“I Know Where You Were”… How Police Use of Data Gathering Clashes With Privacy Concerns

One of the great conveniences of life is the ability to pull a cell phone from your pocket and be able to connect with other people and have access to a world of information from wherever you are. The use of cellphone technology in policing has become a significant aspect of any thorough investigation of serious crime. Social media, internet searches, driving directions, text, calls, photos and videos are the obvious breadcrumbs left in cell phones that could be used by law enforcement. Advancing cell phone technology and advancing ability of cell phone carriers to gather data on their users, however, have given law enforcement agencies new and powerful tools for digital evidence gathering. Although having access to a suspect’s phone device is certainly the best evidence, there is much police can do to gather data from cell phone carriers and the vast data banks of Apple and Google. Such investigative techniques, while powerful, raise legitimate concerns about individual rights to privacy.

How does the investigation proceed?

If the suspect is unknown, the initial police investigation focuses on identifying the perpetrator or perpetrators. Since everyone carries a cell phone in their pocket, police focus on identifying what phones may have been present at the time of the crime. If they can establish what phones were there, the prevailing theory is that the owner of that phone is highly likely to be the one who possessed it at the time of the crime. 

A geofence warrant is an increasingly popular way for police to identify suspects who were in the area of a crime at the time it occurred. If the perpetrator was carrying a phone, his or her phone was in almost constant communication with the cell phone carrier and the networks of Apple or Google, tracking every interaction with their networks. Data collected can include such things as GPS locations, Bluetooth activity, connections to WiFi networks, connections to cell towers and other data. This vast combination of data points results in a large amount of valuable data for the carrier and for Apple or Google. This data is what allows them to deliver marketing and other services targeted to their users. Upon a showing of need and with approval of a judge, police can obtain a geofence warrant for these data points. Such warrants define a particular area at a particular time and ask for all devices in the area at the time of the commission of the crime. Obtaining such a warrant only requires law enforcement to demonstrate probable cause that a crime was committed and that the warrant has been narrowly drafted to capture only the likely devices relevant to the investigation. Once provided, law enforcement can then sort through the data and focus their investigation on the particular phones that may have been involved in the crime.

If the geofence warrant identifies a suspect (or if police already have a suspect’s phone information), police can take the next step and seize data from the cell phone carrier. Each cell phone carrier maintains precise data on the location of each user. This is done for both billing purposes and to analyze the strength of their network and service. The network constantly interacts with the user’s phone. The result is a massive amount of data which tracks the location of the phone almost every minute. Law enforcement can seek a search warrant for this data as well. If done timely, police can obtain a search warrant to receive location data for the phone and then map out the minute-by-minute movements of the phone with precision. This is extremely valuable in identifying, tracking, and proving who the perpetrator might be.   

What’s the Defense Strategy?

Oftentimes evidence such as this is powerful and persuasive for a jury. Imagine being able to see the specific movements of a phone over the course of the evening a crime is alleged to have occurred. Due to the powerful effect this type of evidence can have, defense attorneys must account for it and devise strategies to either get it thrown out in court or incorporated into their defense strategy. 

Individuals’ Fourth Amendment rights against unreasonable searches extends to this type of private location data seized by law enforcement. Privacy concerns exist any time the government collects private information of the citizens. Unwarranted surveillance extending beyond the scope of the needs of the investigation harms individuals. Due to these concerns, geofence warrants must show probable cause that a crime was committed and be narrowly tailored to gather only that data that is reasonably necessary to collect. Warrants for individual cell phone location data must show not only probable cause that a crime occurred but the basis to believe the individual subscriber identified participated in the crimes. As such, the general defense strategies surrounding these types of search warrants should focus on whether the police established probable cause to obtain these warrants and whether they were overly broad in scope. Appropriate motions to suppress can be pursued to challenge the legitimacy of these investigative techniques. If such warrants cannot be successfully challenged, the defense strategy must take the information into account in mounting any defense to the charges at hand. 

If you or your family member is charged with any major felony, there’s a high likelihood that cell phone evidence and related search warrants are a part of the investigation. It’s critically important that you talk with an experienced attorney who can mount a comprehensive defense for you or your family member. The attorneys at Wosnik Law are experienced in handling these and other complexities of any major felony case. Give us a call to schedule a free consultation to discuss your case. 

