravating Circumstance (b)(11)
D. Issues that May Arise in Connection with Closing Argument
1. Scope of closing argument generally: Conner v. State, 251 Ga. 113, 117–23 (1983)
2. Prosecutorial reference to appellate review forbidden: Caldwell v. Mississippi, 472 U.S.
320 (1985); Smith v. State, 270 Ga. 240, 246–48 (1998), overruled on other grounds by O’Kelley
v. State, 284 Ga. 758, 768 (2008)
3. Impermissible reading of the law versus proper references to the law: Wilson v. State,
271 Ga. 811, 820 (1999), overruled on other grounds by O’Kelley v. State, 284 Ga. 758, 768 (2008)
4. Arguments regarding deterrence and lack of remorse: McClain v. State, 267 Ga. 378, 385
(1996); Sears v. State, 262 Ga. 805, 808 (1993), disapproved on other grounds by Brogdon v. State,
287 Ga. 528, 531 (2010)
5. Arguments regarding future dangerousness permissible only if supported by proper
evidence: Henry v. State, 278 Ga. 617, 618–20 (2004)
6. Arguments setting forth statutory definition of parole permissible: OCGA § 17-10-31(b);
Jenkins v. State, 265 Ga. 539, 540 (1995)
7. Impropriety of extreme language disparaging the defendant: Edenfield v. State, 293 Ga.
370, 391–92 (2013), disapproved on other grounds by Willis v. State, 304 Ga. 686, 706 n.3 (2018)
E. Issues that May Arise in Connection with the Court’s Charge
1. Charge on mitigating circumstances
a. Generally: Romine v. State, 251 Ga. 208, 214–16 (1983)
b. Jury should be instructed that it is authorized to consider mitigating evidence, but
the trial court is not required to identify specific mitigating circumstances: Davis v. State, 255 Ga.
598, 612 (1986)
c. Jury should be informed that it may recommend a life sentence even if it finds
one or more statutory aggravating circumstances: Spivey v. State, 241 Ga. 477, 481 (1978); Fleming
v. State, 240 Ga. 142, 146–47 (1977)
d. Jury must not be charged that it should disregard “sympathy”: Legare v. State,
250 Ga. 875, 877–78 (1983), overruled on other grounds by Humphreys v. State, 287 Ga. 63, 82
(2010)
2. Jury can consider all the evidence presented in both phases of the trial: Ross v. State, 254
Ga. 22, 31 (1985), overruled on other grounds by O’Kelley v. State, 278 Ga. 564, 567 (2004)
3. Necessity to define legal words of art: Rivers v. State, 250 Ga. 303, 310 (1982)
4. Any Allen charge should be modified to fit sentencing phase: Humphreys v. State, 287
Ga. 63, 80–82 (2010), disapproved on other grounds by Willis v. State, 304 Ga. 686, 722 (2018)

