Witness Privilege in a Georgia Divorce

Any witness, whether a party (plaintiff or defendant) or a "third party", may have the right to refuse to answer certain sensitive or embarrassing questions tendered in written discovery, in a deposition, or at trial. The decision to assert privilege must be carefully considered and discussed with counsel.

I. Sources of Privilege:

A. O.C.G.A. § 24-5-505(a) states: “No party or witness shall be required to testify as to any matter which may incriminate or tend to incriminate such party or witness or which shall tend to bring infamy, disgrace, or public contempt upon such party or witness or any member of such party or witness's family.”

Simpson v. Simpson, 233 Ga. 17 (1974) establishes that this statutory privilege may be asserted as to any questions of adultery or “illicit marital misconduct” in family law cases, subject to the inference that the witness, but for the privilege, would have admitted the question.

B. Article 1, § 1, paragraph 16 of the Georgia Constitution states: “No person shall be compelled to give testimony tending in any manner to be self-incriminating.” Bishop v. Bishop, 157 Ga. 408 (1924) establishes that this constitution privilege may be asserted in a divorce case. Georgia constitution protection against self-incrimination is broader that federal protection because the Georgia constitution protection applies to both oral and “real evidence” (tangible documents and things). Fortune v. State, 300 Ga. App. 550 (2009).

C. Fifth Amendment to the U.S. Constitution. The Self-Incrimination clause of the 5th amendment states: “No person shall be compelled in any criminal case to be a witness against himself.” However, this federal constitution right may be asserted a civil case where answers might incriminate the witness in future criminal proceedings. See, U.S. Supreme Court opinion Application of Gault, 387 U.S. 1, 87 S. Ct. 1428 (1967).

II. Some Potential Criminal Issues Relevant in Domestic Cases:

Adultery. Under O.C.G.A. § 16-6-19 “a married person commits the offense of adultery when he voluntarily has sexual intercourse with a person other than his spouse and, upon conviction thereof, shall be punished as for a misdemeanor." A person commits the offense of adultery when he or she has sexual intercourse with a person other than his or her spouse. Owens v. Owens, 247 Ga. 139, (1981).

Sodomy. Under O.C.G.A. § 16-6-2 section (a)(1) “A person commits the offense of sodomy when he or she performs or submits to any sexual act involving the sex organs of one person and he mouth or anus of another.”

Fornication. Under O.C.G.A. § 16-6-18 “an unmarried person commits the offense of fornication when he voluntarily has sexual intercourse with another person and, upon conviction thereof, shall be punished as for a misdemeanor.” Although the Georgia constitutional right of privacy prohibits the state from criminalizing an adult's private, non-commercial acts of sexual intimacy, this statute is still on the books.

Simple Battery. Under O.C.G.A. section 16-5-23(a), a person commits the offense of simple battery when he or she either: (1) intentionally makes physical contact of an insulting or provoking nature with the person of another or (2) intentionally causes physical harm to another.

Simple Assault. Under O.C.G.A. section 16-5-20(a), a person commits the offense of simple assault when he or she either: (1) attempts to commit a violent injury to the person of another or (2) commits an act which places another in reasonable apprehension of immediately receiving a violent injury.

Stalking. Under O.C.G.A. section 16-5-90(a)(1), “a person commits the offense of stalking when he or she follows, places under surveillance, or contacts another person at or about a place or places without the consent of the other person for the purpose of harassing and intimidating the other person …. the term “contact” shall mean any communication …. in person, by telephone, by mail, by broadcast, by computer, by computer network, or by any other electronic device…” (where communication is received is where it is deemed to occur).

III. Application to Production of Private Personal Documents: Privilege may be asserted to any subpoena or request for production of private documents containing personal communications. In Dempsey v. Kaminski Jewelry, Inc., 278 Ga. App. 814 (2006), a case involving only financial documents, the Court stated: “We are well aware that the act of producing documents can violate the privilege against self-incrimination under both the Georgia and United States Constitutions.” However, the Court went on to hold the production of non-private financial documents are not subject to privilege.

IV. How to Assert Privilege / Consequence. The privilege must be asserted to individual questions.

The witness should say “Under the advice of counsel, I am asserting privilege and my right to refuse to answer this question under O.C.G.A. § 25-5-505, Article 1, § 1, paragraph 16 of the Georgia Constitution, and the Fifth Amendment of the U.S. Constitution and any other applicable law. And, additionally, to the extent that it bolsters my rights, I am also asserting my constitutional right to privacy under the Georgia Constitution. Any time I say “privilege” I am referring to all of this authority”.

V. Waiver. Privilege can be waived by voluntarily answering questions without asserting privilege. Accordingly, the witness must be careful to consistently assert privilege.

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