OCGA 24-3-10 Interpretation
In Hardeman v. State 277 Ga. App. 180 (626 SE2d 138) (2006), the victim testified at the defendant's probation revocation hearing but refused to testify at trial, pleading the Fifth Amendment, and was thus deemed unavailable by the trial court. Id at 183 (2).
The Court rejected Hardeman's challenge to the trial court's conclusion that the witness was unavailable, finding that "where . . . a witness is present in the courtroom but refuses to testify, the witness is inaccessible within the meaning of OCGA 24-3-10." Id. at 183-184 (2) (a).
OCGA 24-3-10 provides that the testimony of a witness since deceased, disqualified, or inaccessible for any cause which was given under oath on a former trial upon substantially the same issue and between substantially the same parties may be proved by anyone who heard it and who professes to remember the substance of the entire testimony as to the particular matter about which he testifies.