24

5. Statutory instructions to be provided to jury in writing: OCGA § 17-10-30(c)
F. Issues that May Arise in Connection with the Verdict
1. Form: OCGA § 17-10-30(c); Potts v. State, 259 Ga. 96, 104 (1989); Romine v. State, 251
Ga. 208, 212–13 (1983)
2. Substance:
a. Aggravating Circumstance (b)(2)
(1) “Kidnapping with bodily injury,” rather than simple “kidnapping,”
required to serve as a statutory aggravating circumstance: Crawford v. State, 254 Ga. 435, 440–41
(1985)
b. Aggravating Circumstance (b)(7)
(1) Requires both a finding that the murder was “outrageously or wantonly
vile, horrible or inhuman” and a finding of at least one of the subparts of the second portion of the
statutory circumstance: Jarrell v. State, 261 Ga. 880, 882–83 (1992); Hall v. State, 261 Ga. 778,
783 (1991)
(2) A finding of multiple subparts of the second portion of the statutory
circumstance must indicate unanimity regarding each subpart and, therefore, must not be in the
disjunctive: Rivera v. State, 282 Ga. 355, 366 (2007)
c. Submission of mutually supporting aggravating circumstances permitted,
regardless of their treatment on appeal: Jenkins v. State, 269 Ga. 282, 294 (1998)
3. Poll of jurors required: UAP Rule III(C)(3)(b)
PART V. MOTION FOR NEW TRIAL
A. Supplementation of the Record
1. OCGA § 5-6-41(f)
B. Presentation of New Evidence
1. UAP Rule IV(A)(2)(b); Mincey v. State, 251 Ga. 255, 272–74 (1983)
2. Ineffective assistance claims must be raised if original trial counsel are no longer
representing the defendant: Hall v. Lewis, 286 Ga. 767, 769 (2010)
PART VI. REVIEW IN THE SUPREME COURT
A. Superior Court Can be Directed to Conduct Further Hearings
1. UAP Rule IV(B)(1); Hammond v. State, 260 Ga. 591, 599–600 (1990)
B. “Plain Error” Review in Death Penalty Cases
1. UAP Rule IV(B)(2); Lynd v. State, 262 Ga. 58, 60–61; OCGA § 24-1-103
C. Mandatory Review of All Death Sentences
1. OCGA § 17-10-35
PART VII. RETRIAL AS TO SENTENCE
A. When Permitted
1. Permitted: Griffin v. State, 266 Ga. 115, 119–21 (1995), disapproved on other grounds
by Washington v. State, 276 Ga. 655, 658 (2003); Brooks v. State, 259 Ga. 562, 562–63 (1989)

25

2. Not Permitted: Bullington v. Missouri, 451 U.S. 430 (1981); Hill v. State, 250 Ga. 821

(1983)
B. Evidence
1. State not limited to statutory aggravating circumstances found at first trial: Poland v.
Arizona, 476 U.S. 147 (1986); Spraggins v. State, 255 Ga. 195 (1985)
2. Defendant may introduce exculpatory evidence even though he stands convicted:
Blankenship v. State, 251 Ga. 621 (1983)

26

APPENDIX
REPORT OF THE TRIAL JUDGE
OF THE
SUPERIOR COURT OF _____________________________COUNTY, GEORGIA
THE STATE v. ________________________________________________________________
(A case in which the death penalty was imposed)
A. DATA CONCERNING THE DEFENDANT
1. Name: _____________________________________ 2. Date of Birth: ________________
Last
First
Middle
MM/DD/YYYY
3. Sex: M [ ]
4. Race:
Black [ ]
F[]
White [ ]
Other________________
5. Marital status: Never married [ ] Married [ ]
Separated [ ]
Divorced [ ]
Spouse deceased [ ]
6. Number of children:______; and ages: ___________________________________________
7. Father living: Yes [ ] No [ ], died _______________________________________________
Mother living: Yes [ ] No [ ], died _______________________________________________
8. Number of brothers and sisters: _________________________________________________
9. Education completed: _________________________________________________________
10. Intelligence level: (IQ below 70)
Low [ ]
(IQ 70 to 100)
Medium [ ]
(IQ above 100)
High [ ]
11. Psychiatric evaluation performed? Yes [ ] No [ ]
If performed, is defendant:
Yes
No
a. Able to distinguish right from wrong?
[]
[]
b. Able to adhere to the right?
[]
[]
c. Able to cooperate intelligently in his own defense?
[]
[]
12. If examined, were character or behavior disorders found?
Yes [ ]
No [ ]
13. What other pertinent psychiatric (and psychological) information was revealed?
_____________________________________________________________________________
14. Prior work record of defendant:
Type job
Salary
Dates held
Reason for termination
a. ______________ ________
______________
_____________________________
b. ______________ ________
______________
_____________________________
c. ______________ ________
______________
_____________________________
d. ______________ ________
______________
_____________________________

