OCGA 17-8-57 Interpretation
In Starr v. State, 269 Ga. App. 466 (604 SE2d 297) (2004), the trial judge gave virtually the same jury instruction, and the Court considered a similar claim that the instruction violated OCGA 17-8-57.
Under OCGA 17-8-57, it is error for any judge in any criminal case, during its progress or in his charge to the jury, to express or intimate his opinion as to what has or has not been proved or as to the guilt of the accused.
Should any judge violate this Code section, the violation shall be held by the Supreme Court or Court of Appeals to be error and the decision in the case reversed, and a new trial granted in the court below with such directions as the Supreme Court or Court of Appeals may lawfully give.
As the Court held in Starr, the above instruction violated OCGA 17-8-57 and requires reversal because the jurors could have reasonably taken the instruction to be an expression or intimation of the judge's opinion that the minor child's statements were reliable or true. Starr, 269 Ga. App. at 467-468.
Although the trial court realized the error and attempted to correct it by giving curative instructions to the jury, we find that this was not sufficient to cure the violation. Starr, 269 Ga. App. at 468.
In State v. Gardner, 286 Ga. 633 (690 SE2d 164) (2010), after the State finished examining its first witness, the trial court directed the State to "Prove venue. Did you prove venue?" When the prosecutor replied that he had not proven venue "as of yet," the trial court stated, "Why don't we go ahead and do that before we forget it?" Id. This Court found the trial judge violated OCGA 17-8-57, but the Supreme Court reversed, explaining:
Although we strongly discourage the giving of direction or the use of language that could create the appearance of alignment between the trial court and either the prosecution or defense, the trial court did not "express or intimate (its) opinion as to what has or has not been proved," OCGA 17-8-57, because its directive to "(p)rove venue" was immediately followed by a question as to whether venue had been proven. Id. at 635.