“Fighting Words,” What is and is not Protected Free Speech

Disorderly Conduct is the go-to citation for law enforcement officers when someone is being loud, disruptive, or rowdy, but hasn’t physically attacked anyone or damaged any property.  Disorderly Conduct, commonly shortened to “DOC” is a misdemeanor in Georgia and, as criminal offenses go, it is extraordinarily broad.  It can include anything from pointing and screaming in someone’s face (Mayhew v. State, 299 Ga. App. 313 (2009)) to “violently” shaking a set of keys at them (Crutcher v. State, 267 Ga. App. 410 (2004)).  Depending on the circumstances, one can even be charged with DOC for yelling or using foul language, that is, “Fighting Words.”

Yelling can be Fighting Words under Georgia law.

What are “Fighting Words?”

Subsection (a)(3) of O.C.G.A. § 16-11-39 states that a person commits Disorderly Conduct when they say to another person “opprobrious or abusive words which by their very utterance tend to incite to an immediate breach of the peace, that is to say, words which as a matter of common knowledge and under ordinary circumstances will…naturally tend to provoke violent resentment…commonly called ‘Fighting Words.’”

So what does that mean?  Basically, Fighting Words are any words which are likely to start a fight, riot, public disturbance, or any other “breach of the peace.”  Usually, these are profanities and/or racial slurs, but they don’t have to be.  For example, Georgia courts have found that yelling “This man here is a dog!” can be enough under the right circumstances (Brooks v. State, 166 Ga. App. 704 (1983)).  But that’s the thing, it’s not just the words themselves that are important, but where, how, and to whom the Defendant says them. 

Here are some of the most common situations where we’ve seen people charged with using Fighting Words:

  • People yelling or cursing at police officers.
  • Family members having loud arguments.
  • Students (usually high schoolers) cursing at teachers or each other.
  • People using racial slurs or racist language in public.

Each of these situations can potentially constitute a crime under Georgia law, but not always.  Again, it all depends on the circumstances.

But what about Free Speech?

The First Amendment says that the government “shall make no law…abridging the freedom of speech.”  That may sound pretty clear, but the U.S. Supreme Court has actually ruled that “the right of free speech is not absolute at all times and under all circumstances” and does not protect “the lewd and obscene, the profane, the libelous, and the insulting or ‘fighting’ words” (Chaplinsky v. New Hampshire, 315 U.S. 568 (1942)).  In other words, the government can outlaw some kinds of speech, but not others, and Fighting Words are one kind that the Constitution doesn’t protect.

That said, the government can’t just call any speech it doesn’t like “Fighting Words” and make it illegal.  In fact, Georgia’s current Disorderly Conduct law came about after the Supreme Court struck down the previous statute for being too vague and going too far (Gooding v. Wilson, 405 U.S. 518 (1972)).  The Court clarified that Fighting Words aren’t just any annoying or offensive words, they must be words that would provoke an average person to fight or breach the peace upon hearing them.  The new law, O.C.G.A. § 16-11-39, reflects that and has been found to be constitutional (Lamar v. Banks, 684 F.2d 714 (1982)).

Where’s the line?

So how does the law decide whether any given statement constitutes Fighting Words or not?  Ultimately, this is determined on a case-by-case basis by judges, juries, and appeals courts, but here are some general guidelines to keep in mind:

  • Profanity and Fighting Words are not the same.  While Fighting Words usually involve swearing or cursing, this is not a requirement.  Likewise, using profanity to emphasize a point, rather than to insult or provoke, is not Fighting Words (In re L.E.N., 299 Ga. App. 133 (2009)).
  • At least one person present must be a member of the “public,” rather than a police officer.  While Fighting Words may be directed toward the police, a non-officer must be able to hear them (Wood v. Haynes, 148 Ga. App. 640 (1979)).
  • There doesn’t have to be an identifiable “victim,” but there usually is.  Insults directed at a specific person are much more likely to be Fighting Words than expressions of anger or frustration directed at no one in particular.  The law does not, however, require the prosecution to name a victim or victims (Tucker v. State, 233 Ga. App. 314 (1998)).
  • A direct confrontation must be likely or, at least, possible.  By definition, Fighting Words must be likely to incite a breach of the peace.  If the situation is such that no one hearing the words would be able to react to them (an insult yelled out of a passing car, for example), then they aren’t Fighting Words (Turner v. State, 274 Ga. App. 731 (2005)).

Even though the courts have provided some guidance, the law regarding Fighting Words remains unclear in many cases.  Police officers frequently issue citations and criminal warrants for this charge but, in many cases, are mistaken about what it actually criminalizes.  If you or a loved one have been charged with Disorderly Conduct under Georgia’s Fighting Words law, it’s important to speak with an attorney immediately to discuss possible defenses.  Call our office today for a free consultation.