A-1

e. ______________

________

______________

_____________________________

B. DATA CONCERNING THE TRIAL
1. How did the defendant plead? ________________________________________________
2. Was the guilt/innocence phase of the case tried before a jury? _______________________
3. Was the intellectual disability phase, if applicable, tried before a jury? ________________
4. Was the sentencing phase tried before a jury? ____________________________________
C. OFFENSE RELATED DATA
1. Offense(s) for which the defendant received a death sentence:
a. ____________________________________ b. ____________________________________
c. ____________________________________ d. ____________________________________
2. If other offenses were tried in the same trial, list those offenses:
a. ____________________________________ b.____________________________________
c. ____________________________________d.____________________________________
3. Which of the following statutory aggravating circumstances were instructed and which were
found?
Instructed
Found
a. The offense of murder, rape, armed robbery, or
kidnapping was committed by a person with a prior
record of conviction for a capital felony.
b. (1) The offense of murder, rape, armed robbery,
or kidnapping was committed while the offender
was engaged in the commission of another capital
felony or aggravated battery; or
(2) The offense of murder was committed while
the offender was engaged in the commission of
burglary in any degree or arson in the first degree.
c. The offender, by his act of murder, armed robbery, or
kidnapping, knowingly created a great risk of death to
more than one person in a public place by means of a
weapon or device which would normally be hazardous
to the lives of more than one person.
d. The offender committed the offense of murder for himself/
herself or another for the purpose of receiving money or any
other thing of monetary value.
e. The murder of a judicial officer, former judicial officer,
district attorney or solicitor-general, or former district
attorney or solicitor-general was committed during or
because of the exercise of his or her official duties.

A-2

[]

[]

[]

[]

[]

[]

[]

[]

[]

[]

[]

[]

f. The offender caused or directed another to commit
[]
[]
murder or committed murder as an agent or employee
of another person.
g. The offense of murder, rape, armed robbery, or
[]
[]
kidnapping was outrageously or wantonly vile,
horrible, or inhuman in that it involved torture,
depravity of mind, or an aggravated battery to the
victim.
h. The offense of murder was committed against any
[]
[]
peace officer, corrections employee, or firefighter while
engaged in the performance of his or her official duties.
i. The offense of murder was committed by a person in,
[]
[]
or who has escaped from, the lawful custody of a peace
officer or place of lawful confinement.
j. The murder was committed for the purpose of avoiding,
[]
[]
interfering with, or preventing a lawful arrest or custody
in a place of lawful confinement of himself/herself or another.
k. The offense of murder, rape, or kidnapping was
[]
[]
committed by a person previously convicted of rape,
aggravated sodomy, aggravated child molestation, or
aggravated sexual battery.
4. List significant nonstatutory aggravating circumstances indicated by the evidence:
a. _______________________________________________________________________
b. _______________________________________________________________________
c. _______________________________________________________________________
d. _______________________________________________________________________
5. Which, if any, of the following mitigating circumstances was in evidence?
a. The defendant has no significant history of prior criminal activity.
[]
b. The murder was committed while the defendant was under the
[]
influence of extreme mental or emotional disturbance.
c. The victim was a participant in the defendant’s homicidal conduct
[]
or consented to the homicidal act.
d. The murder was committed under circumstances which the defendant
[]
believed to provide a moral justification or extenuation for his conduct.
e. The defendant was an accomplice in a murder committed by another
[]
person and his participation in the homicidal act was relatively minor.
f. The defendant acted under duress or under the domination of
[]
another person.
g. At the time of the murder, the capacity of the defendant to
[]

