Flournoy v. State

¶1concurring.

¶2I concur in the judgment, but write separately because I disagree with the Court of Appeals cases that exempt the photographic line-up forms from the continuing witness objection.2 In my opinion, the photographic identification forms should not be delivered to the jury for it to consider in reaching a verdict, unlike the actual photographic line-up, which may be delivered if properly admitted into evidence.

¶3Georgia courts allow litigants to object to a written statement as a “continuing witness” to avoid placing undue emphasis on written testimony.3 This objection prevents the writing from going out with the jury to be read and reread during its deliberations.4 Instead, the written testimony is treated like oral testimony that the jury hears only once from a witness.5 Applying this rule, we have held that trial courts should not provide to the jury any answers to interrogatories,6 written dying declarations,7 signed statements of guilt, “ ‘or other instruments of evidence depending for their value on the credibility of the maker.’ ”8

¶4Like the written testimony we have previously found subject to the continuing witness objection, the photographic identification forms introduced in this case are documentary evidence that rely on the maker’s credibility for their value. The witnesses signed a statement that “positively identified photo #5 as being the person who *620committed the offense of murder.” A handwritten note, “90% as shooter,” was added at the bottom of each form. These statements, if read and reread in the jury room, would speak more than once on the disputed issue of the shooter’s identity and unfairly elevate written testimony over similar oral testimony. Therefore, I believe that they should not go out with the jury during its deliberations when the defendant makes a proper objection.

¶5I am authorized to state that Justice Sears joins in this concurrence.