Getting Credit for Time Served in Georgia Criminal Cases

A question we often get in Georgia criminal cases is whether a criminal defendant will receive credit for the time he or she has served. This usually comes up when a person is arrested for a crime and has spent time in jail before the resolution of the case. In the cases where the defendant bonds out of jail immediately, credit for time served does not come up.

When a defendant is denied bond or cannot pay the bond amount, they may sometimes spend months and even years locked up before trial, a plea, or a dismissal of the case. What happens to all that time that has built up? The simple answer, under Georgia law, is that such a person gets automatic credit for each and every day spent in confinement toward the sentence they were being confined under.

Under O.C.G.A. 17-10-11, a person is to get credit for each and every day for any “pre-trial confinement, for any reason, since the date of arrest, for the offense which is the subject of the sentence; and post-trial confinement awaiting the remitter from an appellate court or transfer to the Department of Corrections or other court ordered institution or facility.”

Exceptions to the Rule

It is important to note that under this particular code section, time served must be given automatically and the judge or prosecutor has no discretion to take it away from the accused. There are instances, however, when credit for time served is not given automatically and it is left to the judge’s discretion, meaning the judge may choose not to give your credit. These instances are listed specifically in O.C.G.A. 17-10-11 and include sentences to a probation detention center, work release program, and for misdemeanor offenses when the time spent in confinement was in a jurisdiction other than that of the sentence.

Another important exception to keep in mind concerns issues with probation. People who are arrested for new crimes while on probation are often arrested separately for a probation violation for committing a new offense. Time spent incarcerated for a probation violation or awaiting a probation revocation hearing may not necessarily be credited to the underlying sentence.

The Importance of Hiring an Attorney

Credit for time served can have a substantial impact on a defendant’s life. It could be the difference between being released at sentencing or going to prison; a fair sentence and an unfair sentence; or freedom or additional confinement. No one wants to spend any more time in confinement than is necessary or required by law. And no one should have to. When dealing with questions of credit for time served, it is important to consult with or hire an attorney who can help you receive credit towards your sentence for every day that you deserve. Call us today for a free consultation.

Understanding Georgia’s New Expungement Law

In the past, if you have been convicted of a crime in Georgia it has been very difficult if not impossible to remove these convictions from your background and criminal history. This has caused problems for countless people, especially for those seeking employment, housing, professional licensing, and more.

One important exception has been First Offender and Conditional Discharge, but these laws usually deal with felonies and can only be used once. If an individual has used first offender and is convicted of a felony thereafter, that felony is essentially there for life.

Several years ago, Georgia passed a retroactive first offender statute, which allows those with a felony conviction, who could have been sentenced as first offenders had they known about it, to petition the court retroactively to receive first offender status. Today Bill SB 288 expands expungement opportunities for many people with criminal history.

The New Law

Adding to these criminal justice reforms, late last year Governor Kemp signed into law SB 288. This act provides potential record expungement for qualifying misdemeanor and felony convictions. Effective January 1, 2021, many misdemeanor and some felony convictions are eligible for record restriction and sealing, effectively removing them from public and private background checks.

For qualifying misdemeanor convictions, a person can petition the Court to restrict up to two convictions four years after the sentence is complete. A sentence is fully complete when all jail time has been served and probation has been terminated. This law applies to all misdemeanors except for those specifically listed under O.C.G.A. 35-3-37(j)(4), which includes traffic offenses (such as DUI), family violence battery, sexual crimes, and more.

For felony convictions, a person must apply for and receive a pardon for the offense before he or she is eligible to petition the court for expungement. This step obviously makes the process more difficult, but a large amount of felony offenses are still available for expungement, excluding crimes such as murder, armed robbery, rape, child molestation, sexual exploitation of a minor, and more.

Bottom Line

SB 288 is a large step forward for criminal justice reform in the State of Georgia and greatly expands expungement relief for many with a criminal histories. If you have questions about whether you are eligible for relief under the new expungement law, give our office a call today and schedule a free consultation.

What is the Georgia Youthful Offender Act?

When facing prison time, many younger criminal defendants and their families are concerned about them entering the prison system. Prison can be a dangerous and troubling place, especially for teens. Unfortunately, a long prison sentence often leads the young offender down a path of further criminality rather than a road to rehabilitation.