A-3

appreciate the criminality (wrongfulness) of his conduct or to
conform his conduct to the requirements of law was impaired
as a result of mental disease or defect or intoxication.
h. The youth of the defendant at the time of the crime.
[]
i. The evidence, although sufficient to sustain the conviction,
[]
does not foreclose all doubt respecting the defendant’s guilt.
j. Other.
[]
Please explain if (j) is checked: ________________________________________________
6. If tried with a jury, was the jury instructed to consider
mitigating circumstances?
Yes [ ]
No [ ]
7. Does the defendant’s physical or mental condition call
for special consideration?
Yes [ ]
No [ ]
8. Was the victim related by blood or marriage to
defendant?
Yes [ ]
No [ ]
If yes, what relationship? ________________________________________________________
9. Was the victim an employer or employee of the defendant?
No [ ]
Employer [ ]
Employee [ ]
10. Was the victim acquainted with the defendant?
No [ ]
Casual acquaintance [ ] Friend [ ]
11. Was the victim a local resident or transient in the community?
Resident [ ]
Transient [ ]
12. Was the victim the same race as the defendant?
Yes [ ]
No [ ]
13. Was the victim the same sex as the defendant?
Yes [ ]
No [ ]
14. Was the victim held hostage during the crime?
No [ ]
Yes - less than an hour [ ]
Yes - more than an hour [ ]
15. The victim’s reputation in the community was:
Good [ ]
Bad [ ]
Unknown [ ]
16. Was the victim tortured?
Yes [ ]
No [ ]
If yes, state extent of torture: ______________________________________________________
17. What was the age of the victim? _______________________________________________
18. If a weapon was used in commission of the crime, was it:
No weapon used [ ] Blunt instrument [ ] Poison [ ]
Motor vehicle [ ]
Sharp instrument [ ] Firearm [ ]
19. Does the defendant have a record of prior convictions?
Yes [ ]
No [ ]
20. If yes, list the offenses, the dates of the offenses, and the sentences imposed.
Offense
Date of offense
Sentence imposed
a.
b.
c.
d.

__________________________
__________________________
__________________________
__________________________

_____________
_____________
_____________
_____________

A-4

____________________
____________________
____________________
____________________

21. Was there evidence the defendant was under the influence of narcotics or dangerous drugs at
the time of the offense?
Yes [ ]
No [ ]
D. REPRESENTATION OF DEFENDANT
(If more than one counsel served, answer these
questions as to each counsel and attach to this report.)
1. Date counsel secured: _________________________________________________________
2. How was counsel secured:
Retained by defendant [ ]
Appointed by court [ ]
3. If counsel was appointed by court, was it because:
Defendant was unable to afford counsel? [ ]
Defendant refused to secure counsel? [ ]
Other (explain): _______________________________________________________
4. How many years has counsel practiced law?
0 to 5 [ ] 5 to 10 [ ] over 10 [ ]
5. What is the nature of counsel’s practice?
Mostly civil [ ] General [ ] Mostly criminal [ ]
6. Did the same counsel serve throughout the trial? Yes [ ] No [ ]
7. If no, explain in detail: _______________________________________________________
E. GENERAL CONSIDERATIONS
1. Did race appear as an issue in the trial? Yes [ ] No [ ]
2. Was there extensive publicity in the community concerning the case? Yes [ ] No [ ]
3. Was the jury impermissibly influenced by passion, prejudice, or any other arbitrary factor
when imposing sentence? Yes [ ] No [ ]
4. If answer is yes, explain: ______________________________________________________
5. In your opinion, was the death sentence imposed in this case appropriate? Yes [ ] No [ ]
General comments concerning your answer: _________________________________________
_____________________________________________________________________________
F. FORMS FOR REQUIRED JURY CERTIFICATES
[These certificates, required by former Rule II(C)(6) of the Unified Appeal Procedure, have been
superseded by the Jury Composition Rule.]
G. CHRONOLOGY OF CASE
1. Date of offense
2. Date of arrest
3. Date trial began
4. Date sentence imposed
5. Date motion for new trial ruled on

________
________
________
________
________

A-5

Elapsed Days
________
________
________
________

6. Date trial judge’s report completed
________
________
*
7. Date received by Supreme Court
________
________
8. Date sentence review completed*
________
________
*
9. Total elapsed days
________
(*To be completed by the Supreme Court)
This report was submitted to the defendant’s counsel for such comments as counsel desired to
make concerning the factual accuracy of the report, and
1. Defense counsel’s comments are attached
[]
2. Defense counsel offered no comments
[]
3. Defense counsel has not responded
[]
______________
(Date)

_________________________________________
Judge, Superior Court of_______________ County

A-6

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/court_rules%3Aga%3A2aa62399e3fc010a. Public record. Not legal advice.