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Ch 2, p.22 CRIMINAL PROCEDURE August 2010
in which the offense was committed of the facts, and for said officer to require the delivery of the
offender.
d. No offense charged—resubmission. If the jury be discharged because the facts set forth do
not constitute an offense punishable by law, the court must order the defendant discharged and his
or her bail, if any, exonerated, or, if the defendant has deposited money instead of bail, that the
money deposited be refunded, or that any conditions upon the defendant’s release from custody be
discharged. If in the court’s opinion a new indictment can be framed upon which the defendant can
be legally convicted, the court may direct that the case be submitted to the same or another grand jury.
2.19(7) The trial judge.
a. Competency of judge as witness. The judge presiding at the trial shall not testify in that trial as
a witness. If the judge is called to testify, no objection need be made in order to preserve the point.
b. Disability of trial judge.
(1) During trial. If by reason of death, sickness or other disability the judge before whom a jury
trial has commenced is unable to proceed with the trial, any other judge regularly sitting in or assigned
to the court, upon certifying familiarity with the record of the trial, may proceed with and finish the
trial.
(2) After verdict or finding of guilt. If by reason of absence, death, sickness or other disability the
judge before whom the defendant has been tried is unable to perform the duties to be performed by the
court after a verdict or finding of guilty, any other judge regularly sitting in or assigned to the court may
perform those duties; but if such other judge is satisfied that such duties cannot be performed because
the judge did not preside at the trial or for any other reason, the judge may, exercising discretion,
grant a new trial.
c. Adjournments declared by trial court. While the jury is absent, the court may adjourn from time
to time for other business, but it shall be nevertheless deemed open for every purpose connected with
the cause submitted to the jury until a verdict is rendered or the jury is discharged.
2.19(8) Motion for judgment of acquittal.
a. Motion before submission to jury. The court on motion of a defendant or on its own motion shall
order the entry of judgment of acquittal of one or more offenses charged in the indictment after the
evidence on either side is closed if the evidence is insufficient to sustain a conviction of such offense
or offenses. If a defendant’s motion for judgment of acquittal at the close of the evidence offered by
the prosecuting attorney is not granted, the defendant may offer evidence without having waived the
right to rely on such motion.
b. Reservation of decision on motion. If a motion for judgment of acquittal is made at the close of
all the evidence, the court may reserve decision on the motion, submit the case to the jury and decide
the motion either before the jury returns a verdict or after it returns a verdict or is discharged without
having returned a verdict.
2.19(9) Trial of questions involving prior convictions. After conviction of the primary or current
offense, but prior to pronouncement of sentence, if the indictment or information alleges one or more
prior convictions which by the Code subjects the offender to an increased sentence, the offender
shall have the opportunity in open court to affirm or deny that the offender is the person previously
convicted, or that the offender was not represented by counsel and did not waive counsel. If the
offender denies being the person previously convicted, sentence shall be postponed for such time
as to permit a trial before a jury on the issue of the offender’s identity with the person previously
convicted. Other objections shall be heard and determined by the court, and these other objections
shall be asserted prior to trial of the substantive offense in the manner presented in rule 2.11. On the
issue of identity, the court may in its discretion reconvene the jury which heard the current offense or
dismiss that jury and submit the issue to another jury to be later impaneled. If the offender is found
by the jury to be the person previously convicted, or if the offender acknowledged being such person,
the offender shall be sentenced as prescribed in the Code.
[66GA, ch 1245(2), §1301; 67GA, ch 153, §50 to 57; Report 1978, effective July 1, 1979; amendment 1979;
amendment 1982; Report December 29, 1992, effective July 1, 1993; November 9, 2001, effective February
15, 2002; June 17, 2010, effective August 16, 2010]
Rule 2.20 Witnesses.
2.20(1) Competency of witnesses; cross-examination of the accused. The rules for determining
the competency of witnesses in civil actions are, so far as they are in their nature applicable, extended
also to criminal actions and proceedings, except as otherwise provided. A defendant in a criminal
action or proceeding shall be a competent witness in the defendant’s own behalf, but cannot be