What’s the Georgia criminal defense process for pretrial immunity hearings?
A person claiming self-defense or another justification in Georgia can ask a judge to decide before trial that they can’t be prosecuted at all. O.C.G.A. § 16-3-24.2 provides that someone who uses threats or force in accordance with §§ 16-3-21, 16-3-23, 16-3-23.1, or 16-3-24 “shall be immune from criminal prosecution,” except when using deadly force with a weapon the person couldn’t lawfully carry. SB 517 added § 16-3-20 and § 17-4-20 to that list for offenses committed after May 2, 2024. The statute sets no filing deadline. In Mitchell v. State (2026), the Supreme Court of Georgia said its text doesn’t bar a motion during or after trial, yet it upheld a judge’s refusal to consider a motion filed on the first day of trial, ruled untimely because the jury had been sworn. Filing well before trial is the safer course.
The process goes as follows:
- File the motion. It’s filed in the superior court, before trial.
- Hearing. The judge hears evidence without a jury. The defense goes first, as it bears the burden.
- Standard. Bunn v. State (2008) requires the defendant to prove entitlement by a preponderance of the evidence.
- Decision. If granted, the prosecution ends for that conduct. If denied, the case goes to trial, and the defendant can still raise self-defense to the jury, where the state must disprove it beyond a reasonable doubt.
- Review. The state can appeal a grant under § 5-7-1. A defendant who loses the motion generally needs interlocutory review or an appeal after conviction.
Testifying is a major decision. A defendant who testifies at the hearing gives the state a preview, and a transcript that could be used for impeachment. Witnesses can testify instead, but the burden is the defendant’s.
The immunity is broad but not unlimited. Excluded situations are in § 16-3-21(b), such as being the aggressor. Civil immunity is separate under § 51-11-9.
General information about Georgia law as of November 2026. It is not legal advice and does not create an attorney-client relationship.