Given these concerns, in 1971 Georgia passed the Youthful Offender Act, which targets the treatment of criminal defendants, ages 17 to 24. According to O.C.G.A. § 42-7-8, the sentencing judge can make a written recommendation on the sentence that the defendant receive youthful offender treatment. While the judge can make this recommendation, the Department Corrections ultimately evaluates and then makes the decision whether to treat defendant as a “youthful offender.”

Under O.C.G.A. § 42-7-3 subsection (a), “Youthful offenders shall undergo treatment in secure institutions, including training schools, hospitals, farms, and forestry and other camps and including vocational training facilities and other institutions and agencies that will provide the essential varieties of treatment.” Importantly and to the extent possible, the statute adds, “such institutions and facilities shall be used only for treatment of youthful offenders who have the potential and desire for rehabilitation as provided in this chapter.”

Essentially, young offenders have the chance to go to special facilities for their age group aimed at rehabilitation and skills training. Such programs can make a big difference for those seeking to turn their lives around.

What The Youthful Offender Statute Is Not

Some people may confuse the Youthful Offender Act with the First Offender Act. However, these two statutes do different things. The First Offender act does not deal with opportunities while a defendant is incarcerated. Its purpose–as laid out in a previous blogpost–is to protect a first-time offender from having a life-long felony record.

The Youthful Offender Act is also not a guarantee that a qualifying criminal defendant will be sent to a certain facility or not. As explained above, these decisions are ultimately made by the Department of Corrections, not the sentencing judge.

Bottom Line

If you or a loved one is facing prison time and is under the age of 25 and has goals for rehabilitation, it is important that your attorney request you be sentenced under the Youthful Offender Act to help give the best chance of success. Call today for a free consultation.

What is a 90-Day Bond in Georgia Criminal Law?

Getting a defendant a bond is one of the most crucial stages in any Georgia criminal case. In many cases this happens automatically, such as with misdemeanor offenses. In more serious cases or when there are bad facts following the defendant, a bond must be sought either at the magistrate or higher court depending on the offense. However, even if bond is denied after a hearing, hope for a bond is not necessarily at an end.

The 90-Day Statute

One of the best approaches to getting a bond set when it has been denied by a judge in Georgia, is to assure that the district attorney has complied with O.C.G.A. Section 17-7-50. Except for in death penalty cases, this statute gives the defendant the right to have his or her case put before a grand jury for indictment within 90 days of being incarcerated. If that does not happen and the deadline is passed, the defendant is entitled to having a bond set in their case.

A Few Considerations

While the statute is clear that a bond must be set, it does not indicate the amount of the bond that is required. The bond amount, and conditions/restrictions on the bond are still within judicial discretion. Thus, it is still important to have an attorney advocate for a reasonable bond amount and associated conditions.

A second important consideration is that the statute gives the incarcerated defendant the right to have his case put to the grand jury. Thus, if the prosecutor only accuses the case and does not seek an indictment before the grand jury, a bond still must be set after the 90-day period expires.

The 90-Day Period and COVID-19

Unfortunately, during COVID-19 in Georgia there is a tolling effect going on in Georgia criminal cases with respect to bond. Given the judicial emergency, any time from March 13 until the judicial emergency ends (it is now set to expire on May 13) is tolled or does not count toward the 90 day period for indictment. The practical effect is that there are many individuals sitting in jail without a bond or being indicted in Georgia at this time.

If you or a family member is incarcerated and is seeking bond or otherwise seeking a solution to be released from confinement, contact us today for a free consultation!

Georgia DUI Case Basics

DUIs are some of the most common yet devastating criminal charges in Georgia. Not only can you face jail time and probation when convicted of a DUI, your license can quite easily be suspended for one year just for refusing state administered testing. As such, whether this is your first DUI or one of many, it is crucial to seek an experienced attorney to help you navigate the complex and technical world of DUI law.

Although DUIs are very serious offenses and carry with them stiff penalties and sentences in Georgia, there are several ways in which a competent attorney can advocate for you in your defense and can potentially get your case either reduced to a lesser charge, dismissed, or acquitted at trial. An attorney may also help save you from any license suspension.

Police Car

Administrative License Suspension and Hearing

The three primary ways that a person can suffer a license suspension in a Georgia DUI case is through refusing state administered chemical testing, having a blood alcohol level of .08 or greater, or actually being convicted of a DUI.

