Rules of evidence apply to presentence hearings except that hearsay character evidence shall be admissible. However, the rules are more rigorously enforced and reviewed on appeal in capital sentencing hearings before juries than in non-death penalty cases where only the judge is involved in sentencing. The rules of evidence are considerably relaxed in a death penalty sentencing hearing to allow the defendant to present facts in mitigation. The trial court shall allow any evidence that tends towards mitigation and all doubts should be resolved in favor of admissibility. The defendant may testify at the presentence hearing even if he did not testify at the guilt innocence phase of the trial. The defendant may present expert psychiatric or psychological evidence at sentencing if notice is given to the prosecution before the trial and the defendant agrees to submit to a psychiatric evaluation by the state if one is requested. Any evidence acquired by the state in such a psychiatric examination may be used only in rebuttal of defendant's expert psychological evidence at the presentence hearing. What is not admissible in mitigation is evidence that relates to capital punishment in general, such as evidence regarding the means of execution or the non-deterrent effect of capital punishment. Evidence of the victim's bad character is inadmissible except in rebuttal of victim impact evidence. Neither the defense nor the prosecution may present evidence or argue that a particular religious belief command one sentence as opposed to another. The major difference in presentence hearings is that the character of the convicted defendant is in issue and aspects of his crime or crimes, his character and his attitude are admissible, subject to the applicable rules of evidence regarding reliability. Defendant's behavior since arrest, including his conduct in prison, is admissible. Presentence probation reports may be used by the judge only to suspend or probate a sentence, not to lengthen it. In felony cases where the defendant has opted into reciprocal discovery, the prosecution must give pretrial notice to the defense of any evidence in aggravation of punishment that the state intends to introduce at the presentence hearing. The notice must be specific enough to clearly identify each individual conviction or bad act the prosecution intends to offer in evidence.
The pretrial notice requirement gives the defendant a chance to examine his record to determine if the convictions are in fact his, if he was represented by counsel, and any other defect which would render such documents inadmissible during the pre-sentencing phase of the trial. If the state fails to provide pretrial notice, the defendant's prior crimes and bad acts cannot be offered in aggravation of punishment, but the State may use them to specifically rebut evidence presented by the defendant. Arrington v. State, 286 Ga. 335, 348, 687 S.E.2d 438 (2009). The defense must object to any insufficiencies in the notice at the sentencing hearing in order to preserve any error for appellate review. Armstrong v. State 264 Ga. 237 (1994). Evidence in aggravation is not limited to convictions. It is permissible for the State to offer evidence of unproven criminal charges during the sentencing phase of the death penalty trial with the State timely notifies the defendant of its intention to do so. The burden is on the State to produce competent evidence of prior convictions for purposes of sentencing. Under Georgia law, the best evidence of a prior conviction is a certified copy of the conviction itself. Hence, if the defendant timely objects on best evidence grounds, the State must produce a certified copy of the prior conviction in order to prove that the conviction occurred Ramsey v. State 218 Ga. App. 692 (1995). In Ramsey the certified copy of convictions were not offered and the sentence was vacated. Also admissible at sentencing are nolo pleas and juvenile record. The defendant's first offender record is also admissible as well. Williams v. State 258 Ga. 281 (1988). O.C.G.A 17-10-2 (a) or the State proved the defendant's prior felony conviction for the purpose of convicting him of being a convicted felon in possession of firearm, it may not also use those prior convictions in aggravation of punishment. Caver v. State, 215 Ga. App. 711. 1994 the issue of a defendant's future dangerousness is relevant in the sentencing phase if based on evidence adduced at trial or at the hearing. The defendant's right against self-incrimination continues throughout sentencing, even if the defendant pled guilty. No negative inference may be drawn from the defendant's exercise of his right not to testify at the presentence hearing. Fuller v. State 244 Ga. App. 618 (2000). Evidence of the victim's bad character is inadmissible at a sentencing hearing. Dinsky v. State 286 Ga. 839 (2010). Victim impact evidence is admissible in both capital and noncapital presentence hearings. O.C.G.A 17-10-1.1 .17-10-1.2 , the purpose of this evidence is not to impress upon the judge or jury the value of the victim to his family or the community, for this would wrongfully suggest that the law seeks greater or lesser punishment depending on the social status of the victim, nor should victim impact evidence include the witness's opinions about the defendant, the crime, or the appropriate sentence. Bryant v. State 288 Ga. 876 (2011). Instead the victim impact evidence is limited to describing the financial and emotional impact that the crime has had on the victim and those close to the victim. O.C.G.A 17-10-1.1. The statutes give the defense the right to cross-examine and rebut the evidence. In capital sentencing hearings before a jury, the admissibility of victim impact evidence shall be in the sole discretion of the judge and in any event shall be permitted only in such a manner and to such a degree as to not inflame or unduly prejudiced the jury. O.C.G.A 17-10-1.2(a)(2). The trial judge should give a clarifying instruction to the jury, regardless of whether the defense requests one:
the prosecution has introduced what is known as victim impact evidence. Victim impact evidence is not the same as evidence of a statutory aggravating circumstance. Introduction of victim impact evidence does not relieve the state of its burden to prove beyond a reasonable doubt the existence of a statutory aggravating circumstance. This evidence is simply another method of informing you about the harm caused by the crime in question. To the extent that you find that this evidence reflects on the defendant's culpability you may consider it, you may not use it as a substitute for proof beyond a reasonable doubt of the existence of a statutory aggravating circumstance. Turner v. State 268 Ga. 213 (1997). Contact a Paulding county criminal defense lawyer today to help you with your case.