Hearing on motion for new trial and the need to call witnesses for that hearing. Most of the issues raised in a motion for new trial do not entail any fact-finding, but a motion for new trial based on newly discovered evidence or the ineffective assistance of trial counsel in a criminal case may require the presentation, in some form, of facts not produced at the trial and the judge must evaluate what effect such proof might have had on the result of the trial. There is some disagreement in the Georgia Supreme Court about how this new evidence should be presented at the hearing. In Dickens v. State the defendant moved for new trial on the grounds that counsel was ineffective in not calling a witness who would support the defendant's contention that she was a battered spouse. At the hearing, neither the uncalled witness nor her affidavit were presented. Instead, trial counsel testified to his understanding of what her testimony would have been. Three justices found that this was incompetent, hearsay evidence. A defendant cannot use defense counsel's testimony about what it's uncalled witness had been expected to say in order to establish the truth of that uncalled witness's testimony to establish that the defense was prejudiced by counsel's deficient performance. Three other justices found the counsel's testimony was a proper proffer or offer of proof as to what the uncalled witness's testimony would be at a new trial and was sufficient to present the issue whether the defense was prejudiced by counsel's deficient performance in not calling the witness. The seventh justice concurred in the judgment only, basically leaving a three to three tie. There are two truth issues when defense counsel avers that a witness would say X. The first is whether the witness would or would not in fact say X. The credibility of counsel stands behind this assertion and courts traditionally have accepted counsel's averment of such facts in his place or under oath. Since counsel is present and available for cross-examination, there is no hearsay concern if counsel's statement is only being offered to prove that the witness would say X. The second truth issue is whether X is in fact true and this depends on the credibility of the witness, not counsel. Counsel's hearsay testimony cannot establish the truth of X.
Thus the issue is whether the motion for new trial due to ineffectiveness of counsel requires proof only of what the uncalled witness would say in which case counsel's offer of proof or testimony would suffice, or further requires proof of the truth of the uncalled witness's testimony in which case the witness would have to come forward personally or by affidavit. More specifically, does a trial judge asked if this witness's testimony is true, is it reasonably probable that the jury would have reached a different result? Does the judge have to ask if the jury believes this witness's testimony as true is it reasonably probable that the jury would have reached a different result? The latter seems the proper standard. It is up to the jury to decide the witnesses credibility, moreover, the judge cannot decide the credibility of a witness based on a witness's affidavit. However, there is still room for the judge to consider the probability that the jury would not credit the testimony or give it much weight given the rest of the evidence in the case. In other words, the judge does not have to decide whether the uncalled witness's testimony is true or credible but only whether a reasonable jury, faced with all the evidence in the case, would likely credit the testimony and, if so, would that create a reasonable probability of a different result. When defense counsel proffers the uncalled witness's testimony for this limited purpose, it would not be hearsay. Nevertheless, until a more definitive ruling on this issue comes from the Supreme Court, careful defense counsel should endeavor to procure, at a minimum, an affidavit of the uncalled witness. Contact a Paulding County criminal defense lawyer for help with your case today.