In the first event, failing to submit to the state administered chemical test for alcohol can be grounds for an automatic one year license suspension. In such a case, the deputy or trooper will issue what is called a DS-1205 Form. That form advises you that you have thirty days to appeal the license suspension by demanding a hearing on the matter through a written letter and sending a check for $150. After receiving the 1205 Form, you have 30 calendar days to request your appeal with DDS before you license is automatically suspended. Requesting a hearing on time, saves your license at least until the administrative license hearing, which is usually held about 45 to 60 days from the initial incident date and arrest.

At the administrative license hearing, you have two primary options — you can negotiate with the deputy or trooper to agree to dismiss the suspension in exchange for some kind of guilty plea, or you can have a hearing on the matter. At the hearing, the burden is on the State to show by a preponderance of the evidence that your license should remain suspended.

If you lose at the hearing or cannot negotiate a deal with the state, your license will be suspended for one year. This is a hard suspension, meaning that there are no limited or work permits available in such a situation. Thus, it is crucial that you seek the help of an attorney to help you try to save your license.

Fighting a DUI cases

In addition to saving your license, there is also the criminal charge that a person accused of a DUI must face. Almost all DUI arrests end up being misdemeanors, but the minimum jail time and other fines and penalties are greater depending on the amount of priors and when they occurred. Depending on the facts of each individual case, there are many ways to fight a DUI.

For first time offenders of DUI, some jurisdictions offer pre-trial diversion for DUI. This is where you receive a dismissal of your case after paying a program fee and completing any requirements of the program, which can include community service and classes. Pre-trial diversion can be a good option for a first time offender where the evidence against them at trial would be strong or overwhelming.

Similarly, even if a jurisdiction does not offer pretrial diversion or you do not qualify, your attorney may be able to negotiate your DUI charge down to a reckless driving offense based on weaknesses in the case or other circumstances. The major benefit of a reckless driving plea is that it does not automatically suspend your license for one year after conviction and is widely considered a less serious offense for your criminal history.

Additional approaches to a case short of trial may include filing a motions to suppress evidence or statements. In a motion to suppress, a judge may order that certain evidence may not be used against you at trial if your fourth or fifth amendment rights were violated. For example, if an officer stopped a vehicle without reasonable suspension or a roadblock was set up without adhering to legal requirements, the evidence acquired against you as a result may be suppressed by the judge.

Do I Need an Expert Witness in a Georgia Criminal Case?

Many readers may be wondering when it might be useful or necessary to employ an expert witness in a criminal case. For some cases, expert testimony may not be helpful — as, for example, in a simple drug possession case where the drug test is not in question, or in simple battery or assault case. In other types of cases — such as sex offenses or violent crime — retaining an expert witness can mean the difference between a guilty verdict or not guilty verdict, or the dismissal or indictment of a charge. With an allegation of child abuse or molestation, for example, an expert opinion on the techniques used in a forensic video can be invaluable. Similarly, a guns, weapons, or DNA expert may be crucial in a murder or aggravated assault case.

Unfortunately, sometimes the question in cases is not whether an expert would be helpful, but whether a client can afford to hire an expert in a case. An attorney can help you decide how crucial an expert may be for your chances at success, and how expert testimony may be useful to you in your case strategy.

Who Can be Qualified to Testify as an Expert Witness?

The trial judge ultimately decides who can testify as an expert. Georgia courts are generally quite liberal in allowing individuals to testify who demonstrate sufficient education, training, or experience in a certain field of study. For example, medical doctors are usually considered experts by Georgia courts. Similarly, forensic scientists at the Georgia Bureau of Investigation are routinely qualified as experts. In addition to being qualified, the science on which an expert opinion is based, must reach the appropriate legal standard.

O.C.G.A. 24-7-707 provides that in criminal proceedings the opinions of experts “on any question of science, skill, trade, or like questions shall always be admissible.” The Georgia Supreme Court in Harper v. State (249 Ga. 519 (1982)) puts a limit on the scientific procedures or theories an expert opinion relies on. Rather than calculating the consensus in scientific community, Harper leaves it to the trial judge to determine whether a given procedure or technique has “reached a scientific stage of verifiable certainty, or . . . whether the procedure ‘rests upon the laws of nature.'”

In short, an expert’s opinion must be based on scientifically valid methods that pass the Harper standard. If an attorney suspects that an expert’s methods do not pass the Harper standard, he or she can file a motion to exclude the testimony.

Bottom Line

Expert witnesses play an important role in many jury and bench trails across the state. Jurors and judges both are often greatly influenced by the testimony of expert witnesses. Whether you are calling an expert to testify in your defense or attacking the credibility or methods of the state’s expert, a thorough understanding of Georgia expert witness law is essential to any good defense. Contact our office today for a free consultation if you have any questions regarding the law of expert witnesses in Georgia.

Must a Wife or Husband Testify Against Their Spouse in a Georgia Criminal Case?

A question I get often in Georgia criminal cases is whether one spouse must testify against another at trial or a hearing. The simple answer is that there is a spousal immunity privilege for partners who are legally married in Georgia, but that this privilege does not apply in all cases. Put another way, you have a legal right not to testify for or against your spouse in a Georgia criminal proceeding, unless an exception applies.

Exceptions to the Rule

There are several important exceptions to the spousal immunity privilege in Georgia. These are found in Section 25-5-503 of the Georgia Code. You may be required to testify in the following scenarios: First, where one spouse is accused of committing a crime against a child under the age of 18. However, you can only be required to testify regarding the specific acts for which your partner is charged. Second, where you were the victim of the crime either while you were married or before marrying. Lastly, when the accused spouse is charged with damaging either joint marital property or your property.

Another informal exception to the rule is for any communications that you and your spouse had outside of the courtroom. For example, there is no privilege against the state using text messages, emails, letters, videos, or any other out of court communication between you and your spouse to prosecute the case.

Important Points to Keep in Mind

  • The spousal privilege can only be used or asserted by the husband or wife who is not accused of committing the crime. The accused cannot assert the privilege himself. That means that an accused’s spouse could testify against them even if they do not want them to.
  • The privilege dissolves in divorce or when one spouse dies.
  • The privilege can even be asserted even when the spouse is not charged, but where testifying in another proceeding could incriminate that spouse.
  • Marrying another party for the sole purpose of not having to testify against them does not invalidate or waive the privilege

The most important thing to keep in mind is to consult with an attorney before testifying against your spouse. The court nor the prosecutor has a duty to tell you about your right not to testify. And sometimes it is the testimony of one individual that can make or break a case.

Appealing a Criminal Conviction in Georgia

Just because someone has been convicted by a jury and found guilty in a criminal case, doesn’t mean the case is necessarily over. All criminal defendants maintain the right to appeal a conviction. Defendants can file an appeal and request that the conviction be overturned and a new trial granted. In Georgia, murder cases are appealed to the Supreme Court of Georgia and all other felonies are appealed to the Georgia Court of Appeals.

The Mechanics of the Appeal

The first step in getting an appeal in Georgia after conviction is to file what is called a “motion for new trial” within thirty days of the verdict or judgment. Filing even a basic motion for new trial stops the clock from running and allows your attorney the necessary time to request the trial transcripts and compile other evidence. The motion for new trial also gives the defendant an opportunity to try to convince the trial court to overturn the conviction and to grant a new trial.

If the trial judge denies the motion for new trial, a notice of appeal must then be filed within thirty days of the denial. Once the case is docketed with the appellate court and the record is prepared, each side (the defense and the prosecution) prepare briefs that they submit to the court. If necessary, the court can hear oral arguments from each party regarding the contested legal issues. The court will then issue a decision.

What Kind of Issues Can be Addressed in an Appeal?

Some of the most common claims made in a criminal appeal are ineffective assistance of counsel and insufficiency of the evidence. Ineffective assistance of counsel is where the trial attorney’s representation in the case was deficient and where (but for that deficiency) the outcome of the trial would have been different. Examples of ineffective assistance of counsel can include failure to prepare a proper defense, interview witnesses, or object to prejudicial or irrelevant evidence coming in to evidence at trial.

Other appellate issues include prejudicial or irrelevant material being introduced into evidence over the objection of the defense attorney; and denials of motions to suppress evidence or statements made in violation of the Fourth or Fifth Amendments. Appellate lawyers can also challenge comments made by the prosecutor, judge, or witnesses during trial as well as technical issues during jury selection or the charging conference.

Other Ways to Appeal a Conviction

If the Court of Appeals denials your appeal, you can request that the Supreme Court of Georgia review your case through filing a petition for certiorari. These petitions, however, are discretionary — meaning that the court does not have to take your case.

Another way of appealing a criminal conviction is through filing a state petition for habeas corpus. State habeas petitions are civil motions designed to challenge constitutional issues such as ineffective assistance of counsel. After all all avenues have been exhausted, there is such a thing as federal habeas corpus petition as well as extraordinary motions. These final motions are rare, but can be sought if no other options are available.